Kaseberg v. Conaco, LLC

• Decision Date: 16 April 2019
• Docket Number: Case No.: 15-CV-1637 JLS (MSB)
• Court: U.S. District Court — Southern District of California
• Parties: ROBERT ALEXANDER KASEBERG, Plaintiff, v. CONACO, LLC; TURNER BROADCASTING SYSTEM; TIME WARNER, INC.; CONAN O'BRIEN; JEFF ROSS; MIKE SWEENEY; DOES 1-10, inclusive, Defendants.

ROBERT ALEXANDER KASEBERG, Plaintiff, v. CONACO, LLC; TURNER BROADCASTING SYSTEM;TIME WARNER, INC.; CONAN O'BRIEN; JEFF ROSS;MIKE SWEENEY; DOES 1-10, inclusive, Defendants.

Case No.: 15-CV-1637 JLS (MSB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

April 16, 2019

ORDER: (1) DENYING PLAINTIFF'S MOTION TO AMEND COMPLAINT, (2) GRANTING IN PART AND DENYING IN PART MOTIONS IN LIMINE, AND (3) SETTING HEARING ON PROPOSED JURY INSTRUCTIONS AND VERDICT FORM

(ECF Nos. 191-95, 197-98, 200, 202)

Presently before the Court are Plaintiff Robert Alexander Kaseberg's Motion to Amend Scheduling Order and Motion for Leave to Amend[] Plaintiff's First Amended Complaint ("Mot. to Amend," ECF No. 195), as well as Defendants Conaco, LLC; Conan O'Brien; Jeff Ross; Mike Sweeney; Turner Broadcasting System, Inc.; and Time Warner, Inc.'s (ECF Nos. 191, 192, 193, 194) and Plaintiff's (ECF Nos. 197, 198, 200, 202) Motions in Limine, filed pursuant to the schedule set at the February 21, 2019 final pretrial conference. See ECF No. 188. The Court heard oral argument on April 11, 2019. See ECF No. 240. Having reviewed the Parties' arguments and the law, the Court rules as follows.

MOTION TO AMEND

I. Legal Standard

"After a scheduling order has been issued setting a deadline to amend the pleadings, and a party moves to amend the pleadings after the deadline, the motion amounts to one to amend the scheduling order and thus is properly brought under Rule 16(b)." U.S. Bank Nat'l Ass'n v. Wayman, No. 13-CV-02203-BAS BLM, 2015 WL 5772730, at *5 (S.D. Cal. Sept. 30, 2015) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 605, 608 (9th Cir. 1992). "Unlike Rule 15(a)'s liberal amendment policy[,] which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s 'good cause' standard primarily considers the diligence of the party seeking the amendment." Johnson, 975 F.2d at 609. As part of this inquiry,

the movant may be required to show . . . : (1) that she was diligent in assisting the Court in creating a workable Rule 16 order . . . ; (2) that her noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference . . . ; and (3) that she was diligent in seeking amendment of the Rule 16 order, once it became apparent that she could not comply with the order . . . .

Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) (citations omitted). "Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification." Johnson, 975 F.2d at 609 (citing Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985)). "If th[e moving] party was not diligent, the inquiry should end." Id.

If, however, the moving party shows good cause, the party must then demonstrate that amendment is proper under Rule 15(a). Id. at 608 (quoting Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 1987)). Under Rule 15(a), leave to amend is generally granted unless the court harbors concerns "such as undue delay, bad faith or dilatory motive on thepart of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962).

II. Analysis

"Plaintiff seeks to amend his complaint to include a claim for Vicarious Copyright Infringement against Defendant[] Turner Broadcasting System." Mot. to Am. at 3. Plaintiff explains that "[t]his is simply an alternate theory of copyright liability arising from the same set of facts[] that still hinges on direct infringement" and, "during the course of . . . reviewing the specific jury instructions that could be offered at trial, Plaintiff came upon the vicarious infringement instruction and found that it might also apply." Id. at 6. Alternatively, Plaintiff indicates his intention to move to conform to proof pursuant to Federal Rule of Civil Procedure 15(b). Id. at 6-7.

In their Opposition (ECF No. 214), Defendants contend that "Plaintiff cannot demonstrate "good cause" to amend the scheduling order under Rule 16 because he has not been diligent in seeking leave to file his second amended complaint." Id. at 2 (emphasis omitted). Defendants also argue that "Plaintiff's proposed amendment to his complaint should not be allowed under Rule 15 because Plaintiff has already amended once, and further amendment would prejudice Defendants," id. at 5 (emphasis omitted), and "Plaintiff's proposed amendment is futile because he has not alleged—and cannot prove—facts sufficient to support a claim for vicarious copyright infringement." Id. at 7 (emphasis omitted). Finally, "Plaintiff should not be permitted to move to conform the pleadings to the evidence at trial because Defendants do not consent to a trial on vicarious infringement." Id. at 10 (emphasis omitted).

In his Reply (ECF No. 227), Plaintiff appears to concede that he cannot demonstrate good cause. See id. at 3 ("Plaintiff respects Defendants['] good cause argument as it relates to modifying the scheduling order. . . . Other th[a]n the good cause argument to amend the scheduling order, there is no reason Plaintiff should not be allowed to amend."). The Court must agree. This action was filed on July 22, 2015. See generally ECF No. 1. The deadlineto amend the pleadings was April 22, 2016. See generally ECF No. 29. By stipulation, Plaintiff filed a First Amended Complaint on October 3, 2016, see generally ECF No. 58, days before fact discovery closed on October 7, 2016.¹ See generally ECF No. 57. Plaintiff's failure to research all theories of liability prior to filing his Complaint or his First Amended Complaint "is not compatible with a finding of diligence and offers no reason for a grant of relief." See Johnson, 975 F.2d at 609. The Court therefore DENIES Plaintiff's Motion to Amend.²

MOTIONS IN LIMINE

I. Legal Standards

A. Motions in Limine

"Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4 (1984). "A motion in limine is a procedural mechanism to limit in advance testimony or evidence in a particular area." United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). "In the case of a jury trial, a court's ruling . . . gives counsel advance notice of the scope of certain evidence so that admissibility is settled before attempted use of the evidence before the jury." Id. at 1111-12. Any ruling on a motion in limine, however, is necessarily tentative in nature; a "district court may change its ruling at trial because testimony may bring facts to the district court's attention that it did not anticipate at the time of its initial ruling." United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999).

/ / /

B. Motions to Exclude Expert Testimony

Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. Rule 702 "contemplates a broad conception of expert qualifications." Hangarter v. Provident Life & Accident Ins. Co., 598 F.3d 998, 1015 (9th Cir. 2004) (quoting Thomas v. Newton Int'l Enters., 42 F.3d 1266, 169 (9th Cir. 1994)). "Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion." Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010).

On the other side of the equation, "[u]nder Daubert [v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)], the trial court must act as a 'gatekeeper' to exclude junk science that does not meet Federal Rule of Evidence 702's reliability standards." Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 145, 147-49 (1999)). Daubert requires scientific evidence to be both reliable and relevant. 509 U.S. at 590-91, 597. The party seeking to submit expert testimony bears the burden of proving admissibility. Lust ex rel. Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996).

/ / / Another district court in the Ninth Circuit summarized Daubert's reliability prong as follows.

Reliable testimony must be grounded in the methods and procedures of science and signify something beyond "subjective belief or unsupported speculation." The inferences or assertions drawn by the expert must be derived by the scientific method. In essence, the court must determine whether the expert's work product amounts to "'good science.'" In Daubert, the Supreme Court outlined factors relevant to the reliability prong, including: (1) whether the theory can be and has been tested; (2) whether it has been subjected to peer review; (3) the known or potential rate of error; and (4) whether the theory or methodology employed is generally accepted in the relevant scientific community." The Supreme Court emphasized the "flexible" nature of this inquiry. As later confirmed in Kumho Tire, "Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather the law grants a district court the same broad latitude

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