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| Scheduling Order
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IN THE UNITED STATES DISTRICT COURT Civil Action No. 03-D-2334 (PAC)
KAREN DUDNIKOV and Pro Se Plaintiffs, v.
E! ENTERTAINMENT TELEVISION, INC., Defendant SCHEDULING ORDER |
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1. DATE OF CONFERENCE 2. STATEMENT OF CLAIMS AND DEFENSES a. Plaintiffs: Defendant E! Entertainment Television ("E!") committed Perjury by Misrepresenting in an affidavit to eBay that the plaintiffs' auction was infringing (17 U.S.C. §512). The defendants routinely terminated large numbers of auctions without regard to the items being sold or the wording of the auctions where DVDs originally distributed by E! were being offered for sale on the internet auction site eBay. These terminations were without regard to well established trademark and copyright law and case histories and were not taken to protect E!'s trademark or copyright as much as to attempt to control the on-line auction market. E! attacks eBay auctions because it can do so easily and routinely which will be supported by eBay documents. E! also fails to respond to counter notices filed concerning the termination of these auctions. The eBay User Agreement simply references the eBay VeRO Program ("Verified Rights Owners Program") and there is no wording requiring the acceptance of the program under the User Agreement. The action of terminating the auction and subsequent refusal to discuss the matter resulted in the complaint being filed. Plaintiffs contend that the actions by defendant were with a reckless disregard for the rights of others and constitute tortious business interference under Colorado Law as well as negligent representation under Colorado Law, fraudulent representation under Colorado Law, and misrepresentation under 17 U.S.C. §512(f). b. Defendant: The subject DVD was produced and copyrighted by E! It contains two E! television specials, the E! True Hollywood Story on Jaws and the Michael Essany Show. The DVD was provided without charge for screening purposes only to members of the Academy of Television Arts and Sciences ("ATAS") and the National Academy of Television Arts and Sciences ("NATAS") for the sole purpose of promoting the shows for Emmy consideration. The outside cover of the DVD states that it is for purposes of Emmy consideration. No transfer of ownership was intended or implied. As the holder of the copyright for the DVD, E! has the exclusive right to its distribution. The DVD contains a warning next to E!'s copyright notice stating that any distribution or sale is expressly prohibited. In violation of E!'s copyright, Plaintiffs attempted to auction the DVD on eBay. Because the DVD was not subject to any first sale, the first sale doctrine, upon which Plaintiffs' base their claims, is inapplicable. They thus have no valid ownership rights in the DVD which would allow them to auction it over eBay. As a result, the auction was properly terminated. 3. UNDISPUTED FACTS
The following facts are undisputed:
4. COMPUTATION OF DAMAGES
a. Plaintiff:
b. Defendant:
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5. REPORT OF PRECONFERENCE DISCOVERY AND a. Date of rule 26(f) meeting: March 4, 2004 b. Names of each participant and party he/she represented.
c. Proposed changes, if any, in timing or requirement of disclosures under Fed. R. Civ. P. 26(a)(1). None. d. Statement as to when rule 26(a)(1) disclosures were made or will be made. The parties have exchanged their rule 26(a)(1) disclosures on or before March 22, 2004. e. Statement concerning any agreements to conduct informal discovery, including joint interviews with potential witnesses, exchanges of documents, and joint meetings with clients to discuss settlement. If there is agreement to conduct joint interviews with potential witnesses, list the names of such witnesses and a date and time for the interview which has been agreed to by the witness, all counsel, and all pro se parties. The parties have not agreed to conduct informal discovery at this time, but have agreed to cooperate and consider informal requests by the other party. |
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6. CONSENT All parties have not consented to the exercise of jurisdiction of a magistrate judge. 7. CASE PLAN AND SCHEDULE a. Deadline for Joinder of Parties and Amendment of Pleadings: April 26, 2004. b. Discovery Cut-off: Fact discovery: August 1, 2004. Expert discovery: September 1, 2004. bb. Deadline for 28 U.S.C. § b36(c) consent to a magistrate judge is September 11, 2004, See L.R. 72.2. c. Dispositive Motion Deadline: October 1, 2004. d. Expert Witness Disclosure (1) State anticipated fields of expert testimony, if any. Plaintiffs: None at this time. Defendants: None at this time. (2) State any limitations proposed on the use or number of expert witnesses. None. (3) The parties shall designate all experts and provide opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before August 1, 2004. (4) The parties shall designate all rebuttal experts and provide opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before August 15, 2004. (5) Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B), no exception to the requirements of the rule will be allowed by stipulation of the parties unless the stipulation is approved by the court. e. Deposition Schedule: a schedule with dates is to be filed by June 1, 2004.
f. Interrogatory Schedule The parties will serve initial sets of Interrogatories by May 15, 2004. g. Schedule for Request for Production of Documents The parties will serve initial sets of Requests for Production of Documents by May 15, 2004. h. Discovery Limitations: (1) Any limits which any party wishes to propose on the number of depositions. The parties agree to a maximum of three (3) depositions per side without leave of Court. (2) Any limits which any party wishes to propose on the length of depositions. The parties adopt the limitation set forth in rule 30(d)(2). (3) Modifications which any party proposes on the presumptive numbers of depositions or interrogatories contained in the federal rules. None. (4) Limitations which any party proposes on number of requests for production of documents and/or requests for admissions. Maximum of thirty (30) requests for documents per side; maximum of thirty (30) requests for admissions per side. (5) Other Planning or Discovery Orders None. |
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8. SETTLEMENT The parties certify that they have discussed the possibilities for a prompt settlement, although no settlement has been reached. The parties have agreed to engage in further settlement discussions. 9. OTHER SCHEDULING ISSUES a. A statement of those discovery or scheduling issues, if any, on which counsel, after a good-faith effort, were unable to reach an agreement. None. b. The parties anticipate a 2-day trial to the Court. 10. DATES FOR FURTHER CONFERENCES a. A settlement conference will be held at the request of the parties. It is hereby ordered that all settlement conferences that take place before the magistrate judge shall be confidential. ( ) Pro se parties and attorneys only need be present. ( ) Pro se parties, attorneys, and client representatives with authority to settle must be present. (NOTE: This requirement is not fulfilled by the presence of counsel. If an insurance company is involved, an adjustor authorized to enter into settlement must also be present.) ( ) Each party shall submit a Confidential Settlement Statement to the magistrate judge on or before _______ outlining the facts and issues in the case and the party's settlement position. b. Status conferences will be held in this case at the following dates and times: __________ c. A final pretrial conference will be held in this case on March 1, 2005 at 9 o'clock am. A Final Pretrial Order shall be prepared by the parties and submitted to the court no later than five days before the final pretrial conference. 11. OTHER MATTERS In addition to filing an appropriate notice with the clerk's office, counsel must file a copy of any notice of withdrawal, notice of substitution of counsel, or notice of change of counsel's address or telephone number with the clerk of the magistrate judge assigned to this case. In addition to filing an appropriate notice with the clerk's office, a pro se party must file a copy of a notice of change of his or her address or telephone number with the clerk of the magistrate judge assigned to this case. With respect to discovery disputes, parties must comply with D.C.COLO.LCivR 7.1A. The parties filing motions for extension of time or continuances must comply with D.C.COLO.LCivR 6.1D. by submitting proof that a copy of the motion has been served upon the moving attorney's client, all attorneys of record, and all pro se parties.
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12. AMENDMENTS TO SCHEDULING ORDER The scheduling order may be altered or amended only upon a showing of good cause. DATED this 30th day of March, 2004. BY THE COURT:
Patricia A. Coan |