Metropolitan News-Enterprise


Thursday, November 4, 2010


Page 3


Ninth Circuit Overturns Summary Judgment in Dispute Over Movie Rights


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reversed summary judgment entered against a local comedy screenwriter in a dispute over authorship of the National Lampoon’s “TV: The Movie.”

In a decision by Judge Kim McLane Wardlaw, the panel said U.S. District Judge John F. Walter of the Central District of California abused his discretion in denying Amir Ahanchian’s request for more time to file an opposition to the summary judgment motion and criticized defense counsel for having “engage[ed] in hardball tactics designed to avoid resolution of the merits of this case.”

Ahanchian filed suit in 2007 against Xenon Pictures Inc., which had distributed “TV: The Movie,” and others, asserting that he had authored and copyrighted 10 skits which appeared in, or served as the basis for, portions of the film.

The defendants filed a motion seeking dismissal of all of Ahanchian’s claims and for terminating sanctions resulting from a discovery dispute on Aug. 25, 2008, the last possible day for filing such a motion The motions were accompanied by roughly 1,000 pages of supporting exhibits and declarations.

Local Rules

Under the local rules, Ahanchian’s deadline to review these materials and file his opposition was Sept. 2, 2008, the day after Labor Day. On Aug. 28, 2008, Ahanchian asked defense counsel to stipulate to a one-week continuance for the summary judgment hearing since his lead counsel had left the state fulfill a previously-scheduled commitment the day the defendants had filed their motions and would not return until September 2. Ahanchian himself was also scheduled to be out of town over the Labor Day weekend.

Defense counsel declined to so stipulate, and on Aug. 29, 2008, Ahanchian filed an ex parte application seeking a one-week extension to file his opposition. Walter denied the application.

Ahanchian ultimately filed his opposition to the summary judgment motion on Sept. 5, 2008, three days after the deadline, claiming the delay was due to a calendaring mistake and computer problems. He also submitted an ex parte application for permission to make the late filing.

Water construed Ahanchian’s September 5 application as a Federal Rule of Civil Procedure 60(b) motion for reconsideration of his denial of Ahanchian’s August 29 application and found Ahanchian had not demonstrated “excusable neglect” in filing his opposition three days late.

The judge then declined to consider Ahanchian’s version of the facts, concluded

that defendants were not liable on any claim and granted judgment in their favor. He also awarded defense counsel $247,171 in attorneys’ fees.

In her decision for the appellate court, Wardlaw said Ahanchian had demonstrated good cause for his original request for an extension to file his opposition and that Walter therefore had abused his discretion in denying the Aug. 29 ex parte application.

She posited that it was “certainly neither unreasonable nor unexpected,” for Ahanchian and his attorney to be out of town over the Labor Day weekend, adding that counsel’s lack of availability due to a previously planned trip was a sufficient basis for seeking an extension of time.

Absent any indication that Ahanchian had acted in bad faith or that an extension of time would prejudice defendants, Wardlaw concluded Walter had abused discretion in denying Ahanchian’s timely-filed Aug. 29 motion.

Legal Standard

Walter also applied an incorrect legal standard to Ahanchian’s September 5 application to allow his late-filed opposition, by failing to apply the equitable four-factor test set forth in Pioneer Investment Services Co. v. Brunswick Associates. Ltd. Partnership, (1993) 507 U.S. 380, and Briones v. Riviera Hotel & Casino, (1997) 116 F.3d 379, Wardlaw said.

She explained that the Pioneer/Briones balancing test considers “(1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith,” but that Walter had impermissibly focused only on the third factor and ignored the rest. He further compounded his legal error by concluding that a calendaring mistake can not constitute excusable neglect.

Wardlaw reasoned that application of the correct equitable analysis demonstrated Ahanchian’s belatedly filed opposition was the result of excusable neglect since the defendants would not have been prejudiced by the late filing, the three-day delay did not adversely affected either the summary judgment hearing date or the trial, and Ahanchian’s attorney had no history of missing deadlines or disobeying the district court’s orders.

‘Professional Courtesy’

The jurist went on to chastise defense counsel for having “disavowed any nod to professional courtesy,” and taking “knowing advantage of the constrained time to respond created by the local rules, the three-day federal holiday, and Ahanchian’s lead counsel’s prescheduled out-of-state obligation.”

She complained that defense counsel’s “uncompromising behavior” and “unrelenting opposition to Ahanchian’s counsel’s reasonable requests” was “inconsistent with general principles of professional conduct” and “undermine[d] the truth-seeking function of our adversarial system.”

Judges Andrew J. Kleinfeld and Consuelo M. Callahan joined Wardlaw in her decision.

Jeffrey Daar of Daar & Newman represented Ahanchian while Leonard S. Machtinger of Kenoff & Machtinger LLP was joined by Richard L. Charnley, Terry Anastassiou and Ernest E. Price of Ropers, Majeski, Kohn & Bentley as counsel for Xenon.

The case is Ahanchian v. Xenon Pictures, Inc., 08-56667.


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