Armes v. Post

Case 2:20-cv-03212-ODW-SK Document 88 Filed 04/08/22 Page 1 of 11 Page ID #:1459
1 DAVID A. STEINBERG (SBN 130593)

das@msk.com
2 GABRIELLA N. ISMAJ (SBN 301594)
gan@msk.com
3 MITCHELL SILBERBERG & KNUPP LLP
2049 Century Park East, 18th Floor
4 Los Angeles, CA 90067-3120
Telephone: (310) 312-2000
5 Facsimile: (310) 312-3100
6 CHRISTINE LEPERA (pro hac vice)
ctl@msk.com
7 JEFFREY M. MOVIT (pro hac vice)
jmm@msk.com
8 437 Madison Avenue, 25th Floor
New York, New York 10022
9 Telephone: (212) 509-3900
Facsimile: (212) 509-7239
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Attorneys for Defendants
11 Austin Richard Post p/k/a Post Malone
Adam King Feeney p/k/a Frank Dukes
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13 UNITED STATES DISTRICT COURT
14 CENTRAL DISTRICT OF CALIFORNIA
15 WESTERN DIVISION
16 TYLER ARMES, Case No. 2:20-cv-03212 ODW (SKx)
Consolidated with 2:20-cv-10205
17 Plaintiff
Hon. Otis D. Wright II
18 v.
DEFENDANTS’ NOTICE OF
19 AUSTIN RICHARD POST, publicly MOTION AND MOTION IN
known as POST MALONE, an LIMINE #1 TO STRIKE
20 individual; ADAM KING FEENEY PLAINTIFF’S DEMAND FOR
publicly known as FRANK DUKES, an JURY TRIAL
21 individual; UNIVERSAL MUSIC
GROUP, INC., a Delaware corporation; Pre-Trial Conference:
22 DOES 1 through 10, inclusive, April 25, 2022 at 1:30 p.m.
23 Defendants Hearing on Motions In Limine:
May 9, 2022 at 1:30 p.m.
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Trial: May 17, 2022 at 9:00 a.m.
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DEFENDANTS’ MOTION IN LIMINE #1 TO STRIKE PLAINTIFF’S DEMAND FOR JURY TRIAL

1 NOTICE OF MOTION AND MOTION

2 TO THE COURT, THE PARTIES AND THEIR COUNSEL OF RECORD:
3 PLEASE TAKE NOTICE that on May 9, 2022, at 1:30 p.m., or as soon as
4 the matter may be heard in the courtroom of the Honorable Otis D. Wright II,
5 Defendants Austin Richard Post p/k/a Post Malone (“Post”) and Adam King
6 Feeney p/k/a Frank Dukes (“Dukes,” together with Post, “Defendants”), will and
7 hereby do move for an order, pursuant to Federal Rule of Civil Procedure 39,
8 striking Plaintiff Tyler Armes’s (“Plaintiff” or “Armes”) jury demand and ordering
9 that all remaining issues in this action be tried at a bench trial.
10 This Motion is made on the grounds that, as a matter of law, Armes is not
11 entitled to a jury trial on (i) any of the claims in Armes’s First Amended Complaint
12 (ECF 24), (ii) the claims in Post’s Consolidated Complaint (ECF 28-1, Ex. 5), or
13 (iii) Armes’s affirmative defenses in his Answer to the Consolidated Complaint
14 (ECF 46), all of which are equitable in nature.
15 This Motion is made following the conference of counsel pursuant to Local
16 Rules 7-3 and 16-2. Declaration of David Steinberg dated April 8, 2022 (Steinberg
17 Decl.), ¶ 3. The parties’ respective positions regarding Armes’s entitlement to a
18 jury trial have been addressed in the parties’ prior briefing, including in connection
19 with Defendants’ motion for summary judgment. Steinberg Decl., ¶ 4; see also,
20 e.g., ECF 86 at 4, n.3. The parties again addressed these issues in connection with
21 a conference of counsel which took place on March 18, 2022. Steinberg Decl., ¶ 3.
22 Following the conference of counsel, the parties conferred by email regarding the
23 entitlement to a jury trial in this action. Id., ¶ 5.
24 This Motion is based upon this Notice of Motion, the accompanying
25 Memorandum of Points and Authorities, any supporting declarations, any further
26 briefing regarding this Motion, all pleadings and other records on file in this action,
27 and such further evidence and arguments as may be presented at or before any
Mitchell 28 hearing on the Motion.
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Dated: April 8, 2022 MITCHELL SILBERBERG & KNUPP LLP
2 DAVID A. STEINBERG
CHRISTINE LEPERA
3 JEFFREY M. MOVIT
GABRIELLA N. ISMAJ
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6 By: /s/ David A. Steinberg
David A. Steinberg (SBN 130593)
7 Attorneys for Defendants
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1 MEMORANDUM OF POINTS AND AUTHORITIES1

2 I. INTRODUCTION
3 As the Court is very familiar with the facts at issue in this action, Defendants
4 will not burden the Court with restating those facts again here. At its core, this
5 action is about two declaratory judgment claims, one asserted by Armes, and one
6 asserted by Post, each seeking the opposite relief. Armes seeks a declaratory
7 judgment that Armes is an author and copyright owner of the musical composition
8 “Circles” (the “Circles Composition”). ECF 24 (“FAC”), ¶ 34 & Prayer for Relief,
9 ¶ 1. Conversely, Post seeks a declaration that Armes is neither an author nor a
10 copyright owner of the Circles Composition. ECF 28-1, Ex. 5 (“Consolidated
11 Complaint”), ¶ 24 & Prayer for Relief, ¶ A. These mirror-image claims are
12 collectively referred to as the “Cross-Declaratory Judgment Claims.”
13 While initially both Armes and Post requested a trial by jury to preserve
14 their rights, it is now apparent that there is no basis for a jury trial in this action.2
15 The Cross-Declaratory Judgment Claims, Armes’s purported accounting and
16 constructive trust “claims,” and Armes’s affirmative defenses in his Answer to the
17 Consolidated Complaint are all equitable in nature. Equitable claims are tried to
18 the Court, not a jury. As such, Armes is not entitled to a jury trial. The Court
19 should strike Armes’s jury demand and enter an order that all remaining issues in
20 the case be tried at a bench trial.3
21 II. ARGUMENT
22 A motion to strike a jury demand can properly be submitted as a motion in
23 limine. See, e.g., Viveros v. Donahoe, 2012 WL 12883966, at *5 (C.D. Cal. May
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Unless noted, all emphasis is added and all citations and quotation marks omitted.
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26 If the Court is in accord with the relief sought by this Motion, Defendants intend to withdraw
their demand for a jury trial.
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Striking Armes’s jury demand will also prevent prejudice and further the interests of judicial
economy because the parties will not have to unnecessarily spend time and resources drafting,
Mitchell 28 objecting to, and adjudicating jury instructions and verdict forms.
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1 22, 2012) (granting motion in limine to strike jury demand); Sanjiv Goel, M.D.,
2 Inc. v. Motion Picture Indus. Pension and Health Plan, 2015 WL 12656910, at *3
3 (C.D. Cal. Feb. 13, 2015) (same). Indeed, “a court has the discretion to permit a
4 motion to strike a jury demand at any time, even on the eve of trial.” Hope Med.
5 Enters., Inc. v. Fagron Compounding Servs., LLC, 2021 WL 2941546, at *2 n.1
6 (C.D. Cal. July 12, 2021) (granting motion to strike jury demand filed 8 weeks
7 before trial).
8 Notwithstanding that a party demands a jury trial, such need not be held
9 where “the court, on motion or on its own, finds that on some or all of those issues
10 there is no federal right to a jury trial.” Fed. R. Civ. P. 39(a)(2). To assess
11 whether the right to a jury trial attaches to a proceeding, the Court must determine
12 whether the claims at issue are legal or equitable in nature. Chauffeurs, Teamsters
13 and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564-65 (1990); Siegel v.
14 Warner Bros. Entm’t Inc., 581 F. Supp. 2d 1067, 1069 (C.D. Cal. 2008) (“[T]he
15 distinction between the legal or equitable nature of the rights and remedies at issue
16 in the proceeding has become the guidepost for federal courts in determining
17 whether the Seventh Amendment right to trial by jury attached to the proceedings
18 before it.”).
19 Whether a particular action will resolve legal or equitable rights depends on
20 (1) the nature of the issues involved, and (2) the remedy sought. Siegel, 581 F.
21 Supp. 2d at 1069. Specifically, “[f]irst, [courts] compare the … action to 18th-
22 century actions brought in the courts of law and equity. Second, [courts] examine
23 the remedy sought and determine whether it is legal or equitable in nature.” Tull v.
24 U.S., 481 U.S. 412, 417-18 (1987). This analysis is done on a claim by claim
25 basis: “[i]t is the nature of the particular claim to be tried that is determinative, not
26 the character of the overall action.” Siegel, 581 F. Supp. 2d at 1069.
27 The Supreme Court has instructed that the second inquiry (the nature of the
Mitchell 28 remedy sought) is more important in determining the right to a jury trial than the
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1 first. Tull, 481 U.S. at 421; Spinelli v. Gaughan, 12 F.3d 853, 855-56 (9th Cir.
2 1993) (collecting cases); Siegel, 581 F. Supp. 2d at 1069. Indeed, even if a claim is
3 found to be legal (as opposed to equitable) under the first inquiry, if the only
4 remedies sought or available are equitable, then a demand for jury trial should
5 nonetheless be stricken. See, e.g., Spinelli, 12 F.3d at 857-58 (even though claim
6 was legal in nature, where remedy was equitable in nature “a jury trial was not
7 required”). In addition, “[a] litigant is not entitled to have a jury resolve a disputed
8 affirmative defense if the defense is equitable in nature.” Granite State Ins. Co. v.
9 Smart Modular Techs., Inc., 76 F.3d 1023, 1027 (9th Cir. 1996); Danjaq LLC v.
10 Sony Corp., 263 F.3d 942, 962 (9th Cir. 2001).
11 The Cross-Declaratory Judgment Claims, Armes’s purported accounting and
12 constructive trust “claims,” and Armes’s affirmative defenses in his Answer to the
13 Consolidated Complaint are all equitable. His jury demand should be stricken.
14 A. Armes Is Not Entitled To A Jury Trial In Connection With The
15 Claims Asserted In This Action
16 1. The Cross-Declaratory Judgment Claims Are Equitable In
17 Nature Because They Seek To Quiet Title To A Copyright
18 In classifying the nature of a particular cause of action as legal or equitable
19 under the first part of the inquiry, courts generally look for an analogy to some
20 action known when the Seventh Amendment was adopted. Spinelli, 12 F.3d at 856
21 (collecting cases). The Cross-Declaratory Judgment Claims seek determinations as
22 to whether Armes is or is not a co-owner of the Circles Composition. The Cross-
23 Declaratory Judgment Claims are thus most similar to actions to quiet title, claims
24 traditionally heard by courts of equity. See, e.g., U.S. v. McHan, 345 F.3d 262,
25 275-76 (4th Cir. 2003) (collecting cases showing “claims for the type of relief
26 offered by a quiet title suit have always been equitable actions, brought in courts of
27 equity rather than courts of law”); Unidisc Music, Inc. v. Shelby, 2019 WL
Mitchell 28 3291578, at *4 (C.D. Cal. Mar. 19, 2019) (claim seeking declaration “to restore
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1 and protect [the plaintiff’s] copyright interests … is similar to an action to quiet

2 title—a claim traditionally heard by courts of equity”); Openwave Sys. Inc. v.
3 Myriad France S.A.S., 2011 WL 2580991, at *2 (N.D. Cal. June 29, 2011)
4 (declaratory relief claim regarding assignment of disputed patents—“essentially
5 seek[ing] to quiet title to its intellectual property”—was equitable). The first
6 inquiry strongly favors classifying the Cross-Declaratory Judgment Claims as
7 equitable.
8 2. Armes Has Conceded That His Purported Accounting And
9 Constructive Trust “Causes Of Action” Fail
10 While Armes styled his requests for an accounting and constructive trust as
11 “causes of action,” as Defendants’ pending motion for summary judgment made
12 clear, these are equitable remedies, not causes of action. ECF 82-1 at 22-23.
13 Armes did not argue against their dismissal whatsoever (ECF 86 at 12), thereby
14 conceding their lack of merit. See, e.g., Silva v. U.S. Bancorp, 2011 WL 7096576,
15 at *3 (C.D. Cal. Oct. 6, 2011) (“Plaintiff concedes his recordkeeping claim should
16 be dismissed by failing to address Defendants’ arguments in his Opposition”); GN
17 Resound A/S v. Callpod, Inc., 2013 WL 1190651, *5 (N.D. Cal. 2013) (same).
18 Accordingly, the Court need not even reach the issue of Armes’s non-entitlement
19 to a jury for these purported “claims,” which, in any event, are indisputably
20 equitable. Infra, at 6.
21 3. The Remedies Sought By The Cross-Declaratory Judgment
22 Claims Are Equitable In Nature
23 The second, more important, prong of the test also weighs heavily against
24 any right to a jury trial. Neither Armes nor Post seek any monetary damages.
25 Rather, the parties seek only the following remedies:
26 Declaratory Relief: Armes seeks a “declaration of rights” that he is (i) a co-
27 writer of the Circles Composition, (ii) entitled to a co-writer credit on the copyright
Mitchell 28 to the Circles Composition, and (iii) entitled to royalties and other money owed
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1 with respect to his interest in the Circles Composition. FAC, ¶ 34 & Prayer for
2 Relief, ¶ 1. Post seeks a “judicial declaration” that (a) Armes did not write or
3 author any portion of the Circles Composition, (b) Armes is not an “author” of the
4 Circles Composition, and (c) due to Armes’s lack of authorship, Armes does not
5 have a valid copyright in the Circles Composition. Consolidated Complaint, ¶ 24
6 & Prayer for Relief, ¶ A. Claims seeking declarations of rights such as the Cross-
7 Declaratory Judgment Claims are routinely treated as equitable. See, e.g., Unidisc
8 Music, 2019 WL 3291578, at *5 (“It is well-established that rescission and
9 declaratory relief are equitable remedies.”); Robateau v. Wells Fargo Home
10 Mortg., 2015 WL 12765587, at *3 (C.D. Cal. May 7, 2015) (“[D]eclaratory relief
11 is an equitable remedy available when legal remedies will not suffice.”); Munguia
12 v. Wells Fargo Bank N.A., 2015 WL 3751811, at *3 (C.D. Cal. June 16, 2015)
13 (“[D]eclaratory relief is an equitable remedy[.]”).
14 Indeed, courts routinely strike jury demands which seek judicial declarations
15 regarding ownership of intellectual property rights. See, e.g., Baker v. Baker, 2018
16 WL 3216509, at *5 (C.D. Cal. June 27, 2018), aff’d in part, vacated in part on
17 other grounds, remanded, 860 F. App’x 502 (9th Cir. 2021) (no jury trial for
18 declaration “that splits for writer credits . . . were appropriately reported”); Unidisc
19 Music, 2019 WL 3291578, at *4 (granting motion to strike jury demand for claim
20 seeking declaration “to restore and protect [the plaintiff’s] copyright interests”);
21 Marvel Characters, Inc. v. Simon, No. 00-CV-1393 (RCC), ECF 39 at 2:23-3:5
22 (S.D.N.Y. Mar. 14, 2003) (granting motion to strike a jury demand because
23 whether Marvel owned a copyright was “most akin to a quiet title action”)4;
24 Openwave, 2011 WL 2580991, at *2 (issues of disputed ownership of patent not
25 triable by jury). Leading copyright commentator Melville B. Nimmer also notes
26 that “a plaintiff seeking only remedies determined by the judge—e.g., injunction,
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See Gary Friedrich Enterprises, LLC. et al v. Marvel Enters., Inc. et al, 1:08-CV-01533, ECF
Mitchell 28 355, Singer Decl. Ex. C at 2:23-3:5.
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1 seizure, fees, and declaratory relief—is not entitled to a trial by jury. That
2 conclusion applies to the copyright sphere as to all others.” 3 Melville B. Nimmer
3 & David Nimmer, Nimmer on Copyrights § 12.10[A] (2020). “To the extent that
4 a simple declaration of rights is sought, the action is equitable.” Id.
5 Accounting and Constructive Trust: Armes also seeks an accounting of all
6 revenues derived from the exploitation of the Circles Composition by Defendants
7 (FAC, ¶¶ 35-39 & Prayer for Relief, ¶ 2) and a constructive trust over the proceeds
8 from the exploitation of the Circles Composition (FAC, ¶¶ 40-44 & Prayer for
9 Relief, ¶ 3). Again, Armes has conceded that his claims for an accounting and a
10 constructive trust lack merit by failing to address them in opposition to
11 Defendants’ motion for summary judgment. Supra, at 4. But even assuming these
12 remedies survive Defendants’ motion for summary judgment, there can be no
13 legitimate dispute that these remedies are equitable. See, e.g., Oddo v. Ries, 743
14 F.2d 630, 633 (9th Cir. 1984) (duty to account between copyright co-owners
15 derived from “equitable doctrines relating to unjust enrichment and general
16 principles of law governing the rights of co-owners”); Siegel, 581 F. Supp. 2d at
17 1073-74 (no jury trial for accounting claims that arose “from the respective
18 relationship [the parties] have to one another as tenants in common, co-owners of
19 certain intellectual property (a copyright)”) (collecting cases); Edward B. Marks
20 Music Corp. v. Wonnell, 4 F.R.D. 146, 146-47 (S.D.N.Y. 1944) (no jury trial for
21 accounting of profits between purported co-owners to song); Am. Universal Ins.
22 Co. v. Pugh, 821 F.2d 1352, 1356 (9th Cir. 1987) (constructive trust is “purely an
23 equitable remedy … not triable by a jury”; “an accounting is an equitable remedy”)
24 (affirming denial of request for jury trial); Towers v. Titus, 5 B.R. 786, 792 (N.D.
25 Cal. 1979) (imposition of constructive trust is “clearly equitable”) (striking jury
26 demand); Jordan v. Star Trak Entm’t, Inc., 2010 WL 454374, at *2 (C.D. Cal. Feb.
27 8, 2010) (“An accounting is an equitable remedy”).
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1 Both the nature of the Cross-Declaratory Judgment Claims and the relief
2 sought demonstrate that these claims are equitable, not legal. As such, Armes is
3 not entitled to a trial by jury and his jury demand should be stricken.
4 B. Armes Is Not Entitled To A Jury Trial On His Equitable
5 Affirmative Defenses
6 In his Answer, Armes asserts the equitable affirmative defenses of laches,
7 estoppel, unclean hands, waiver, and unjust enrichment5, as well as the purported
8 defenses of “failure to state a claim” and “invalid copyright registration.” ECF 46.
9 Armes’s defenses of laches, estoppel, unclean hands, waiver, and unjust
10 enrichment are equitable defenses for the Court, not the jury. See, e.g., Hope Med.,
11 LLC, 2021 WL 2941546, at *6 (“Waiver, acquiescence, and estoppel; laches; and
12 unclean hands are equitable defenses”) (striking jury demand); Granite State Ins.
13 Co., 76 F.3d at 1027 (estoppel defense for court, not jury); JIPC Mgmt., Inc. v.
14 Incredible Pizza Co., Inc., 2009 WL 8591607, at *19 (C.D. Cal. July 14, 2009)
15 (“[U]nclean hands defense is equitable . . . there is no right to jury trial on this
16 defense”); Scott v. SN Servicing Corp., 2019 WL 13062489, at *5 n.6 (C.D. Cal.
17 Feb. 19, 2019) (“equitable defense of unjust enrichment”).
18 Armes’s purported “defenses” of “failure to state a claim” and “invalid
19 copyright registration” are not affirmative defenses, nor are they supported by any
20 facts in the record. Hope Med., 2021 WL 2941546, at *6 (defense that “attacks the
21 merits of the plaintiff’s case” is “not an affirmative defense”); Brodetsky v. Sync
22 Brokerage, Inc., 2020 WL 8993117, at *2 (C.D. Cal. Dec. 22, 2020) (“failure to
23 state a claim is not an affirmative defense” and striking defense with prejudice).
24 Again, both parties filed mirror-image declaratory judgment claims; there is simply
25 no legitimate basis to claim that Defendants have failed to state a claim. And
26 Armes’s purported defense of “invalid copyright registration” does not even exist.
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Defendants assume that “unjust enrichment” is a true “affirmative defense” solely for purposes
Mitchell 28 of this Motion, and reserve all rights to challenge the validity of that defense.
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1 Accordingly, these purported “defenses” are immaterial to whether a jury trial is

2 warranted here (and frankly, should be stricken, with prejudice).
3 III. CONCLUSION
4 Defendants respectfully request that the Court grant their Motion In Limine
5 #1 to strike Armes’s demand for a jury trial. To the extent that this Court does not
6 find that the entirety of this action should be tried before a judge, Defendants
7 respectfully request that any legal and equitable issues be bifurcated for trial.
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9 Dated: April 8, 2022 MITCHELL SILBERBERG & KNUPP LLP
DAVID A. STEINBERG
10 CHRISTINE LEPERA
JEFFREY M. MOVIT
11 GABRIELLA N. ISMAJ
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13 By: /s/ David A. Steinberg
David A. Steinberg (SBN 130593)
14 Attorneys for Defendants
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Armes v. Post

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Case 2:20-cv-03212-ODW-SK Document 88 Filed 04/08/22 Page 1 of 11 Page ID #:1459

1 DAVID A. STEINBERG (SBN 130593)

DEFENDANTS’ MOTION IN LIMINE #1 TO STRIKE PLAINTIFF’S DEMAND FOR JURY TRIAL

1 NOTICE OF MOTION AND MOTION

1 MEMORANDUM OF POINTS AND AUTHORITIES1

1 and protect [the plaintiff’s] copyright interests … is similar to an action to quiet

1 Accordingly, these purported “defenses” are immaterial to whether a jury trial is

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