Berry v. Hawaiian Express Ser, et al

MOTION for Judgment as a Matter of Law

D. Haw.March 23, 2006

-1- 398162 KOBAYASHI, SUGITA & GODA LEX R. SMITH 3485-0 THOMAS H. YEE 7344-0 First Hawaiian Center 999 Bishop Street, Suite 2600 Honolulu, Hawaii 96813 Telephone No. (808) 539-8700 Facsimile No. (808) 539-8799 Email: lrs@ksglaw.com KIRKLAND & ELLIS LLP Michael E. Baumann (CA Bar No. 145830) Damian D. Capozzola (CA Bar No. 186412) R. Olivia Samad (CA Bar No. 228611) 777 South Figueroa Street Los Angeles, CA 90017 Telephone No. (213) 680-8400 Facsimile No. (213) 680-8500 Email: mbaumann@kirkland.com Attorneys for Defendant POST-CONFIRMATION TRUST IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII WAYNE BERRY, a Hawaii citizen; Plaintiff, vs. HAWAIIAN EXPRESS SERVICE, INC., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. CV03-00385 SOM-LEK (Copyright) DEFENDANT PCT’S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW AGAINST ENTITLEMENT TO PROFIT AND VICARIOUS LIABILITY Judge: Hon. Susan O. Mollway Case 1:03-cv-00385-DAE-LEK Document 865 Filed 03/23/2006 Page 1 of 2 -2- DEFENDANT PCT’S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW AGAINST ENTITLEMENT TO PROFIT AND VICARIOUS LIABILITY COMES NOW Defendant Post-Confirmation Trust (“PCT”) by and through its attorneys, and hereby renews its motion before this Honorable Court for judgment as a matter of law that there is no evidence in the record to support any claim of profits resulting from the infringement of plaintiff’s work. In addition, the PCT renews its motion against vicarious liability. This motion is based upon Rules 7 and 50(b) of the Federal Rules of Civil Procedure, and is supported by the attached Memorandum of Points and Authorities in Support of Defendant PCT’s Motion for Judgment as a Matter of Law on Entitlement to Profits and Vicarious Liability. DATED: Honolulu, Hawaii, March 23, 2006. /s/ Thoms H. Yee KOBAYASHI, SUGITA & GODA LEX R. SMITH (659-0) THOMAS H. YEE (7344-0) KIRKLAND & ELLIS LLP MICHAEL E. BAUMANN DAMIAN D. CAPOZZOLA R. OLIVIA SAMAD Attorneys for Defendant PCT Case 1:03-cv-00385-DAE-LEK Document 865 Filed 03/23/2006 Page 2 of 2