Case 1:15-cv-00419-WES-PAS Document 158 Filed 11/13/17 Page 1 of 6 PageID #: 4768
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF RHODE ISLAND
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`Case No. 1:15-cv-419-S-PAS
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`MARKHAM CONCEPTS, INC., SUSAN
`GARRETSON, and LORRAINE MARKHAM,
`individually and in her capacity as Trustee of the Bill
`and Lorraine Markham Exemption Trust and the
`Lorraine Markham Family Trust,
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`Plaintiffs,
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`v.
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`HASBRO, INC., REUBEN KLAMER, DAWN
`LINKLETTER GRIFFIN, SHARON LINKLETTER,
`MICHAEL LINKLETTER, LAURA LINKLETTER
`RICH, DENNIS LINKLETTER, THOMAS
`FEIMAN, in his capacity as co-trustee of the Irvin S.
`and Ida Mae Atkins Family Trust, ROBERT
`MILLER, in his capacity as co-trustee of the Irvin S.
`and Ida Mae Atkins Family Trust, and MAX
`CANDIOTTY, in his capacity as co-trustee of the
`Irvin S. and Ida Mae Atkins Family Trust.
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` Defendants.
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`REUBEN KLAMER,
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` Counterclaim Plaintiff,
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`v.
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`MARKHAM CONCEPTS, INC., SUSAN
`GARRETSON and LORRAINE MARKHAM,
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` Counterclaim-Defendants.
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`DEFENDANT AND COUNTERCLAIM PLAINTIFF REUBEN KLAMER’S
`OPPOSITION TO PLAINTIFFS’ SUPPLEMENTAL MOTION TO PRECLUDE
`UNTIMELY CONTENTIONS AND MOTION TO STRIKE KLAMER’S
`SUPPLEMENTAL DISCOVERY RESPONSES
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`1414942.3
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`Defendant and Counterclaim Plaintiff Reuben Klamer (“Klamer”) respectfully submits
`this Opposition to the Supplemental Motion to Preclude Untimely Contentions and Motion to
`Strike Klamer’s Supplemental Discovery Responses (the “Supplemental Motion”) (ECF No.
`142), brought by the Plaintiffs Markham Concepts, Inc., Lorraine Markham, and Susan
`Garretson (the “Markham Parties”).
`On November 2, 2017, the Markham Parties filed a Motion to Preclude Hasbro’s
`Untimely Contentions and Motion to Strike Hasbro’s Supplemental Discovery Responses (the
`“Hasbro Motion”), and on November 6, they filed the Supplemental Motion against Klamer. In
`the Supplemental Motion, the Markham Parties argued that “[f]or substantially the same reasons
`as outlined in the Hasbro Motion (which is hereby incorporated by reference), Klamer and all
`Defendants should be precluded from asserting that the Game of Life was a work-for-hire for
`Bill Markham by his employees, and all corresponding discovery responses should be struck.”
`As such, Klamer joins in the Opposition to Plaintiffs’ Motion to Preclude Hasbro’s
`Untimely Contentions and Motion to Strike Hasbro’s Supplemental Discovery Responses filed
`by Defendant Hasbro, Inc. on November 9 (the “Hasbro Opposition”) (ECF No. 155), and
`hereby incorporates it by reference. To the extent that the reasoning of the Hasbro Opposition
`applies to Klamer, he hereby adopts it as his own.
`In the Supplemental Motion, the Markham Parties argue that “Klamer’s supplementation
`to assert the New Theory [that the Markham Parties are precluded from terminating under 17
`U.S.C. § 304(c) because The Game of LIFE (the “Game”) was a work made for hire by
`Markham’s employees for the benefit of Markham] is even more egregious than Hasbro’s
`already-untimely supplementation. Klamer asserted the theory even later than Hasbro did, and
`more crucially, had access to all the key witnesses and facts as early as 2015.” Supplemental
`Motion at 3 (italics in original). However, this argument misses the mark for the same reasons
`asserted by Hasbro in their Opposition: “Fundamentally, Hasbro’s [and Klamer’s]
`supplementation was not directed toward a new legal theory by Hasbro [or Klamer]. Rather, it
`was in response to an undisclosed theory of the Markham Parties that Hasbro [and Klamer] had
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`Case 1:15-cv-00419-WES-PAS Document 158 Filed 11/13/17 Page 3 of 6 PageID #: 4770
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`only recently deduced through [their] own diligence.” Hasbro Opposition at 9. Indeed, when
`Hasbro or Klamer had access to Grace Chambers or Leonard Israel is irrelevant. Rather, the
`timeliness of Defendants’ supplementations should be evaluated using the date it became
`apparent that the Markham Parties intended to claim the work of Chambers and Israel as
`Markham’s own as the starting point. By this metric, Hasbro and Klamer’s supplementations are
`timely. See Hasbro Opposition at 5–10.
`For his part, Klamer also sought to obtain the Markham Parties’ basis for their claim that
`Markham authored any portion of the Game. See, e.g., Klamer’s Interrogatory No. 1 (“State all
`facts that support YOUR contention that BILL MARKHAM is the sole author, creator, designer,
`developer, inventor, author and owner of the GAME and all of its intellectual property, as
`alleged in Paragraph 80(a) of the COMPLAINT. “); No. 5 (“State all facts that support YOUR
`contention that LORRAINE MARKHAM, together with any one of the Markham statutory heirs,
`has the authority to terminate all copyright grants or transfers related to the GAME, including
`both the October 20, 1959 Assignment Agreement and the July 9, 1989 Settlement Agreement,
`as alleged in Paragraph 80(c) of the COMPLAINT.”). Just like Hasbro, Klamer also received
`responses that failed to disclose a basis for the claim that Markham authored the Game, but
`instead unhelpfully referred to various pleading and documents. See Declaration of Erica Van
`Loon (“Van Loon Decl.”), Ex. A at 8–9, 12–13 (the Markham Parties’ Initial Answers and
`Objections to Klamer’s First Set of Interrogatories); Ex. B at 9–10, 15 (Supplemental Answers).
`Moreover, both the Hasbro Motion and the Supplemental Motion utterly ignore
`Klamer’s Answer and Counterclaims to the Third Amended Complaint (“Klamer’s Answer”)
`(ECF No. 136), which were filed on October 27, 2017—timely filed two weeks after the
`Markham Parties’ filed their Third Amended Complaint. In paragraph 53 of the Counterclaims,
`Mr. Klamer specifically sought a declaration that (in the alternative), “the Game was a work
`made for hire by Bill Markham’s employees, and Counterclaim Defendants therefore had no
`statutory right to termination.” Even further, the Markham Parties ignored the representations of
`Klamer’s counsel during the court conference that took place on November 2, 2017, wherein
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`counsel discussed the presence of that declaration request, and that Klamer added it in response
`to the testimony elicited by the Markham Parties at the depositions of Grace Chambers and
`Leonard Israel. See Van Loon Decl. at ¶ 4. Despite having been thereby placed on notice, both
`the original Hasbro Motion (filed later that same day) and the Supplemental Motion (filed four
`days later) ignored this argument entirely.
`Klamer’s disclosure in his supplemental interrogatory responses that he intends to argue
`that the Markham Parties cannot terminate because the Game may have been a work made for
`hire by Markham’s employees—and, for that matter, in his Answer and Counterclaims to the
`Third Amended Complaint—was timely and does not prejudice the Markham Parties in any
`fashion. For the reasons set forth above, as well as the reasons elucidated by Hasbro in the
`Hasbro Opposition, Klamer respectfully requests that the Court deny the Markham Parties’
`Supplemental Motion.
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`1414942.3
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`Respectfully submitted,
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`REUBEN KLAMER
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`By his attorneys,
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` /s/ Eric E. Renner
`Eric Renner (#7481)
`RENNER LAW, LLC
`50 South Main Street
`Suite 202
`Providence, RI 02903
`Phone: 401-404-5251
`Fax: 401-404-5285
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`Erica J. Van Loon (admitted pro hac vice)
`Patricia L. Glaser (admitted pro hac vice)
`Brittany Elias (admitted pro hac vice)
`GLASER WEIL FINK HOWARD
` AVCHEN & SHAPIRO LLP
`10250 Constellation Blvd., 19th Flr.
`Los Angeles, California 90067
`Phone: 310-553-3000
`Fax: 310-556-2920
`evanloon@glaserweil.com
`pglaser@glaserweil.com
`belias@glaserweil.com
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`Attorneys for Defendant and Counterclaim
`Plaintiff Reuben Klamer
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`DATED: November 13, 2017
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`1414942.3
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`CERTIFICATE OF SERVICE
`I hereby certify that on the 13th day of November, 2017, this document, filed through the
`ECF system, will be sent electronically to the registered participants as identified on the Notice
`of Electronic Filing (NEF), and paper copies will be sent to those indicated as non-registered
`participants.
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`
` /s/ Eric E. Renner
`ERIC E. RENNER
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`1414942.3
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