Case 2:23-cv-00470-KKE Document 40 Filed 05/03/24 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`Plaintiff(s),
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`v.
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`ADRIAN BOOT,
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`RHAPSODY INTERNATIONAL INC.,
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`Defendant(s).
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`CASE NO. C23-0470-KKE
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`ORDER DENYING CROSS-MOTIONS
`FOR SUMMARY JUDGMENT
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`This matter comes before the Court on the parties’ cross-motions for summary judgment.
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`Dkt. Nos. 17, 18. The Court has considered the parties’ briefing1 and heard the oral argument of
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`counsel. For the following reasons, the Court denies both motions.
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`I.
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`BACKGROUND
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`Plaintiff Adrian Boot is a British music photographer who, in 1979, photographed
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`Jamaican musician Lincoln Barrington “Sugar” Minott. Dkt. No. 17-1 ¶ 9. In 2005, Boot licensed
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`a photograph of Sugar Minott (“the photograph”) to Soul Jazz Records for use as album artwork,
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`and two other photographs for use inside the album booklet. Id. ¶ 11; Dkt. No. 20-4 at 11. Boot
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`registered the photograph with the United States Copyright Office in June 2018. Dkt. No. 17-2.
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`In March 2022, Boot observed the photograph (alone, not with the album cover graphics)
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`on the website of Napster, a music streaming service operated by Defendant Rhapsody
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`1 This order refers to the parties’ briefing using the CM/ECF page numbers.
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`ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT - 1
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`Case 2:23-cv-00470-KKE Document 40 Filed 05/03/24 Page 2 of 12
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`International, Inc. See Dkt. No. 17-1 ¶ 16 (referencing Dkt. No. 1-2). Boot then filed this lawsuit
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`alleging copyright infringement. See Dkt. No. 1. The parties conducted discovery and have cross-
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`moved for summary judgment. See Dkt. Nos. 14, 17, 18. Those motions are now ripe for
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`resolution.
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`II.
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`ANALYSIS
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`Legal Standard
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`Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate “if the
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`A.
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`movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
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`judgment as a matter of law.” A principal purpose of summary judgment “is to isolate and dispose
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`of factually unsupported claims[,]” so that “factually insufficient claims or defenses [can] be
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`isolated and prevented from going to trial with the attendant unwarranted consumption of public
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`and private resources.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 327 (1986). In resolving
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`a motion for summary judgment, the court considers “the threshold inquiry of determining whether
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`there is the need for a trial—whether, in other words, there are any genuine factual issues that
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`properly can be resolved only by a finder of fact because they may reasonably be resolved in favor
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`of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “[T]here is no issue
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`for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a
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`verdict for that party.” Id. at 249.
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`B.
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`There Are Factual Disputes as to Whether Rhapsody’s Use of the Photograph Was
`Authorized by an Implied or Express License, and Therefore Neither Party is Entitled
`to Summary Judgment on the Infringement Claim.
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`Boot’s complaint alleges that Rhapsody infringed his copyright in the photograph by
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`displaying it on the Napster website. Dkt. No. 1 ¶¶ 43–52. A copyright claim has two elements:
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`“(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are
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`original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991).
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`ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT - 2
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`Case 2:23-cv-00470-KKE Document 40 Filed 05/03/24 Page 3 of 12
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`Rhapsody does not dispute that Boot satisfies those elements, but argues that its display of
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`the photograph was licensed, which is a complete defense to an infringement claim. See Dkt. No.
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`18 at 11 (citing Great Minds v. Office Depot, Inc., 945 F.3d 1106, 1110 (9th Cir. 2019) (“[A claim
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`for copyright infringement] fails if the challenged use of the work falls within the scope of a valid
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`license.”)). Thus, the Court must consider whether Rhapsody’s use of the photograph was licensed
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`in order to determine whether either party is entitled to summary judgment on the claim for
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`copyright infringement.
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`As noted supra, Boot licensed the photograph to Soul Jazz Records for use of the image as
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`album artwork. See Dkt. No. 20-4 at 11. According to Rhapsody, that license to Soul Jazz Records
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`included an implied, non-exclusive license to distribute the photograph along with the album, and
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`Soul Jazz Records conferred that right to content aggregator Play It Again Sam (“PIAS”), which
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`then conferred that right to Rhapsody via written contract. Dkt. No. 18 at 13–15. Rhapsody also
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`argues that the license it holds to the Sugar Minott at Studio One album, via its contract with PIAS,
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`grants it license to display the photograph. See id. at 15–16. Under either of these theories,
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`Rhapsody argues that it is entitled to summary judgment on the infringement claim.
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`In opposition, Boot contends that Rhapsody’s implied-license argument is improperly
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`raised because “no such defense was asserted in [its] Answer.” Id. at 17 (citing Dkt. No. 7).
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`Rhapsody did, however, assert an affirmative defense of license: “Plaintiff’s claims are barred in
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`whole or part because any alleged use of the image by Rhapsody was licensed by or through a
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`third party.” Dkt. No. 7 at 6. This is sufficient to notify Boot of Rhapsody’s defense on an implied-
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`license theory. See, e.g., McElroy v. Courtney Ajinça Events LLC, 512 F. Supp. 3d 1328, 1336
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`(N.D. Ga. 2021) (“Plaintiffs’ argument that the absence of the word ‘implied’ in Defendants’
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`affirmative defenses waives Defendants’ right to assert the existence of an implied license is
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`unpersuasive.”). Boot also contends that Rhapsody does not have an express license to display the
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`Case 2:23-cv-00470-KKE Document 40 Filed 05/03/24 Page 4 of 12
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`photograph because Rhapsody has not sufficiently shown a chain of licenses that starts with Boot
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`and ends with Rhapsody. Dkt. No. 24 at 9–10. The Court will therefore turn to consider whether
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`Rhapsody’s use of the photograph was authorized by either an implied or an express license that
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`would defeat Boot’s infringement claim.
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`1. There is a Question of Fact as to Whether Boot’s License to Soul Jazz Records Included
`an Implied, Non-Exclusive License to Display the Photograph When Distributing the
`Sugar Minott at Studio One Album.
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`Rhapsody argues that when Boot licensed the photograph to Soul Jazz Records for use as
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`album art, the nature of the transaction objectively indicated an implied understanding that the
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`photograph would be distributed with the album. Dkt. No. 31 at 9. According to Rhapsody, “when
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`a person licenses a photograph for use ‘on the cover artwork’ for an album, the only objective
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`conclusion is the photograph would be distributed with the album.” Id. at 10.
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`Rhapsody cites no evidence or authority that supports that argument and has failed to
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`establish that this is the only objective conclusion as a matter of law. It is not clear why Boot
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`should have assumed that when distributing the album, Soul Jazz Records would not only
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`distribute the album cover, but also the photograph used to create the album cover. Rhapsody
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`emphasizes that the court should look to the totality of the transaction between the creator and the
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`licensee to determine whether their course of conduct creates an implied license. See Dkt. No. 31
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`at 9–10 (citing inter alia Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 558–59 (9th Cir. 1990)).
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`However, Rhapsody does not identify anything about the transaction between Boot and Soul Jazz
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`Records that would support its interpretation of the parties’ intent.
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`In Effects, a movie producer hired Effects Associates to create certain special effects for a
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`movie entitled “The Stuff,” which was eventually distributed by a third party. Id. at 555. Although
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`the film footage containing the special effects was used without obtaining a written license, the
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`Ninth Circuit found that Effects had granted an implied license to the movie producer because the
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`ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT - 4
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`footage was created at the producer’s request with the intent that it be used in the film and with no
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`warning that use of the footage would constitute infringement. Id. at 558–59. The court
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`determined that Effects had
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`created a work at defendant’s request and handed it over, intending that defendant
`copy and distribute it. To hold that Effects did not at the same time convey a license
`to use the footage in “The Stuff” would mean that plaintiff’s contribution to the
`film was “of minimal value,” a conclusion that can’t be squared with the fact that
`defendant paid plaintiff almost $56,000 for this footage.
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`Id. Relying on Effects, in Asset Marketing Systems, Inc. v. Gagnon, the Ninth Circuit identified
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`three factors relevant to determining the parties’ intent to grant a license:
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`(1) whether the parties were engaged in a short-term discrete transaction as opposed
`to an ongoing relationship; (2) whether the creator utilized written contracts …
`providing that copyrighted materials could only be used with the creator’s future
`involvement or express permission; and (3) whether the creator’s conduct during
`the creation or delivery of the copyrighted material indicated that use of the material
`without the creator’s involvement or consent was permissible.
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`542 F.3d 748, 756 (9th Cir. 2008) (quoting John G. Danielson, Inc. v. Winchester-Conant Props.,
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`Inc., 322 F.3d 26, 41 (1st Cir. 2003)). The Asset Marketing court found that an implied license is
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`granted where “(1) a person (the licensee) requests the creation of a work, (2) the creator (the
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`licensor) makes that particular work and delivers it to the licensee who requested it, and (3) the
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`licensor intends that the licensee-requestor copy and distribute his work.” Id. at 754–55. But
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`where, as here, the work at issue was not commissioned by the licensee, “district courts examine
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`whether ‘totality of the parties’ conduct indicates an intent to grant’ a license to the work.” Evox
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`Prods. LLC v. Yahoo, Inc., No.:2:20-cv-02907-MEMF-JEMx, 2023 WL 5506894, at *4 (C.D. Cal.
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`July 28, 2023) (quoting Montwillo v. Tull, 632 F. Supp. 2d 917, 924 (N.D. Cal. 2008)).
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`Here, there is scant evidence of parties’ intent when Boot licensed the photograph to Soul
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`Jazz Records for use as album artwork: the only documentary evidence of the license is an invoice
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`instructing Soul Jazz Records to pay licensing fees to Boot for the right to reproduce three images
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`ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT - 5
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`Case 2:23-cv-00470-KKE Document 40 Filed 05/03/24 Page 6 of 12
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`on the cover artwork and inside the booklet for the album, with attribution to Boot. See Dkt. No.
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`20-4 at 11. Boot’s declaration and Soul Jazz Records’ declaration2 describe their general licensing
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`practices, but do not describe anything specific about the parties’ conduct during this licensing
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`transaction in particular. See Dkt. No. 17-1, Dkt. No. 26.
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`Nonetheless, according to Rhapsody, the Court should find that Boot granted an implied
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`license to Soul Jazz Records permitting Rhapsody’s “downstream use” of the photograph when
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`distributing the album for three reasons: (1) it is objectively reasonable to assume that images for
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`use as artwork on an album cover and booklet will be distributed with the album, because “the
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`purpose of an album cover is to accompany an album, wherever it may go” (Dkt. No. 22 at 9); (2)
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`Soul Jazz Records released Sugar Minott at Studio One in 2005, using the photograph as album
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`art, and Boot has not objected to use of the photograph as album art at any time since then; and (3)
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`Boot’s written agreement with Soul Jazz Records did not include any express limitation on the
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`right of Soul Jazz Records to distribute the photograph as album art. Id. at 8–10.
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`Boot disagrees, arguing that it is clear that no implied license was granted to Soul Jazz
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`Records (and therefore could not have been granted to Rhapsody via PIAS). Dkt. No. 24 at 18–
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`19. Specifically, Boot contends that because Soul Jazz Records did not request the creation of the
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`photograph, and instead Boot authored the photograph decades before Soul Jazz Records sought
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`to license it, “[t]hat ends the analysis and the argument as to an implied license.” Dkt. No. 24 at
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`19. Boot cites no authority indicating that this one factor—whether the licensee requested that the
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`2 Rhapsody suggests that the Court should refrain from considering this declaration (signed by Stuart Baker, owner of
`Soul Jazz Records) on the grounds that Boot untimely disclosed Baker as a witness. Dkt. No. 31 at 12 (referencing
`Dkt. No. 20-1 (Boot’s initial disclosures)). The Court notes that Rhapsody listed Baker as a witness in its own second
`amended disclosures on February 22, 2024 (Dkt. No. 32-1), but did not request any relief related to Baker’s untimely
`disclosure by Boot until filing the reply brief to its motion for summary judgment on March 22, 2024. See Dkt. No.
`31 at 8. This timeline undermines a suggestion of harm resulting from Baker’s untimely disclosure.
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`Moreover, Rhapsody’s request for the Court to disregard the Baker declaration is not supported with citation
`to legal authority, nor does it address whether any other sanction short of exclusion could minimize any harm or
`prejudice. See Dkt. No. 31 at 12. The request is therefore denied at this time, without prejudice to Rhapsody’s filing
`a motion or motion in limine to address this issue more fully, if necessary.
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`ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT - 6
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`Case 2:23-cv-00470-KKE Document 40 Filed 05/03/24 Page 7 of 12
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`licensor create the work licensed—is dispositive, however. Neither Effects nor Asset Marketing
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`nor any other case cited by the parties provides an exhaustive list of the factors that a court must
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`consider, and the Court finds that it should look to the totality of the circumstances surrounding
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`the transaction to determine whether an implied license was granted.
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`As explained herein, however, the Court’s ability to look to the totality of the circumstances
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`of the transaction is hampered by the scant evidence presented on that issue. Rhapsody has not
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`explained why the Court should conclude, as a matter of law, that Boot intended to grant an implied
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`license to Soul Jazz Records that would permit it to distribute the photograph in its original form,
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`rather than the photograph as part of the Sugar Minott at Studio One album cover. The Court
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`agrees with Rhapsody that the purpose of an album cover is to accompany the album, but that does
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`not necessarily suggest that Boot and Soul Jazz Records intended that the photograph in its original
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`form would also accompany the album. Boot’s declaration squarely denies that he intended any
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`such use by a subsequent third party. See Dkt. 17-1 ¶¶ 11–12. However, Rhapsody submitted a
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`declaration3 from Paul Clifford, a vice president of Rhapsody, indicating that PIAS obtained inter
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`alia the photograph pursuant to a license “contain[ing] legal assurances and protections from the
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`licensors, that the licensors did in fact have the right to provide said content to Napster for
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`Napster’s contemplated use.” Dkt. No. 19 ¶ 9. That Rhapsody received the photograph from PIAS
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`suggests that PIAS received it from Soul Jazz Records, but the Court cannot determine on this
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`record whether that transfer was consistent with the license Boot granted to Soul Jazz Records.
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`3 Boot moved to strike the Clifford declaration and its attachments as inadmissible hearsay (Dkt. No. 24 at 10–15),
`but the Court denies this request. As argued by Rhapsody (Dkt. No. 31 at 6–8), because the contents of the Clifford
`declaration and its attachments are capable of being admitted at trial, they are properly before the Court. See, e.g.,
`Hughes v. United States, 953 F.2d 531, 543 (9th Cir. 1992) (“Rule 56 permits the use of affidavits in evaluating a
`motion for summary judgment. While the facts underlying the affidavit must be of a type that would be admissible as
`evidence … the affidavit itself does not have to be in a form that would be admissible at trial.”).
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`ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT - 7
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`Because the question of fact as to whether Rhapsody’s use was within the scope of an
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`implied license granted to Soul Jazz Records cannot be answered on the record before the Court,
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`this issue must be presented to the jury. See, e.g., Atkins v. Fischer, 331 F.3d 988, 992–93 (D.C.
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`Cir. 2003) (finding that where there is a genuine issue of fact as to whether an implied license can
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`be inferred from the parties’ conduct, summary judgment is inappropriate).
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`2. There is a Question of Fact as to Whether Rhapsody Received an Express License to
`Display the Photograph via its Contract with PIAS.
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`Rhapsody argues that, in addition to the implied license discussed supra, it also holds an
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`express written license to display the photograph via its contract with PIAS. Dkt. No. 18 at 15–
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`16. This contract gives Rhapsody a nonexclusive license to “distribute, post, transmit, download,
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`store, reproduce, display and exhibit each Track’s corresponding Artwork,” where “Track” is
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`defined to mean “each individual sound recording” subject to the contract and “Artwork” is defined
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`to mean “any materials provided by [PIAS] to [Rhapsody], including, but not limited to, album
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`artwork, photographs, visual presentations, images, and likenesses of [PIAS’s] artists.” Dkt. No.
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`19-4 at 2, 4, 5. The contract also allows Rhapsody to make “formatting changes to the Artwork,
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`as may be necessary to transmit and reproduce the Artwork in connection with the operation of
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`[Napster].” Id. at 6.
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`Rhapsody contends that because Boot licensed the photograph to Soul Jazz Records (Dkt.
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`No. 20-4), and Soul Jazz Records distributed the photograph as album art with Sugar Minott at
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`Studio One in accordance with an apparently unwritten agreement with PIAS (Dkt. Nos. 19-3, 19-
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`5), and Rhapsody obtained rights to Sugar Minott at Studio One from PIAS (Dkt. No. 19-4), “[t]his
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`chain of licenses4 … is precisely what all parties, including Mr. Boot, intended when he charged
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`Soul Jazz Records £552.25 for a license to use the photograph.” Dkt. No. 22 at 11.
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`Whether a written agreement between Soul Jazz Records and PIAS exists or not, no
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`evidence in the record illuminates the terms of that agreement, and as a result the Court has no
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`basis to find as a matter of law that PIAS in fact had the rights that Rhapsody purports to have
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`received from PIAS. Boot submitted a declaration signed by Baker, the owner of Soul Jazz
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`Records, who states that it is Soul Jazz Records’ standard practice to “provide the cover artwork[,]”
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`but not to provide a sublicense to use the raw images contained in the cover artwork. See Dkt. No.
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`26 ¶¶ 7–8. Baker’s declaration does not specifically address any arrangement made with PIAS in
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`particular. Id. To the extent that Baker describes Soul Jazz Records’ arrangement with PIAS, his
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`declaration conflicts with the Clifford declaration discussed supra, wherein Napster’s vice
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`president states that PIAS “did in fact have the right to provide [content including the photograph]
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`to Napster for Napster’s contemplated use.” Dkt. No. 19 ¶ 9.
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`In sum, because the Court finds that on this record, there are questions of fact as to whether
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`Rhapsody’s use was licensed either expressly or impliedly, and that issue is dispositive to both
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`cross-motions for summary judgment, both motions must be denied and this case must proceed to
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`trial.
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`C.
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`Even if Rhapsody’s Use of the Photograph Was Unauthorized, Boot Has Not Shown
`That He Is Entitled to Statutory Damages.
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`As a remedy for Rhapsody’s alleged infringement, Boot requests damages under Section
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`504 of the Copyright Act, which allows a plaintiff to request an award of actual damages or
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`statutory damages, defined as “a sum of not less than $750 or more than $30,000 [per work
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`4 At oral argument, Rhapsody’s counsel retreated from the “chain of licenses” metaphor to suggest that PIAS has an
`agency relationship with Soul Jazz Records, and therefore there would be no written agreement between them that
`would identify the rights conferred.
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`ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT - 9
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`Case 2:23-cv-00470-KKE Document 40 Filed 05/03/24 Page 10 of 12
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`infringed] as the court considers just.” 17 U.S.C. §§ 504(b), (c)(1). If a defendant’s infringement
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`is shown to be willful, the court has discretion to increase the statutory damages award up to
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`$150,000. 17 U.S.C. § 504(c)(2). Here, both parties also request an award of attorney’s fees and
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`reimbursement of litigation costs under the Copyright Act, as the prevailing party. See 17 U.S.C.
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`§ 505.
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`Rhapsody argues that Boot is not entitled to statutory damages or attorney’s fees due to the
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`operation of the statutory bar found in 17 U.S.C. § 412. That section bars an award of statutory
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`damages or attorney’s fees if the infringement alleged “commenced” after the work was first
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`published and “before the effective date of its registration, unless such registration is made within
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`three months after the first publication of the work.” 17 U.S.C. § 412(2). Rhapsody has submitted
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`evidence that Boot first published the photograph in 20025 when it was licensed to Fuel 2000
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`Records for use as album artwork and publicity, and that Boot did not register his copyright in the
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`photograph until June 2018. See Dkt. No. 20-4 at 2, 10. Rhapsody contends that because Sugar
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`Minott at Studio One was released in June 2008 and Rhapsody may have displayed the photograph
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`at that time (Dkt. No. 19 ¶¶ 13–16, Dkt. No. 19-3), or at least as early as 2013 (Dkt. Nos. 30, 30-
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`1), the Court cannot award Boot statutory damages, attorney’s fees, or costs.
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`Boot disputes whether Rhapsody first displayed the photograph in June 2008, relying on a
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`search of the Internet Archive Wayback Machine, indicating that the photograph was first
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`displayed on Napster’s service in 2020. See Dkt. No. 27-1. Boot’s evidence establishes that the
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`photograph was displayed in 2020, but not that it was first displayed in 2020. Id. Rhapsody
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`submitted Internet Archive Wayback Machine evidence in support of its reply brief, indicating that
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`5 Boot emphasizes that his copyright registration states that the photograph was first published in 1990. Dkt. No. 24
`at 21. The Court need not determine whether the photograph was first published in 1990 or 2002 because either year
`is long before the Sugar Minott at Studio One album was created and many years before Boot registered his copyright.
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`ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT - 10
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`Case 2:23-cv-00470-KKE Document 40 Filed 05/03/24 Page 11 of 12
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`it (as Rhapsody, not as Napster) displayed the photograph in 2013. See Dkt. No. 30-1. The
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`discrepancy between Boot’s evidence and Rhapsody’s evidence as to the date appears to be based
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`to some degree on the fact that Rhapsody re-branded its music streaming service from Rhapsody
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`to Napster at some point (as counsel discussed at oral argument), and thus each party searched
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`different websites for evidence of the photograph’s display.6 For this reason, even if the Court
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`takes judicial notice of the websites offered by each party (Dkt. Nos. 27-1, 30-1), this evidence is
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`insufficient by itself to establish when Rhapsody’s alleged infringement commenced and/or
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`whether it was continuous. See Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 700–01
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`(9th Cir. 2008) (“Every court to consider the issue has held that ‘infringement “commences” for
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`the purposes of § 412 when the first act in a series of acts constituting continuing infringement
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`occurs.’” (quoting Johnson v. Jones, 149 F.3d 494, 506 (6th Cir. 1998))).
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`Because the record before the Court is not conclusive as to when Rhapsody’s alleged
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`infringement commenced or whether the infringement was continuous, and the answer to that
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`question is dispositive of the issue of whether Boot can be awarded statutory damages if he
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`succeeds on his infringement claim at trial, this factual question must also be resolved by the fact-
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`finder at trial.
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`III. CONCLUSION
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`For these reasons, the Court DENIES Plaintiff’s cross-motion for summary judgment (Dkt.
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`No. 17) and DENIES Defendant’s cross-motion for summary judgment (Dkt. No. 18). The Court
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`6 At oral argument, Boot’s counsel contended that due to the re-brand of Rhapsody to Napster, the Court should find
`that Rhapsody’s infringement was not “continuous” and thus the statutory bar does not apply. As explained herein,
`the record on this issue is scant and the Court finds that neither party has provided conclusive evidence showing that
`it is entitled to summary judgment on this issue as a matter of law.
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`To the extent that Rhapsody submitted additional evidence explaining the operation of the Internet Archive
`Wayback Machine after the summary judgment briefing was concluded (Dkt. No. 36), a notice of supplemental
`authority is not the proper vehicle for submitting new evidence in support of a ripe motion. See Local Rules W.D.
`Wash. LCR 7(n) (permitting a party to provide notice of “relevant authority issued after the date the party’s last brief
`was filed”). The Court therefore grants Boot’s unopposed motion to strike.
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`ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT - 11
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`Case 2:23-cv-00470-KKE Document 40 Filed 05/03/24 Page 12 of 12
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`GRANTS Plaintiff’s unopposed motion to strike (Dkt. No. 37).
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`Because neither party has prevailed on their motion for summary judgment, the Court
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`denies each party’s request for an award of attorney’s fees and costs at this time.
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`The parties filed a stipulated motion to continue the trial date to allow the Court additional
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`time to resolve their cross-motions for summary judgment, but the entry of this order moots the
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`need for a continuance. The Court therefore DENIES the stipulated motion (Dkt. No. 38), but in
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`light of the fast-approaching trial date, the Court nonetheless VACATES the existing pretrial
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`deadlines (Dkt. No. 12) and modifies the unexpired pretrial deadlines as follows:
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`(1) Motions in limine must be filed by May 13, 2024;
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`(2) Agreed pretrial order must be filed by May 24, 2024;
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`(3) Proposed voir dire questions, proposed jury instructions, and trial briefs must be filed
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`by May 31, 2024;
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`(4) Pretrial conference is set for 10 a.m. on June 4, 2024; and
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`(5) Jury trial is set to begin at 9:30 a.m. on June 10, 2024.
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`Dated this 3rd day of May, 2024.
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`A
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`Kymberly K. Evanson
`United States District Judge
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`ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT - 12
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