Case 3:07-cv-00934-BR Document 180 Filed 01/27/2010 Page 1 of 11

Kenneth R. Davis, II, OSB No. 971132

davisk@lanepowell.com
William T. Patton, OSB No. 973646
pattonw@lanepowell.com
Parna A. Mehrbani, OSB No. 053235
mehrbanip@lanepowell.com
LANE POWELL PC
601 SW Second Avenue, Suite 2100
Portland, Oregon 97204-3158
Telephone: 503.778.2100
Facsimile: 503.778.2200

Timothy Reynolds, Admitted Pro Hac Vice

HOLME ROBERTS & OWEN LLP

Attorneys for Defendants Atlantic Recording Corporation, Priority Records LLC,

Capitol Records, Inc., UMG Recordings, Inc. BMG Music, Recording Industry Association
of America, and Settlement Support Center, LLC

Jeffrey S. Jacobson, Admitted Pro Hac Vice

DEBEVOISE & PLIMPTON LLP

Attorneys for Defendant Recording Industry Association of America

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

TANYA ANDERSEN, Civil No. 3:07-CV-934-BR

Plaintiff,
Defendants’
v. MEMORANDUM IN SUPPORT OF
MOTION FOR LEAVE TO FILE
ATLANTIC RECORDING MOTION FOR SUMMARY JUDGMENT
CORPORATION, et al.,

Defendants.

LANE POWELL PC
601 SW SECOND AVENUE, SUITE 2100
708816.0001/831019.2 PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200
 Case 3:07-cv-00934-BR Document 180 Filed 01/27/2010 Page 2 of 11

Defendants Atlantic Recording Corporation, Priority Records, LLC, Capitol Records,

LLC (formerly Capitol Records, Inc.), UMG Recordings, Inc., Arista Music (formerly BMG

Music), and Recording Industry Association of America (collectively the “Record Companies”)

respectfully seek leave to move for summary judgment under Rule 56(c) on Plaintiff Tanya

Andersen’s surviving claims of abuse of legal process, negligence, and civil conspiracy. As

demonstrated below, the record demonstrates no genuine issue as to any material fact and the

Record Companies are entitled to judgment as a matter of law.

I. INTRODUCTION
From inception, Ms. Andersen has sought to challenge the Record Companies’ legitimate

efforts to protect their copyrights and deter infringement. By collecting evidence of infringement

and filing lawsuits, the Record Companies sought to reduce peer-to-peer (“P2P”) file sharing of

their copyrighted music. The Record Companies originally sued Ms. Andersen as part of that

legitimate and purposeful program. Her claims against the Record Companies challenged both

their pre-litigation activities in gathering and filing suit and their litigation conduct. The Court’s

Noerr-Pennington ruling, holding that the Record Companies had probable cause to sue

Ms. Andersen for copyright infringement, significantly narrowed the case to claims regarding the

Record Companies’ litigation conduct. These remaining claims, for abuse of process and

negligence under Oregon law, were such an afterthought that Ms. Andersen sought no

information about them in two years of discovery. The Record Companies respectfully request

leave to seek summary judgment on these remaining clams. Leaving aside her unsupportable

hyperbole, the undisputed evidence shows that the Record Companies are entitled to judgment as

a matter of law.

Ms. Andersen bases her surviving claims on the allegation that the Record Companies

continued to pursue their case against her after supposedly learning that the “real” infringer was

someone else. The record, however, belies that assertion. Even at the time the Record

Companies dismissed their case voluntarily, the Record Companies had significant evidence that

PAGE 1 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO

FILE MOTION FOR SUMMARY JUDGMENT
LANE POWELL PC
601 SW SECOND AVENUE, SUITE 2100
708816.0001/831019.2 PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200
 Case 3:07-cv-00934-BR Document 180 Filed 01/27/2010 Page 3 of 11

Ms. Andersen’s Internet address, 4.401.209.23, had been used for infringement. They had no

evidence that anyone except Ms. Andersen was responsible for the infringement.

Ms. Andersen’s Internet Service Provider, Verizon, confirmed three separate times that

Ms. Andersen was responsible for the Internet address through which the infringement occurred.

Moreover, Ms. Andersen undisputedly had a version of the KaZaA file-sharing software

installed on her computer.

Ms. Andersen repeatedly claims that the “real” infringer was a Washington resident who

used the screen name “Gotenkito” on the social networking site MySpace. Ms. Andersen,
however, has no evidence to support her theory and cannot explain why Verizon repeatedly

confirmed that the infringement came from Ms. Andersen’s Internet address. The evidence of

infringement that the Record Companies meticulously gathered pointed only to Ms. Andersen,

not to anyone else.

Ms. Andersen also charges the Record Companies with “discovery abuse.” Oregon does

not recognize such a cause of action based on use of regular discovery processes but, even if it

did, the record shows the Record Companies only pursued limited and court-authorized

discovery. They examined the hard drive of Ms. Andersen’s computer, which the discovery

rules authorize and which she herself urged them to do. They also propounded tailored written

discovery and took depositions of people who Ms. Andersen indicated had relevant information.

(See Initial Disclosures and Interrog. Resp., Ex. A to Mehrbani Decl.)

Ms. Andersen’s particular complaint is that the Record Companies took a short,

telephonic deposition of her daughter, Kylee. Ms. Andersen’s own Rule 26(a)(1) disclosures,

however, identified Kylee as a person with relevant information whom Ms. Andersen might call

as a witness. Ms. Andersen objected to the deposition, but the Court ordered that the deposition

proceed subject to certain limitations with which the Record Companies complied. No cases in

Oregon or elsewhere hold it tortious for a party with Court authorization to take the deposition of

a witness its adversary had identified as possessing relevant information.

PAGE 2 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO

FILE MOTION FOR SUMMARY JUDGMENT
LANE POWELL PC
601 SW SECOND AVENUE, SUITE 2100
708816.0001/831019.2 PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200
 Case 3:07-cv-00934-BR Document 180 Filed 01/27/2010 Page 4 of 11

These facts are not and cannot be disputed. None of them remotely show that the Record

Companies “perverted” a legal procedure to accomplish an “ulterior purpose.” None of them

show that the Record Companies owed Ms. Andersen a duty or caused her harm that is

cognizable under Oregon negligence law. For these reasons, discussed in more detail below, the

Record Companies seek leave to file a motion for summary judgment on her remaining claims.

II. ARGUMENT
A. The Record Companies Should Be Granted Leave To File For Summary Judgment
With Respect To The Remaining Claims.
Summary judgment avoids unnecessary trials when there is no dispute as to the facts.
Zweig v. Hearst Corp., 521 F.2d 1129, 1136 (9th Cir. 1975). In furtherance of that goal, district

courts have discretion to entertain successive motions for summary judgment. Mason v.

University & Cmty. College Sys., 265 Fed. Appx. 585, 587-88 (9th Cir. 2007) (unpublished)

(citing Knox v. Southwest Airlines, 124 F.3d 1103, 1105-06 (9th Cir. 1997)).

Here, the Court made clear at the outset of the case that it wanted to address the parties’

claims and defenses efficiently, including by splitting them up if necessary. (Tr. of Feb. 13,

2008 Hr’g at 64:13-17, Ex. B to Mehrbani Decl.) The Court’s prior scheduling orders expressly

contemplated the Record Companies’ moving for summary judgment on the merits after

resolution of the Noerr-Pennington issue. Indeed, after the Record Companies filed their Noerr-

Pennington motion, the Court set a schedule pursuant to which the Record Companies could file
a second motion addressed to the merits of Ms. Andersen’s claims after the close of discovery.

(See Sched. Order of June 23, 2009, Doc. No. 136.) At the parties’ joint request, the Court

subsequently continued the deadline pending resolution of the Noerr-Pennington issue. (See

Doc. No. 158.) Thus, there is no procedural bar to granting the Record Companies leave to

pursue summary judgment; to the contrary, the Court contemplated this step as part of its

planned case management.

PAGE 3 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO

FILE MOTION FOR SUMMARY JUDGMENT
LANE POWELL PC
601 SW SECOND AVENUE, SUITE 2100
708816.0001/831019.2 PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200
 Case 3:07-cv-00934-BR Document 180 Filed 01/27/2010 Page 5 of 11

B. The Record Companies Are Entitled To Judgment As A Matter Of Law On

Ms. Andersen’s Claim Of Abuse Of Process.
Under Oregon law, “abuse of process” is “the perversion of legal procedure to

accomplish an ulterior purpose when the procedure is commenced in proper form and with

probable cause.” Kelly v. McBarron, 482 P.2d 187, 190 (Or. 1971). It “involves the use of the

process as a club by which to extort something unrelated to the process from the other party.”

Clausen v. Carstens, 730 P.2d 604, 608 (Or. App. 1986). In addition to proving some improper,

ulterior purpose, a plaintiff also must prove both “a willful act in the use of the process not

proper in the regular conduct of the proceeding,” and “an actual arrest or seizure of person or
property.” Acro-Tech, Inc. v. Robert Jackson Family Trust, 2001 U.S. Dist. LEXIS 14445,

at *22-23 (D. Or. Sept. 6, 2001). Ms. Andersen can put forth no facts, beyond unsupported

accusations, to establish any of these essential elements.

First, no evidence exists that the Record Companies had an ulterior purpose in bringing

their lawsuit against Ms. Andersen. Ms. Andersen alleges that the Record Companies’ ulterior

purpose was to “intimidate” her and the public in order to maintain “monopolistic control over

the world’s market for the distribution of sound recordings.” (Compl. ¶ 8.18.) Apart from the

lack of any evidentiary support, this allegation is, at best, an of acknowledgment that the Record

Companies owned valuable copyrights and had the right to defend them against infringement.

See F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233 (1952) (copyright
actions serve to compel “reparation for injury” and “to discourage wrongful conduct”). The

Record Companies sued Ms. Andersen to protect their copyrights and deter infringement.

In rejecting claims virtually identical to Ms. Andersen’s, another court recently held that

it cannot be an abuse of process “to enforce precisely the rights created by Congress.” Capitol

Records, Inc. v. Alaujan, No. 1:03-cv-11661 (D. Mass. June 15, 2009) (minute order) (attached

as Ex. C to Mehrbani Decl.); see also Interscope Records v. Duty, 2006 U.S. Dist. LEXIS 20214,

at *13-14 (D. Ariz. April 14, 2006) (“[I]t is not an abuse of the legal process if the Recording

Companies’ goal in bringing these actions is to scare would-be infringers into complying with

PAGE 4 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO

FILE MOTION FOR SUMMARY JUDGMENT
LANE POWELL PC
601 SW SECOND AVENUE, SUITE 2100
708816.0001/831019.2 PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200
 Case 3:07-cv-00934-BR Document 180 Filed 01/27/2010 Page 6 of 11

federal law.”); Atlantic Recording Corp. v. Heslep, 2007 U.S. Dist. LEXIS 35824, at *16 (N.D.

Tex. May 16, 2007) (“[O]ur government has chosen to leave the enforcement of copyrights, for

the most part, in the hands of the copyright holder [and the] right to come to court to protect

one’s property rights has been recognized in this country since its birth.”).

Ms. Andersen also contends that the Record Companies tried to coerce her into “making

an undeserved payment of money and/or abandoning her legal rights.” (Compl. ¶ 8.19.) This

hyperbolic allegation characterizes efforts to settle as attempted extortion. As an initial matter,

Ms. Andersen never settled the case and, as such, she cannot be heard to complain of extortion or
coercion that failed to accomplish its alleged objective. Beyond that, the law encourages parties

to settle their differences as opposed to litigating them. The law also provides that “maintaining

a lawsuit for the [alleged] ulterior purpose of continuing litigation as a lever to obtain a

settlement is not an improper motive and would not demonstrate any ulterior purpose other than

resolution or settlement of the suit which is an acceptable use of process.” Hampton v. Nustar

Mgmt. Fin. Group, 2007 U.S. Dist. LEXIS 2072, at *8 (D. Nev. Jan. 8, 2007) (applying Nevada

law); see also Reis v. Walker, 491 F.3d 868, 870 (8th Cir. 2007) (filing a lawsuit “or adding a

claim to gain leverage for a settlement, or in the expectation of a settlement, is not an abuse of

that process”) (applying Iowa law); Grabinski v. National Union Fire Ins. Co., 2005 U.S. Dist.

LEXIS 21946, at *15 (D. Ariz. Sept. 23, 2005) (the purpose of inducing settlement, in and of

itself, cannot be an abuse of process because “the purpose of settlement is includable in the goals

of proper process”) (applying Arizona law), rev’d on other grounds, 265 Fed. Appx. 633 (9th

Cir. 2008); Bayer AG v. Sony Elecs., 229 F. Supp. 2d 332, 368-369 (D. Del. 2002) (pursuit of

settlement is a valid use of process).

Second, Ms. Andersen cannot show, and does not even allege, that the Record

Companies engaged in “a willful act in the use of the process not proper in the regular conduct of

the proceeding.” Acro-Tech, 2001 U.S. Dist. LEXIS 14445, at *22. The Record Companies

deposed a number of witnesses, all of whom Ms. Andersen identified as having relevant

PAGE 5 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO

FILE MOTION FOR SUMMARY JUDGMENT
LANE POWELL PC
601 SW SECOND AVENUE, SUITE 2100
708816.0001/831019.2 PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200
 Case 3:07-cv-00934-BR Document 180 Filed 01/27/2010 Page 7 of 11

information, including her daughter. (See Ex. A to Mehrbani Decl..) This action is entirely

consistent with the regular course of litigation. Ms. Andersen’s allegation that the Record

Companies tried to contact Kylee directly is not true, has no factual support in the record, and, in

any event, has nothing to do with the use of any process.1 (Compl. ¶ 8.24.)

Likewise, Ms. Andersen’s complaint that the Record Companies should have pursued the

person she contends was the “real” infringer — a Washington resident who used the “Gotenkito”

user name on MySpace — has no support in the record. Ms. Andersen pins her entire theory on

the similarity of this person’s user name on MySpace to the KaZaA user name that MediaSentry
detected distributing copyrighted music on KaZaA. But that theory has no objective proof. The

relevant evidence in the record is Verizon’s three separate confirmations that the Internet address

in question belonged to Ms. Andersen.

Third, Ms. Andersen does not and cannot allege that she suffered an arrest or seizure of

property which under Oregon law, by itself, requires dismissal of her abuse of process claim.

See Arco-Tech, Inc., 2001 U.S. Dist. LEXIS 14445, *22-23; Roberts v. Jefferson Cty, 1999 U.S.

Dist. LEXIS 20913, *17 (D. Or. Oct. 5, 1999); Lee v. Mitchell, 953 P.2d 414, 427 (Or. App.

1998); Reynolds v. Givens, 695 P.2d 946, 949 (Or. App. 1985); Brood v. Davis, 601 P.2d 487,

491 (Or. App. 1979).

Fourth, the law does not permit abuse of process claims relating only to the maintenance

of a lawsuit after it has been filed. On the contrary, it is well established that the “mere * * *

maintenance of a lawsuit — even for an improper purpose — is not a proper basis for an abuse

of process action.” Lunsford v. American Guar. & Liab. Ins. Co., 18 F.3d 653, 655 (9th Cir.

1994) (internal quotations omitted). Specifically, and as a matter of law, even if Ms. Andersen

could prove “bad intentions” by the Record Companies, which she cannot, “there is no liability

1
Ms. Andersen’s allegation that “phone calls were made” to Kylee’s school (Compl. ¶ 8.25)
should be ignored because Ms. Andersen does not attribute the calls to the Record Companies or
to anyone acting on their behalf. Neither the Record Companies nor anyone acting on their
behalf made such calls and Ms. Andersen does not allege otherwise. These alleged calls,
moreover, also have nothing to do with the use of any judicial process.

PAGE 6 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO

FILE MOTION FOR SUMMARY JUDGMENT
LANE POWELL PC
601 SW SECOND AVENUE, SUITE 2100
708816.0001/831019.2 PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200
 Case 3:07-cv-00934-BR Document 180 Filed 01/27/2010 Page 8 of 11

where the defendant [has] done nothing more than carry out the process to its authorized

conclusion.” See Larsen v. Credit Bureau, 568 P.2d 657, 658 (Or. 1977).

Finally, Noerr-Pennington immunity extends to the maintenance of a lawsuit, not only its

initiation. Ms. Andersen cannot prove that, at any point in time, the Record Companies’ belief

that she committed copyright infringement was either unreasonable or unsupported by probable

cause. Therefore, she cannot maintain her remaining abuse of process and negligence claims.

See IGEN International Inc. v. Roche, 335 F.3d 303, 310, 312 (4th Cir. 2003); Krasnyi Oktyabr,

Inc. v. Trilini Imps., 578 F. Supp. 2d 455, 475 (E.D.N.Y. 2008); Matushita Elecs. Corp. v. Loral
Corp., 974 F. Supp. 345, 357 (S.D.N.Y. 1997).
C. The Record Companies Are Entitled To Judgment As A Matter Of Law On
Ms. Andersen’s Claim Of Negligence.
1. Most of Ms. Andersen’s negligence theories do not survive the Court’s Noerr-

Pennington ruling. Ms. Andersen’s Fourth Amended Complaint asserts four negligence

theories: (1) Negligence Per Se/Vicarious Liability of RIAA and Record Companies; (2) Direct

Negligence of RIAA and Record Companies – Heightened Duty; (3) Direct Negligence of RIAA

and Record Companies – General Duty; and (4) Direct Negligence of Settlement Support Center

– General Duty. (Compl. at ¶¶ 33-36.) Three of these theories have been dismissed because

they focus on conduct already determined by the Court to be insulated by Noerr-Pennington.

(Doc. No. 173 at 24.)

Her first theory seeks to impose vicarious liability on the Record Companies for the

allegedly negligent per se activity of MediaSentry in conducting its investigation. (Compl.

¶ 8.34.) This claim relates exclusively to conduct that led the Record Companies to file a

Complaint against Ms. Andersen—which the Court found to be immunized by Noerr-

Pennington. (Doc. No. 173 at 24.)

Similarly, her second negligence theory relates to MediaSentry’s alleged “criminal and

flawed private investigation scheme.” (Compl. ¶¶ 8.37-8.38.) The Court, however, rejected this

assertion; and therefore, it cannot be the basis of a negligence claim. (Doc. No. 176 at 4.)

PAGE 7 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO

FILE MOTION FOR SUMMARY JUDGMENT
LANE POWELL PC
601 SW SECOND AVENUE, SUITE 2100
708816.0001/831019.2 PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200
 Case 3:07-cv-00934-BR Document 180 Filed 01/27/2010 Page 9 of 11

Ms. Andersen’s fourth negligence theory relates to the allegedly “false and misleading”

communications between the Settlement Support Center (“SSC”) and Ms. Andersen. (Compl.

¶ 8.45.) The Court must discard this theory because SSC had no involvement in the litigation

against Ms. Andersen and, as such, their conduct is no longer at issue in the case.

Accordingly, only Ms. Andersen’s third negligence theory, alleging that the Record

Companies owed her a “general duty,” survived the Court’s Noerr-Pennington ruling. That

claim, however, fails on its merits. Ms. Andersen supports this third theory on two allegations:

(1) the Record Companies were negligent in “prosecuting baseless sham litigation against
Plaintiff,” and (2) the Record Companies were negligent in failing to “properly investigate the

true identity of ‘Gotenkito’ after his true identity was known to them.” (Compl. ¶¶ 8.42(f) and

(g).) Aside from having no evidentiary support, these allegations fail to support a claim for

negligence under Oregon law.

2. Ms. Andersen cannot establish foreseeable harm to any legally protected

interest. In Oregon, negligence requires proof that , inter alia, the defendant’s conduct caused a

foreseeable risk of harm to an interest of a kind that the law protects against negligent invasion.

Solberg v. Johnson, 760 P.2d 867, 870 (Or. 1988); see also Fazzolari v. Portland Sch. Dist.

No. 1J, 734 P.2d 1326, 1335 (Or. 1987) ([“T]he issue of liability for harm actually resulting from

defendant’s conduct properly depends on whether that conduct unreasonably created a

foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.”).

In her complaint, Ms. Andersen alleges that the Record Companies owed her a “general

duty,” which she defined as a duty to act “reasonably, responsibly and legally” to avoid causing

foreseeable harm. (Compl. ¶ 8.41.) If Ms. Andersen contends that this “general duty” imposes

some obligation different from the standard articulated in Solberg, Oregon law does not support

it. Moreover, the Record Companies satisfied any obligation they had as litigants protecting

PAGE 8 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO

FILE MOTION FOR SUMMARY JUDGMENT
LANE POWELL PC
601 SW SECOND AVENUE, SUITE 2100
708816.0001/831019.2 PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200
 Case 3:07-cv-00934-BR Document 180 Filed 01/27/2010 Page 10 of 11

their copyrights. They acted reasonably in investigating their case against Ms. Andersen and her

defenses.2 Therefore, any alleged harm was not foreseeable.

Moreover, Ms. Andersen cannot show harm to any legally protected interest. In

particular, Ms. Andersen’s alleged emotional harm is not compensable under Oregon law.

Oregon adheres to the common law “impact rule,” which bars negligence actions for emotional

injuries unless the plaintiff also sustained a physical impact or injury due to the defendant’s

alleged conduct. Hammond v. Central Lane Commc’n Ctr., 816 P.2d 593, 597 (Or. 1991)

(affirming summary judgment against the plaintiff who produced no evidence of any physical
impact or injury on grounds that she had not shown harm to any “‘legally protected interest’”)

(quoting Fazzolari, 734 P.2d at 1335); see also Lowe v. Philip Morris USA, Inc., 142 P.3d 1079,

1087 (Or. Ct. App. 2006) (noting the “default position” in Oregon “that present, physical harm is

the sine qua non of negligence liability.”). Here, Ms. Andersen alleges only emotional damages.

(Compl. ¶¶ 7.25, 7.26, 8.43.) She does not and could not allege any physical impact or injury

from either the Record Companies’ pursuit of their lawsuit against her or any alleged failure to

investigate. Absent physical impact or injury, Ms. Andersen cannot show harm to any legally

protected interest and her negligence claim fails. In limited situations, Oregon law may permit

recovery for emotional harm when the defendant’s conduct infringes some “legal right of the

plaintiff independent of an ordinary tort claim for negligence.” Hammond, 816 P.2d at 596; see

also Nearing v. Weaver, 670 P.2d 137, 140, 140 n.4 (Or. 1983) (listing legally protected interests

such as “interference with use and enjoyment of land” and “conversion of personal property”).

Ms. Andersen has not and could not allege that the Record Companies violated any legal right

independent of her tort claim for negligence. For this reason, too, she cannot sustain her

negligence claim for emotional harm.

2
In this regard, the Record Companies asked Verizon to check its records regarding the owner of
the relevant Internet address. They confirmed that it was assigned to Ms. Andersen. Further, the
Record Companies also contacted the individual in Washington State who denied any
involvement and denied having ever visited Ms. Andersen’s residence.

PAGE 9 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO

FILE MOTION FOR SUMMARY JUDGMENT
LANE POWELL PC
601 SW SECOND AVENUE, SUITE 2100
708816.0001/831019.2 PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200
 Case 3:07-cv-00934-BR Document 180 Filed 01/27/2010 Page 11 of 11

Any effort by Ms. Andersen to seek recovery for economic damages would also be

barred. Under Oregon law, a plaintiff cannot sustain a claim for economic harm absent a special

duty of care. Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 83 P.3d 322, 328 (Or. 2004).

Even where it is reasonably foreseeable that a plaintiff would suffer economic loss as a

consequence of a defendant’s actions, “that fact is not sufficient to state a negligence claim”

without demonstrating a special duty. Loosli v. City of Salem, 193 P.3d 623, 625 (Or. 2007).

The Oregon Supreme Court has described relationships that may carry a special duty as those in

which a party who owes a duty of care t act “at least in part * * * to further the economic
interests of the ‘client,’ the person owed the duty of care.” Conway v. Pacific Univ., 924 P.2d

818, 824 (Or. 1995). As noted above, Ms. Andersen claims only that the Record Companies

owed her a general duty of care, not a special duty. And, quite apart from the allegations,

Plaintiff has no evidence to support the notion that the Record Companies could ever have owed

her, a litigation adversary, any duty at all, much less a “special duty.” 3

III. CONCLUSION

For the foregoing reasons, the Record Companies respectfully seek leave to file a motion

for summary judgment under Rule 56(c) as to Ms. Andersen’s remaining claims for relief.

DATED: January 27, 2010

LANE POWELL PC

By s/ Parna A. Mehrbani
Kenneth R. Davis, II, OSB No. 971132
William T. Patton, OSB No. 973646
Parna A. Mehrbani, OSB No. 053235
(503) 778-2100

3
Ms. Andersen also alleges a claim of civil conspiracy, but a “claim for civil conspiracy is
entirely dependent on underlying” substantive claims; where “the underlying claims fail, [the]
civil conspiracy claim must also fail.” Oregon Laborers-Employers Health & Welfare Trust
Fund v. Phillip Morris, 185 F.3d 957, 969 (9th Cir. 1999). Because each of Ms. Andersen’s
substantive claims fail, so too must her civil conspiracy claim.

PAGE 10 - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO

FILE MOTION FOR SUMMARY JUDGMENT
LANE POWELL PC
601 SW SECOND AVENUE, SUITE 2100
708816.0001/831019.2 PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200