Download - Sugarland Summary Judgment Statement
IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KRISTEN ALISON HALL, ))
Plaintiff, )) CIVIL ACTION
v. ) NO. 1:08-CV-2437-TCB)
JENNIFER NETTLES and )KRISTIAN BUSH, )
)Defendants. )
______________________________ )
DEFENDANTS’ STATEMENT OF MATERIALS FACTS TOWHICHTHERE IS NO GENUINE ISSUE TO BE TRIED
Pursuant to Local Rule 56.1(B), N.D. Ga., and in connection with their
Motion for Summary Judgment, Defendants Jennifer Nettles and Kristian Bush
(collectively “Defendants”) hereby file their Statement of Material Facts to Which
There Is No Genuine Issue to Be Tried and show the Court the following:
1. Plaintiff Kristen Hall (“Plaintiff”) and Defendant Kristian Bush
(“Bush”), along with others, came together as the musical act “Sugarland” (the
“Sugarland Act” or the “Act”) at the beginning of 2002. (Depo Tr. of Kristen Hall
(“Hall Tr.”), attached hereto as Ex. 1, at 41:4–42:3, 50:18–51:4, 283:2-5).
2. Defendant Jennifer Nettles (“Nettles”) joined the Sugarland Act in the
Summer of 2002. (Depo Tr. of Jennifer Nettles (“Nettles Tr.”), attached hereto as
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Ex. 3, at 29:14-17, 42:15-16).
3. At the time Nettles joined the Sugarland Act, it also included Simone
Simonton (“Simonton”) and Brett Hartley (“Hartley”). (Hall Tr. at 64:1-10;;
Nettles Tr. at 101:15-20).
4. The prospect of using the name “Sugarland” first arose when a
potential singer for the Sugarland Act mentioned that she was from Sugar Land,
Texas. (Hall Tr. at 45:11-20, 49:6-10, 51:21-25, 53:17-24;; Depo Tr. of Kristian
Bush (“Bush Tr.”), attached hereto as Ex. 2, at 83:2-11).
5. The name was added to a list of other possibilities and was ultimately
selected by Plaintiff, Bush, and the other members of the Act prior to Nettles’
arrival. (Hall Tr. at 44:3–45:2, 46:21–47:6, 49:15-23, 60:14–61:8;; Nettles Tr. at
46:6-12).
6. The Sugarland Act’s first performance was in August 2002. (Hall Tr.
at 61:20–62:10).
7. Plaintiff and Defendants filed an application with the U.S. Patent &
Trademark Office on September 9, 2002, to be the registrants of a service mark for
the use of the name “Sugarland” for live performances. The SUGARLAND
Service Mark was registered on August 5, 2003. (Depo Ex. 1, attached hereto as
Ex. 6).
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8. On October 5, 2005, Plaintiff and Defendants applied to register a
trademark for the use of the name “Sugarland” for clothing. The SUGARLAND
Trademark was registered on June 12, 2007. (Depo Ex. 2, attached hereto as Ex.
6).
9. The name “Sugarland” was first used for commercial purposes on or
around September 1, 2002. (Depo Exs. 1 & 2).
10. The parties did not discuss registering the Marks in the name of any
business entity amongst themselves or with their attorneys before filing the
applications for the Marks. (Hall Tr. at 89:1–90:4, 91:19–92:2, 92:15-19;; Nettles
Tr. at 79:16-21).
11. The parties did not discuss contributing the Marks to any business
entity. (Hall Tr. at 108:19-24, 109:21–110:12).
12. Prior to September 2003, the Sugarland Act did not have a recording
contract and earned money through live performances and merchandise sales
alone. (Hall Tr. at 192:18-22).
13. The Act was paid after each performance, often in cash, and the
members would divide up the gross revenues for each show, including any
merchandise revenues, after each performance. (Hall Tr. at 65:8-10, 66:19–67:9;;
Nettles Tr. at 106:4-15, 109:3-20).
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14. The members of the Sugarland Act did not have a standing agreement
about how they would share the revenues generated by the Act and instead decided
the splits on a show-by-show basis. (Hall Tr. at 65:1–66:9, 67:18–69:19, 74:22–
75:14, 98:9–99:12, 101:9-23;; Bush Tr. at 130:12-17;; Nettles Tr. at 66:5-15, 67:10-
15).
15. The payment of the Act’s expenses was similarly fluid, and the
members had no agreement as to how expenses would be paid. (Hall Tr. at
126:12-25;; Bush Tr. at 196:24–197:13;; Nettles Tr. at 70:7-23, 76:16-23).
16. Plaintiff and Defendants signed a recording contract with MCA
Nashville (“MCA”) on September 16, 2003. (Depo Ex. 24, attached hereto as Ex.
6).
17. Simonton and Hartley were not signed by MCA and left the Sugarland
Act in the Fall of 2003. (Hall Tr. at 75:20-22).
18. The parties, as the remaining members of the Sugarland Act, stopped
treating it as a side project in or around September 2003 and turned their full focus
towards ensuring the Act’s success. (Hall Tr. at 70:5-24).
19. Plaintiff and Defendants incorporated two Georgia companies (the
“Georgia Corporations”) on or around September 30, 2003. (Hall Tr. at 101:25–
102:22).
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20. Plaintiff and Defendants agreed to be equal shareholders of the
Georgia Corporations. (Hall Tr. at 69:20–70:14, 75:15-18;; Bush Tr. at 15:19-25;;
166:16-23).
21. At or around the same time, Plaintiff and Defendants agreed to split
the profits and losses of the Sugarland Act equally. (Hall Tr. at 69:20–70:14,
75:15-18;; Bush Tr. at 177:25–178:9: Nettles Tr. at 82:17-21).
22. During the period from October 2003 to November 2005, the
Sugarland Act recorded and released an album entitled “Twice the Speed of Life,”
and they toured almost non-stop to promote the Act. (Hall Tr. 139:18-23, 153:3–
154:20).
23. During this time, Plaintiff became increasingly miserable with life as
a member of the Sugarland Act and repeatedly threatened to quit. (Hall Tr. at
154:21–156:21, 159:23–161:23, 170:1-13, 178:5-25;; Bush Tr. at 256:4-12;; Nettles
Tr. at 253:18–254:1, 264:3-21;; Depo Tr. of Gail Gellman (“Gellman Tr.”),
attached hereto as Ex. 4, at 106:24–107:8, 141:21–142:8;; Depo Exs. 10-20).
24. Plaintiff’s unhappiness and threats to quit were taking a toll upon the
parties’ business relationship, and, in April 2004, they hired an occupational
therapist named Jacquie Damgaard (“Damgaard”) to help them work through their
issues. (Hall Tr. at 168:18–169:25;; Bush Tr. at 294:8-18;; Nettles Tr. at 229:1-6,
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231:18–232:11).
25. During a meeting with Damgaard and Defendants on November 26,
2005, Plaintiff told Defendants that she would no longer tour with the Sugarland
Act, effective after its December 19, 2005 performance. (Hall Tr. at 170:1-13,
215:4-9;; Bush Tr. at 311:6-10, 320:25–321:18;; Nettles Tr. at 273:8–274:21;;
277:17-20;; Declaration of Jennifer Nettles (“Nettles Decl.”), attached as Exhibit 8,
¶ 6).
26. Plaintiff told Defendants that she would make herself available for
“one-off” performances or promotional activities, should they decide to request her
assistance. (Hall Tr. at 170:20–171:12, 172:21–173:1;; Nettles Tr. at 273:23–
274:2).
27. The parties discussed the possibility of writing songs together in the
future, but no agreement to do so was reached. (Hall Tr. at 175:13–176:6;; Bush
Tr. at 311:11-20;; Nettles Tr. at 330:4-13).
28. Leaving the November 26, 2005 meeting, Plaintiff had no expectation
that the parties would ever work together again. (Hall Tr. at 172:21–174:24).
29. During a meeting with the Sugarland Act’s manager, Gail Gellman,
on December 6, 2005, Plaintiff told Gellman that she was leaving the Act.
(Gellman Tr. at 184:12–185:5, 186:23–187:9, 197:5–198:3;; Nettles Tr. at 281:4-
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14).
30. Gellman asked Plaintiff during the December 6, 2005 meeting
whether she wanted to inform MCA of her decision or whether she wanted
Gellman to do it for her. Plaintiff told Gellman to handle it. (Gellman Tr. at
185:6-10, 193:24–194:6, 216:24–217:6, 226:3-13;; Bush Tr. at 335:12-20;; Nettles
Tr. at 282:10-23).
31. Plaintiff’s last performance as a member of the Sugarland Act was on
December 19, 2005. (Hall Tr. at 216:17–217:3).
32. The Sugarland Act’s attorney, Gary Gilbert (“Gilbert”), notified MCA
on December 20, 2005, that Plaintiff was no longer performing with the Act (the
“Leaving Member Notice”). (Depo Ex. 22, attached hereto as Ex. 6).
33. Gilbert forwarded a copy of the Leaving Member Notice to Plaintiff
on December 20, 2005. (Depo Ex. 23, attached hereto as Ex. 6).
34. Plaintiff contacted MCA on or around December 16, 2005, to request
that her royalty statements be sent directly to her home address rather than to
Gellman or Gilbert. (Hall Tr. at 209:25–210:17;; Depo Ex. 9, attached hereto as
Ex. 6).
35. Plaintiff has not sung, spoken, conducted, or played an instrument
with the Sugarland Act since December 20, 2005. (Hall Tr. at 283:2-5).
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36. On November 26, 2005, Nettles sent Plaintiff and Bush a PIN
message in which Nettles informed Plaintiff that she and Bush would be making
certain business decisions about the future of the Sugarland Act without her.
(Nettles Decl. ¶ 8).
37. Plaintiff did not respond to Nettles’ email or otherwise indicate a
desire to be a part of those band-related discussions. (Nettles ¶ 10;; Nettles Tr. at
290:11-16).
38. Plaintiff knew that Defendants were planning to discuss the Sugarland
Act’s future business activities with Gellman after the December 6, 2005 meeting,
and Plaintiff did not object. (Nettles ¶ 11;; Bush Tr. at 341:5–342:5;; Nettles Tr. at
289:8-16).
39. The parties never reached an agreement about Plaintiff continuing to
be involved with the Partnership after December 20, 2005, and Plaintiff was unsure
whether she should have expected any such role. (Hall Tr. at 265:5-25;; Nettles Tr.
at 290:11-16).
40. Defendants continued to perform as the Sugarland Act without
Plaintiff after December 20, 2005. (Hall Tr. at 304:9-14).
41. On December 20, 2005, the Partnership was insolvent. (Decl. of
Michael Vaden (“Vaden Decl.”), attached as Exhibit 8, ¶ 13;; Bush Tr. at 353:1-
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354:1).
42. Defendants applied the Partnership’s assets of $15,344 against its
liabilities in the sum of $99,042 in liabilities. (Vaden Decl. ¶ 13;; Depo Tr. of
Michael Vaden (“Vaden Tr.”), attached hereto as Ex. 5, at 87:24–88:6).
43. Defendants divided the responsibility for satisfying the Partnership’s
remaining liabilities between themselves without seeking any contribution from
Plaintiff and paid them off in 2007. (Vaden Decl. ¶ 14;; Vaden Tr. at 132:7-23).
44. Their business manager, Michael Vaden (“Vaden”), later forwarded
the 2005 financial statements and 2005 tax returns to Plaintiff, indicating that for
all practical purposes, the Partnership business had been terminated. (Vaden Decl.
¶ 20;; Bush Tr. at 370:23–371:15).
45. Vaden filed final federal tax returns for the Georgia Corporations on
February 17, 2007. (Vaden Decl. ¶ 21;; Vaden Tr. 78:1-6;; Bush Tr. at 371:10-15).
46. In January 2006, two new companies, Lucky Star, Inc. and Sugar
Cookie, Inc., were incorporated in Tennessee (the “Tennessee Corporations”) to
continue the operations of the Sugarland Act. (Vaden Decl. ¶ 21;; Vaden Tr. at
95:25–96:15;; Bush Tr. at 369:4-12). Nettles is the sole shareholder of both
companies. (Nettles Tr. at 146:17–147:2;; Vaden Tr. at 96:3-6).
47. Since December 20, 2005, Plaintiff has been released from her
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contract with MCA and has never been signed by another record company. (Hall
Tr. at 18:10-23, 283:15–284:10).
48. Plaintiff has not performed live or recorded any music apart from
demos of songs that she has written since December 20, 2005. (Hall Tr. at 13:9-
14, 17:21–18:15, 21:23–22:1).
49. Since December 20, 2005, Plaintiff has attempted to write songs with
other artists. (Hall Tr. at 14:15-19, 21:15-17).
50. Plaintiff has made no attempt to contact Defendants about the
possibility of working together since December 20, 2005. (Hall Tr. at 13:22–
14:19, 130:16-24, 173:24–174:4, 271:20-24;; Nettles Tr. at 292:10-18).
51. Plaintiff has not used the Marks since December 20, 2005. (Hall Tr.
at 92:22–93:11).
Respectfully submitted this 8th day of September, 2009.
ALSTON & BIRD LLP
By: /s/ James C. GrantJames C. GrantGeorgia Bar No. 305410Joann E. JohnstonGeorgia Bar No. 141222One Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424BUS.: (404) 881-7000FAX: (404) 253-7777
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E-mail: [email protected]@alston.com
Attorneys for Defendants Jennifer Nettlesand Kristian Bush
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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KRISTEN ALISON HALL, ))
Plaintiff, )) CIVIL ACTION
v. ) NO. 1:08-CV-2437-TCB)
JENNIFER NETTLES and )KRISTIAN BUSH, )
)Defendants. )
______________________________ )
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing STATEMENT OF MATERIAL
FACTS AS TO WHICH THERE IS NO GENUINE ISSUE TO BE TRIED IN
SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT was
prepared in Times New Roman 14 point font, double-spaced, with a top margin of
not less than 1.5 inches and a left margin of not less than 1 inch.
This 8th day of September, 2009.
By: /s/ James C. GrantJames C. GrantGeorgia Bar No. 305410Attorney for Defendants
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ALSTON & BIRD LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424BUS.: (404) 881-7000FAX: (404) 253-7777
Case 1:08-cv-02437-TCB Document 85-2 Filed 09/08/09 Page 13 of 13