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

Case 1:08-cv-02437-TCB Document 85-2 Filed 09/08/09 of 13

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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


sugarland summary judgment statement

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