NY415607.2/2456-00001

H. Rowan Gaither IV

Reema S. Abdelhamid

RICHARDS KIBBE & ORBE LLP

One World Financial Center

New York, New York 10281

Telephone: (212) 530-1800

Facsimile: (212) 530-1801

Michael H. Gottschlich

BARNES & THORNBURG LLP

11 South Meridian Street

Indianapolis, IN 46204

(317) 236-1313

Counsel for Defendant Table Moose Media, LLC

d/b/a/ Indy Menís Magazine

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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GEORGE EDWARD McCAIN, an individual,

Plaintiff,

vs.

RAHAL LETTERMAN RACING, LLC, an Ohio

limited liability company, et al.

Defendants.

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Index No.: 07-CV-5729 (JSR)

REPLY MEMORANDUM

IN SUPPORT OF

MOTION TO TRANSFER CASE

Defendant Table Moose Media, LLC, d/b/a Indy Menís Magazine (ìTMMî) respectfully

submits this reply memorandum in further support of the motion of defendants Rahal Letterman

Racing, LLC, and Bobby Rahal Automotive Group (collectively ìRahalî) for an Order

transferring this copyright infringement action to the United States District Court for the Central

District of California pursuant to 28 U.S.C. Section 1404(a). TMM joined Rahalís motion to

transfer on July 26, 2007.

Case 1:07-cv-05729-JSR Document 45 Filed 08/15/2007 Page 1 of 4
NY415607.2/2456-00001

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TMM joins the arguments advanced by Rahal in their Reply Memorandum of Law Re

Motion to Transfer (ìRahal Reply Mem.î), filed on August 13, 2007. In addition, it is in the

interests of justice to transfer this case and permit TMM, as an alleged ìsecondary infringer,î to

litigate the partiesí dispute in the Central District of California, where Argent Mortgage

Company, LLC, et al. v. Edward McCain, Case No. SACV 06-749 CJC (RNBx) (the ìCalifornia

Proceedingî) is pending, for the simple reason that each of the parties to the alleged ìprimaryî

infringement are amenable to personal jurisdiction in that jurisdiction, and there is considerable

uncertainty as to whether that would be the case in the Southern District of New York.

The relationships between and among the alleged ìprimary infringersîóthe Rahal

entities, Argent Mortgage Company LLC (ìArgentî), and Argentís one-time agent Mark

Borchetta (ìBorchettaî) and his affiliated companies (the ìBorchetta Entitiesî)óand Edward

McCain (ìPlaintiffî) are the subject of contention and will be the focus of discovery.

Nonetheless, it is clear that all are or will be parties to the California Proceeding. For the alleged

ìsecondary infringerî defendants such as TMM, who expect to seek indemnity from one or more

of the alleged ìprimaryî infringers, the only jurisdiction where they are assured complete relief

is the Central District of California. If one or more of the parties involved in the alleged

ìprimaryî infringement are subject to jurisdiction in California but not in New York and the

California Proceeding continues in parallel to this present action, the alleged ìsecondary

infringersî could be prejudiced by inconsistent judgments rendered in the two jurisdictions. In

contrast, there is no risk of inconsistent judgments, incomplete relief, or prejudice to TMM and

the other alleged ìsecondary infringersî if this case is transferred to the Central District of

California, where it would presumably be consolidated with the California Proceeding.

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From the allegations raised in this matter and in the California Proceeding, it appears

unlikely that Borchetta, and possibly Argent, will be subject to jurisdiction in the Southern

District of New York. There is no evidence in the pleadings that Borchetta and the Borchetta

Entities are subject to the jurisdiction of this Court. However, they are defendants in the

California Proceeding, in which it is alleged that Borchetta and the Borchetta Entities have their

principal place of business in Valencia, California. As is apparent from the Amended Complaint

filed in the California Proceeding, submitted in support of Rahalís opening memorandum,

Borchetta is alleged to have been a key player in the negotiations surrounding the use of the

allegedly infringed photographs. (See Affirmation of John W. Patton, Exhibit L (Amended

Complaint at ¶¶ 29-42) (filed July 30, 2007).) To the extent that TMMís alleged infringement is

derivative of any act or omission by Borchetta or the Borchetta Entities, TMM may be

prejudiced if this action were to proceed in the Southern District of New York without their

presence. Furthermore, in its August 13, 2007 reply memorandum, Rahal states in a footnote

that Argent will need to be joined as a party to this lawsuit for complete relief to be obtained.

(Rahal Reply Mem. at 2 n.1). However, Rahalís statement does not indicate whether Argent

would concede personal jurisdiction in this district.

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WHEREFORE, for the reasons stated in the moving and reply papers filed by Rahal and

in TMMís joinder and this reply, defendant Table Moose Media respectfully requests that this

action be transferred to the United States District Court for the Central District of California

pursuant to 28 U.S.C. ß 1404(a).

Dated: New York, New York

August 15, 2007

RICHARDS KIBBE & ORBE LLP

By: /s/ H. Rowan Gaither IV

H. Rowan Gaither IV

Reema S. Abdelhamid

One World Financial Center

New York, New York 10281-2702

(212) 530-1800

Michael H. Gottschlich

BARNES & THORNBURG LLP

11 South Meridian Street

Indianapolis, IN 46204

(317) 236-1313

Counsel for Defendant Table Moose Media, LLC

d/b/a/ Indy Menís Magazine

Case 1:07-cv-05729-JSR Document 45 Filed 08/15/2007 Page 4 of 4