AF Holdings LLC v. Harris

Filing 36

ORDER denying 23 Defendant's Motion for Security; denying 26 Defendant's Motion to Strike ; denying 29 Plaintiff's Motion for Sanctions; denying 30 Defendant's Motion to Stay Discovery. Signed by Judge G Murray Snow on 2/1/13.(TLJ)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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AF Holdings, LLC, a St. Kitts and Nevis
limited liability company,

No. CV-12-02144-PHX-GMS
ORDER

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Plaintiff,

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v.

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David Harris,

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Defendant.

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Pending before the Court are Defendant’s Motion for Security (Doc. 23),

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Defendant’s Motion to Strike (Doc. 26), Plaintiff’s Motion for Sanctions (Doc. 29); and

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Defendant’s Motion to Stay Discovery (Doc. 30). The Court rules on the motions as

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follows.

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Defendant’s Motion for Security of Non-Resident Plaintiff (Doc. 23) is denied.

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While the Local Rules of Civil Procedure do provide in appropriate cases for a non-

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resident of the district to post a security bond to cover costs, the bond does not cover

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security for attorney’s fees. See Smith v. Barrow Neurological Institute of St. Joseph’s

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Hospital and Medical Center, No. CV-10-01632-PHX-FJM (D. Ariz. March 21, 2012).

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What the Defendant is requesting is actually a bond against a potential an award of

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attorney’s fees and as Defendant acknowledges he is not an attorney. He is therefore not

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entitled to security for attorney’s fees which he will not incur. The motion is therefore

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denied.

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Defendant’s Motion to Strike in Reply to Plaintiff’s Response (Doc. 26) is also

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denied. In the motion, Defendant attempts to have this Court make rulings on the truth of

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Plaintiff’s allegations at the pleadings stage. Then assuming the truth of Defendant’s

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responses as opposed to Plaintiff’s allegations, Defendant asks this Court to find that it

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has no subject matter jurisdiction. The fact that Plaintiff obtained an assignment of its

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predecessors’ right as it pertains to Defendant does not mean that Plaintiff cannot bring

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an action for copyright infringement. Therefore, there is no allegation on which, at the

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pleadings stage, this Court can determine that it lacks subject matter jurisdiction. The

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argument can be renewed after appropriate discovery, if in fact there is a basis for such a

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motion. The Motion to Strike (Doc. 26) is denied.

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Defendant’s Motion to Stay Discovery and to Strike Plaintiff’s Case Management

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Report Document 27 (Doc. 30) is also denied. The Court has reviewed all of the

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pleadings and arguments with respect to the reasons why staying and striking the Case

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Management Order should be awarded and finds in Plaintiff’s favor.

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insistence to the contrary, Defendant has no right to compel the attendance of Mr. Duffy

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at the pretrial scheduling conference and a plain reading of the rule so indicates. Further,

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Defendant’s position that Mr. Hansmeier cannot provide evidence is incorrect as a matter

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of law. His assertion that either of these positions justified his ignoring the Court’s Order

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and not conferring with Plaintiff’s counsel about the preparation of the Case Management

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Order after Defendant had previously violated an Order of the Court compelling him to

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do so, justifies neither a stay nor a striking of Plaintiff’s Case Management Report. That

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is why the Court accepted Plaintiff’s Case Management Report and especially in light of

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Defendant’s failure to comply with two previous Orders of the Court, entered the

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schedule requested by Plaintiff in that report. The Court declines now to vary that

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schedule.

Despite his

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For this reason, however, the Court also denies Plaintiff’s Forthwith Motion for

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Sanctions Against Defendant (Doc. 29). Defendant’s decision that he would defy the

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Court’s Orders has incurred its own sanction. His failure to confer with Plaintiff’s
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counsel regarding the preparation of a Case Management Report as directed by the Court,

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has resulted in the Court entering Plaintiff’s proposed Case Management Order and as

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previously indicated, the Court declines to change that Order. Thus, Defendant’s failure

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to comply with the Court’s Order has created its own sanction. It may be true as Plaintiff

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suggests that the Court has given some leeway to Defendant because he is a pro se

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defendant. Nevertheless, Defendant will be strictly held to the schedule and rules as they

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govern discovery set forth in this action for any claims and counterclaims. All parties

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will be required to comply with both legal rules and civility in achieving those deadlines.

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With the parties being forewarned, this Court declines to further impair Defendant’s

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ability to defend himself by imposing economic sanctions at this point. The Motion is

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therefore denied.

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IT IS THEREFORE ORDERED THAT:

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Defendant’s Motion for Security (Doc. 23) is denied.

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2.

Defendant’s Motion to Strike (Doc. 26) is denied.

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3.

Plaintiff’s Motion for Sanctions Against Defendant (doc. 29) is denied.

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4.

Defendant’s Motion to Stay Discovery (Doc. 30) is denied.

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Dated this 1st day of February, 2013.

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