Hayes v. Dajani et al,

Filing 35

ORDER re 34 Response ( Non Motion ) filed by Greg Hayes. Signed by Judge Edward M. Chen on 9/28/11. (bpf, COURT STAFF) (Filed on 9/28/2011)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 GREG HAYES, 9 11 For the Northern District of California United States District Court 10 No. C-11-1702 EMC Plaintiff, v. ORDER RE PLAINTIFF’S FILING OF SEPTEMBER 21, 2011 MUSA DAJANI, et al., (Docket No. 34) 12 Defendants. 13 ___________________________________/ 14 15 On September 21, 2011, this Court issued an order granting Plaintiff Greg Hayes’s request to 16 stay the litigation because of his incarceration. See Docket No. 30 (order). On the same day, Mr. 17 Hayes submitted a brief in response to the Court’s order of September 16, 2011, in which it 18 conditionally denied Mr. Hayes’s motion for a preliminary injunction. See Docket No. 23 (order). 19 Although the case has now been stayed, the Court shall still address the merits of Mr. Hayes’s brief 20 as it relates to his prior motion for a preliminary injunction. 21 In his brief, Mr. Hayes asserts that he is “bring[ing] the exact same motion [for a preliminary 22 injunction] as before” and “[u]sing the exact same legal arguments.” Mot. at 11 (emphasis in 23 original). Mr. Hayes, however, is not entitled to do that. The Court has already issued its order on 24 his motion for a preliminary injunction. Mr. Hayes, however, may ask the Court to reconsider its 25 decision, see Civ. L.R. 7-9, and, accordingly, the Court shall construe his brief as such a motion. 26 Having reviewed Mr. Hayes’s brief and the accompanying submission, the Court hereby DENIES 27 the request for relief. 28 1 As a preliminary matter, the Court notes that a party must obtain leave to file a motion for reconsideration without first obtaining leave of Court to file the motion”). To obtain leave, a party 4 must specifically show, e.g., that “[a] manifest failure by the Court to consider material facts or 5 dispositive legal arguments which were presented to the Court before such interlocuctory order.” 6 Civ. L.R. 7-9(b)(3). Mr. Hayes has failed to meet this standard. In fact, the Court notes that Mr. 7 Hayes failed to file any reply to the opposition brief filed by Defendants Musa and Khaled Dajani. 8 Although the Court appreciates that Mr. Hayes was arrested on or about August 18, 2011, see 9 Docket No. 22 (letter from Mr. Hayes, stating he was arrested on that date), he still have could filed 10 a reply brief of some kind from the county jail (even if untimely) as evidenced by the letters which 11 For the Northern District of California reconsideration. See Civ. L.R. 7-9(a) (providing that “[n]o party may notice a motion for 3 United States District Court 2 the Court has received from Mr. Hayes while he has been incarcerated. 12 Furthermore, even if the Court were to grant leave to file the motion for reconsideration, Mr. 13 Hayes’s motion to reconsider still fails on the merits. First, Mr. Hayes’s argument of substantial 14 similarity based on the Dajanis’ use of solid enclosing planter walls is doubtful. See Benay v. 15 Warner Bros. Entm’t, Inc., 607 F.3d 620, 624 (9th Cir. 2010) (noting that a plaintiff must establish 16 substantial similarity under both an extrinsic test and an intrinsic test; the extrinsic test is an 17 objective comparison of specific expressive elements while the intrinsic test if a subjective 18 comparison focusing on whether the ordinary, reasonable audience would find the works 19 substantially similar in the total concept and feel). Thus, it is questionable whether Mr. Hayes has 20 adequately shown a likelihood of success on the merits or even serious questions going to the merits, 21 a necessary prerequisite to obtain preliminary injunctive relief. See Alliance for the Wild Rockies v. 22 Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2007) (discussing likelihood of success on the merits). 23 Second, even if there were substantial similarity, preliminary injunctive relief may be issued 24 only where, in the absence of such relief, there is a likelihood of irreparable injury. See id. (noting 25 that, to obtain a preliminary injunction, a plaintiff must establish that irreparable harm is likely, and 26 not just possible). To the extent Mr. Hayes contends (as he did in his original motion for a 27 preliminary injunction) that irreparable harm can be presumed upon a showing of a reasonable 28 likelihood of success, the Ninth Circuit has concluded in a recently issued opinion that that 2 1 presumption is no longer applicable. More specifically, the court held that “[its] long standing rule 2 that ‘[a] showing of reasonable likelihood of success on the merits in a copyright infringement claim 3 raises a presumption of irreparable harm’ ‘is clearly irreconcilable with the reasoning’ of the 4 [Supreme] Court’s decision in eBay and therefore been ‘effectively overruled.’” Perfect 10, Inc. v. 5 Google, No. 10-56316, 2011 U.S. App. LEXIS 15913, at *12 (9th Cir. Aug. 3, 2011) (explaining 6 that the presumption is inconsistent with the principles of equity set forth in eBay). Because the 7 presumption of irreparable harm no longer exists, even if Mr. Hayes showed a likelihood of success 8 on the merits (i.e., based on substantial similarity), he must still show in addition a likelihood of 9 irreparable harm. Ultimately, the only harm Mr. Hayes has identified is a failure to pay him money. Under well-established case law, monetary damages typically do not constitute irreparable harm. 11 For the Northern District of California United States District Court 10 See Lydo Enters. v. Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984) (stating that “[p]urely monetary 12 injuries are not normally considered irreparable”); Los Angeles Memorial Coliseum Comm’n v. 13 National Football League, 634 F.2d 1197, 1202 (9th Cir. 1980) (noting that the temporary loss of 14 income does not usually constitute irreparable injury). 15 Accordingly, Mr. Hayes’s motion for leave to file a motion for reconsideration is denied. 16 As a final point, the Court notes that the Dajanis have now filed the declarations required by 17 the Court in its order conditionally denying the motion for a preliminary injunction. See Docket 18 Nos. 28-29 (declarations). In light of those declarations, the Court reaffirms its denial of Mr. 19 Hayes’s motion. 20 This order disposes of Docket No. 34. 21 22 IT IS SO ORDERED. 23 Dated: September 28, 2011 24 25 _________________________ EDWARD M. CHEN United States District Judge 26 27 28 3 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 GREG HAYES, 5 6 7 8 No. C-11-1702 EMC Plaintiff, v. CERTIFICATE OF SERVICE MUSA DAJANI, et al., Defendants. 9 ___________________________________/ 11 For the Northern District of California United States District Court 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 12 13 14 That on September 28, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 15 16 17 Greg Hayes 381 Oak Street San Francisco, CA 94102 18 19 20 21 Greg Hayes SF #554957 CJ5 4B-4 P. O. Box 67 San Bruno, CA 94066 22 Dated: September 28, 2011 23 Richard W. Wieking, Clerk By: Betty Lee, Deputy Clerk 24 25 26 27 28 4

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