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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GREG HAYES,

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For the Northern District of California

United States District Court

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No. C-11-1702 EMC

Plaintiff,
v.

ORDER RE PLAINTIFF’S FILING OF
SEPTEMBER 21, 2011

MUSA DAJANI, et al.,
(Docket No. 34)

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Defendants.

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___________________________________/
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On September 21, 2011, this Court issued an order granting Plaintiff Greg Hayes’s request to

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stay the litigation because of his incarceration. See Docket No. 30 (order). On the same day, Mr.

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Hayes submitted a brief in response to the Court’s order of September 16, 2011, in which it

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conditionally denied Mr. Hayes’s motion for a preliminary injunction. See Docket No. 23 (order).

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Although the case has now been stayed, the Court shall still address the merits of Mr. Hayes’s brief

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as it relates to his prior motion for a preliminary injunction.

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In his brief, Mr. Hayes asserts that he is “bring[ing] the exact same motion [for a preliminary

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injunction] as before” and “[u]sing the exact same legal arguments.” Mot. at 11 (emphasis in

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original). Mr. Hayes, however, is not entitled to do that. The Court has already issued its order on

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his motion for a preliminary injunction. Mr. Hayes, however, may ask the Court to reconsider its

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decision, see Civ. L.R. 7-9, and, accordingly, the Court shall construe his brief as such a motion.

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Having reviewed Mr. Hayes’s brief and the accompanying submission, the Court hereby DENIES

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the request for relief.

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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

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must specifically show, e.g., that “[a] manifest failure by the Court to consider material facts or

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dispositive legal arguments which were presented to the Court before such interlocuctory order.”

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Civ. L.R. 7-9(b)(3). Mr. Hayes has failed to meet this standard. In fact, the Court notes that Mr.

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Hayes failed to file any reply to the opposition brief filed by Defendants Musa and Khaled Dajani.

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Although the Court appreciates that Mr. Hayes was arrested on or about August 18, 2011, see

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Docket No. 22 (letter from Mr. Hayes, stating he was arrested on that date), he still have could filed

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a reply brief of some kind from the county jail (even if untimely) as evidenced by the letters which

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For the Northern District of California

reconsideration. See Civ. L.R. 7-9(a) (providing that “[n]o party may notice a motion for

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United States District Court

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the Court has received from Mr. Hayes while he has been incarcerated.

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Furthermore, even if the Court were to grant leave to file the motion for reconsideration, Mr.

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Hayes’s motion to reconsider still fails on the merits. First, Mr. Hayes’s argument of substantial

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similarity based on the Dajanis’ use of solid enclosing planter walls is doubtful. See Benay v.

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Warner Bros. Entm’t, Inc., 607 F.3d 620, 624 (9th Cir. 2010) (noting that a plaintiff must establish

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substantial similarity under both an extrinsic test and an intrinsic test; the extrinsic test is an

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objective comparison of specific expressive elements while the intrinsic test if a subjective

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comparison focusing on whether the ordinary, reasonable audience would find the works

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substantially similar in the total concept and feel). Thus, it is questionable whether Mr. Hayes has

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adequately shown a likelihood of success on the merits or even serious questions going to the merits,

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a necessary prerequisite to obtain preliminary injunctive relief. See Alliance for the Wild Rockies v.

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Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2007) (discussing likelihood of success on the merits).

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Second, even if there were substantial similarity, preliminary injunctive relief may be issued

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only where, in the absence of such relief, there is a likelihood of irreparable injury. See id. (noting

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that, to obtain a preliminary injunction, a plaintiff must establish that irreparable harm is likely, and

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not just possible). To the extent Mr. Hayes contends (as he did in his original motion for a

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preliminary injunction) that irreparable harm can be presumed upon a showing of a reasonable

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likelihood of success, the Ninth Circuit has concluded in a recently issued opinion that that

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presumption is no longer applicable. More specifically, the court held that “[its] long standing rule

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that ‘[a] showing of reasonable likelihood of success on the merits in a copyright infringement claim

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raises a presumption of irreparable harm’ ‘is clearly irreconcilable with the reasoning’ of the

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[Supreme] Court’s decision in eBay and therefore been ‘effectively overruled.’” Perfect 10, Inc. v.

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Google, No. 10-56316, 2011 U.S. App. LEXIS 15913, at *12 (9th Cir. Aug. 3, 2011) (explaining

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that the presumption is inconsistent with the principles of equity set forth in eBay). Because the

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presumption of irreparable harm no longer exists, even if Mr. Hayes showed a likelihood of success

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on the merits (i.e., based on substantial similarity), he must still show in addition a likelihood of

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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.

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For the Northern District of California

United States District Court

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See Lydo Enters. v. Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984) (stating that “[p]urely monetary

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injuries are not normally considered irreparable”); Los Angeles Memorial Coliseum Comm’n v.

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National Football League, 634 F.2d 1197, 1202 (9th Cir. 1980) (noting that the temporary loss of

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income does not usually constitute irreparable injury).

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Accordingly, Mr. Hayes’s motion for leave to file a motion for reconsideration is denied.

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As a final point, the Court notes that the Dajanis have now filed the declarations required by

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the Court in its order conditionally denying the motion for a preliminary injunction. See Docket

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Nos. 28-29 (declarations). In light of those declarations, the Court reaffirms its denial of Mr.

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Hayes’s motion.

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This order disposes of Docket No. 34.

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IT IS SO ORDERED.

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Dated: September 28, 2011
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_________________________
EDWARD M. CHEN
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GREG HAYES,

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No. C-11-1702 EMC

Plaintiff,
v.

CERTIFICATE OF SERVICE

MUSA DAJANI, et al.,
Defendants.

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For the Northern District of California

United States District Court

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.

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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.

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Greg Hayes
381 Oak Street
San Francisco, CA 94102

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Greg Hayes
SF #554957
CJ5 4B-4
P. O. Box 67
San Bruno, CA 94066

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Dated: September 28, 2011
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Richard W. Wieking, Clerk
By: Betty Lee, Deputy Clerk

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