Hayes v. Dajani et al,

Filing 49

ORDER Re 46 47 Plaintiff's Filings of December 1, 2011 and December 14, 2011. Signed by Judge Edward M. Chen on 12/21/2011. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 12/21/2011)

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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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Plaintiff,

For the Northern District of California

United States District Court

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No. C-11-1702 EMC
ORDER RE PLAINTIFF’S FILINGS OF
DECEMBER 1, 2011 AND DECEMBER
14, 2011

v.
MUSA DAJANI, et al.,

(Docket Nos. 46, 47)
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Defendants.
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Plaintiff Greg Hayes has filed two sets of papers with the Court, the first on December 1,

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2011, and the second on December 14, 2011. The Court addresses each filing below. The Court

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also addresses the issue of a stay.

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A.

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December 1 Filing
It is not clear what relief, if any, Mr. Hayes is seeking with the December 1 filing. To the

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extent Mr. Hayes is asking the Court to reconsider its order denying his motion for preliminary

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injunction, the motion is denied.

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The Court shall assume, as Mr. Hayes implicitly suggests, that Defendants failed to serve

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their opposition to the preliminary injunction motion back in August 2011. Assuming such, it is fair

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for the Court to consider any arguments that Mr. Hayes now has, i.e., now that he has received a

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copy of the opposition and had an opportunity to review its contents. Mr. Hayes’s only contention

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seems to be that Defendants used his copyrighted drawing to obtain a permit from the Planning

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Department. Even if true, the fact remains that Defendants “changed the design before building,” as

was ultimately built did not contain the characteristics which Mr. Hayes initially claimed

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demonstrated the originality of his drawing – i.e., curved corners and/or a curved central feature.

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Thus, even if Defendants used Mr. Hayes’s copyrighted drawing to obtain the permit (the alleged

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infringement), there is no basis to stop the construction of and/or tear down the parklet that has now

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been built, which is not based on the copyrighted drawing. To the extent Mr. Hayes argues that the

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parklet that has been built is also infringing because of the use of solid enclosing planter walls, the

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Court has already concluded that that argument of substantial similarity is doubtful. See Docket No.

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35 (Order at 2) (noting that a plaintiff must establish substantial similarity under both an extrinsic

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test and an intrinsic test). Mr. Hayes has not tendered any argument to convince the Court that that

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For the Northern District of California

Mr. Hayes admits in a prior paper filed with the Court. Docket No. 22 (Letter at 5). The parklet that

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United States District Court

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conclusion was erroneous.

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Accordingly, the Court denies the motion to reconsider its denial of the preliminary

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injunction. Although the Court is denying the motion, it shall still order Defendants to file a proof

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of service establishing that they served, back in August 2011, the opposition to the preliminary

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injunction motion. As Mr. Hayes argues, it appears that no proof of service is currently a part of the

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record. Defendants shall file the proof of service within three days of the date of this order.

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B.

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December 14 Filing
In the December 14 filing, Mr. Hayes asks for “a list of all documents in the case record at

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this time” as well as copies of various documents that are a part of the case file. Docket No. 47

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(Req. at 1). The Clerk of the Court has already sent a copy of the docket sheet to Mr. Hayes. To the

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extent Mr. Hayes wants copies of documents that make up the case file, the request is denied. As

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the Court has previously noted, Mr. Hayes in forma pauperis status entitled him to a waiver of the

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filing fee only. See Docket No. 23 (Order at 3). To the extent Mr. Hayes is now offering to pay for

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copies, he must identify by docket number the documents that he wants copied. Mr. Hayes’s

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description of the documents is not sufficient. Once Mr. Hayes identifies the documents by docket

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number, then the Clerk of the Court can inform Mr. Hayes what the cost of copying those documents

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will be (cost is $0.50 per page).

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Because the Court is not unsympathetic to Mr. Hayes’s circumstances, it shall – as a one-

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time courtesy – provide some of the documents which he appears to want copied. Those documents

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are attached to this order. See Docket No. 1, at 9-10; Docket No. 2, at 5-14; Docket No. 10, at 1-10.

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C.

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Stay
Previously, the Court stayed the proceedings in this case because of Mr. Hayes’s

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incarceration. That stay expired on or about November 21, 2011. A case management conference is

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scheduled in this case for January 6, 2011. Defendants have already submitted a statement for that

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conference, in which they oppose any further stay “on the grounds that the Complaint is without

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merit and Defendants, who operate business establishments in San Francisco, are very concerned

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For the Northern District of California

United States District Court

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about having a federal court case pending against them.” Docket No. 48 (St. at 3).
The Court has serious concerns about not extending the stay in light of the fact that Mr.

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Hayes has now been involuntarily committed to the Napa State Hospital. Moreover, the prejudice

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identified by Defendants is not, at least at this juncture, significant. The case has been pending for

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less than a year. Given these circumstances, the Court shall stay the case until January 6, 2011, i.e.,

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the day of the case management conference. At that point, the Court shall address whether the stay

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should be continued past that date. No later than December 30, 2011, Mr. Hayes shall file and

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serve a statement as to whether he believes a stay should be continued and, if so, the reasons

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why. In the same statement, Mr. Hayes should indicate whether he will be able to participate

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in the case management conference (on January 6, 2011, at 9:00 a.m.) by telephone. If so, he

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shall provide a telephone number where he can be reached on that date and time.

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IT IS SO ORDERED.

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Dated: December 21, 2011

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_________________________
EDWARD M. CHEN
United States District Judge

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