Righthaven LLC v. BuzzFeed, Inc. et al

Filing 22

RESPONSE TO ORDER TO SHOW CAUSE re 21 by Plaintiff Righthaven LLC. (Mangano, Shawn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 1:11-cv-00811-JLK
RIGHTHAVEN LLC, a Nevada limited-liability company,
Plaintiff,
v.
BUZZ FEED, INC., a Delaware corporation; JONAH PERETTI, an individual; and GAVON
LAESSIG, an individual,
Defendants.
RIGHTHAVEN LLC’S RESPONSE TO ORDER TO SHOW CAUSE WITH
CERTIFICATE OF SERVICE

Righthaven LLC (“Righthaven”) hereby responds to the Court’s Order to Show Cause
(the “OSC”) requesting it to show cause why summary judgment should not be entered against it
in this case pursuant to Federal Rule of Civil Procedure 56(f)(3) (“Rule 56(f)(3)”) based on the
decision entered in Righthaven LLC v. Wolf, Case No. 1:11-cv-830 (D. Colo. Sept. 27, 2011)
(Doc. # 49) (“Wolf”), which determined subject matter jurisdiction was lacking over the
company’s copyright infringement complaint in that action. Righthaven asserts that applying the
rationale of the Wolf decision to the case at bar would be clear error. Accordingly, Righthaven
asks the Court to refrain from doing so.
I.

INTRODUCTION

Righthaven maintains that entry of summary judgment is inappropriate in this action
based upon application of Wolf because the Court improperly converted the defendant’s motion
to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”) into a motion
for summary judgment pursuant to Federal Rule of Civil Procedure 56 (“Rule 56”). (Doc. # 49

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at 3-4.) The Court based its conversion from the defendant’s requested dismissal pursuant to
Rule 12(b)(1) to a request under Rule 56 by concluding that its subject matter jurisdiction
analysis was inexorably intertwined with the merits of Righthaven’s copyright infringement
claim. (Doc. # 49 at 3-4.) Under such an analysis, the Court cannot determine a lack of subject
matter jurisdiction, but must assume subject matter jurisdiction and adjudicate the merits of the
claim before it. Alternatively, the Court can perform a substantive analysis of subject matter
jurisdiction under Rule 12(b)(1). Should it determine subject matter jurisdiction is lacking, the
Court must dismiss the action without prejudice. Simply put, the Court cannot find a lack of
subject matter jurisdiction pursuant to Rule 56 so that it results in an adjudication on the merits
simply by maintaining the jurisdictional issues are intertwined with the merits. Unfortunately,
this is exactly what the Court determined in Wolf. (Id. at 14.)
Secondly, Righthaven maintains that even if the Court’s Rule 56 analysis were proper, it
was erroneously determined. In essence, while the Court appears to have examined the
Assignment and the Copyright Alliance Agreement (“CAA”) under a plain meaning analysis,
other portions of its decision indicates the existence of certain ambiguities the relied upon
language. (Id.at 12-13.) When presented with these ambiguities, the Court did not construe then
in the light most favorable to the non-moving party, Righthaven, as is required under a Rule 56
analysis. (Id.) Rather, the Court made its own determination as to what it believed to be the
proper interpretation of these ambiguous terms. (Id.) While the Court would be at liberty employ
this approach under a Rule 12(b)(1) analysis, it is not permitted to do so under a Rule 56
analysis. Accordingly, the Court’s construction of the Assignment in view of the CAA precludes
the decision in Wolf from being properly applied to the case at bar based on Rule 56(f)(3).
The Court’s analysis in Wolf additionally erred in its analysis of the effectiveness of the
Assignment. In short, the Assignment viewed in concert with the allegations of the complaint
and the CAA properly vests the Court with federal question subject matter jurisdiction. Whether
or not these contractual documents sufficiently meet the beneficial or legal ownership required

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under 17 U.S.C. § 501(b) is a merits-based determination – not a jurisdictional determination.
To the extent the Court wishes to examine these materials under a subject matter jurisdiction
analysis, it is empower to do so under Rule 12(b)(1) or under Federal Rule of Civil Procedure
12(h)(3) (“Rule 12(h)(3)”). It cannot make a subject matter determination, which precludes an
adjudication on the merits, under Rule 56. Subject matter jurisdiction must be found to exist in
order to make a merits-based adjudication under Rule 56. Accordingly, since the Court found a
want of subject matter jurisdiction under Rule 56, it employed an improper analysis in Wolf that
should not be extended to this action.
The Court’s finding that subject matter jurisdiction was lacking is also important because
such a determination precludes an award of attorneys’ fees and costs under 17 U.S.C. § 505
(“Section 505”). The Court authorized an award of attorneys’ fees and cots under Section 505 in
Wolf. (Doc. # 49 at 14.) The Court’s award, however, was erroneously based on the premise that
it was authorized to perform a merits-based jurisdictional analysis under Rule 56. This it cannot
do. Rather, as stated above, a subject matter jurisdictional analysis should have been performed
under Rule 12(b)(1) or sua sponte under Rule 12(h)(3). If a determination that subject matter is
lacking is made, the action must be dismissed without prejudice and an adjudication on the
merits has not been obtained. An award of attorneys’ fees and costs is not permitted when
subject matter jurisdiction is absent unless they are issued as a sanction. Moreover, multiple
circuits have determined that an award of attorneys’ fees and costs under Section 505 is
precluded when a case is dismissed for lack of subject matter jurisdiction. Granted, as
acknowledged by the Court during oral argument, this issue has not been decided by the Tenth
Circuit. This uncertainty aside, it remains that a finding that subject matter jurisdiction is absent,
as the Court found in Wolf, cannot support an award of attorneys’ fees and costs under Section
505 or otherwise. The Court’s conclusion that such an award was permissible under Rule 56 is
error that cannot be applied to the case at bar.

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Finally, Righthaven understands the Court may not be inclined to alter its analysis in the
Wolf decision. Granted, the Court was faced with some considerably thorny issues without the
benefit of clear Tenth Circuit authority to assist in its analysis. These circumstances, however,
do not justify a wholesale application of the Wolf decision to the cases in which Righthaven has
submitted a substantive response to the Court’s OSC. Rather, these circumstances genuinely
support staying the actions to which Righthaven has filed an OSC response until the Tenth
Circuit adjudicates the Wolf decision. In most of these actions, there has been little, if any,
substantive litigation beyond an answer and maybe an asserted counterclaim. Adopting the Wolf
decision to these actions would only serve to present numerous individual cases to the Tenth
Circuit in which each defending party’s counsel will want to brief and argue matters that will
already be sufficiently and competently handled by Mr. Wolf’s and amici counsel. While at first
blush consolidation may seem to present a means of handling this situation, it does not. At best,
oral arguments in several cases will heard by the same panel on the same day by the Tenth
Circuit. Consolidation would amount to nothing more than the proverbial attempt at herding
cats, which each defense counsel looking to make a written submission to the Tenth Circuit.
Righthaven trusts, based on this Court’s service by designation at the Tenth Circuit, that it
appreciates the fact that less material is often more beneficial when briefs are submitted on
appeal. Accordingly, Righthaven asks the Court to stay the matters in which is has submitted
substantive OSC responses until the Wolf decision is adjudicated on appeal by the Tenth Circuit.
Alternatively, Righthaven asks the Court to take the approach that it believes is required
by controlling case law – dismiss the other pending actions for lack of subject matter jurisdiction
without prejudice pursuant to Rule 12(b)(1) or Rule 12(h)(3). If the Court wishes to dismiss
pursuant to Rule 56, however, it must first determine that Righthaven has subject matter
jurisdiction to maintain its copyright infringement action. Finding a lack of subject matter
jurisdiction and entering an adjudication on the merits pursuant to Rule 56 is simply
irreconcilable with existing case law.

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II.

ARGUMENT
A.

The Court Should Not Apply The Wolf Decision To The Case At Bar
Because It Improperly Converted The Defendant’s Rule 12(b)(1)
Motion To A Motion For Summary Judgment In Concluding Subject
Matter Jurisdiction Was Absent.

The threshold reason the Wolf decision should not be applied to the case at bar is an
apparent misunderstanding by the Court of its ability to convert a Rule 12(b)(1) dismissal
request into one under Rule 56 “when the resolution of jurisdictional issues is intertwined with
the merits of [a] case . . . .” (Doc. # 49 at 3.) While the Court is correct is recognizing its ability
to convert a Rule 12(b)(1) motion to a motion for summary judgment under Rule 56, it
apparently proceeded under the mistaken belief that it could adjudicate the existence of subject
matter jurisdiction on the merits. (Id.) Such an analysis is clear error. When converting a Rule
12(b)(1) motion to a motion under Rule 56, the Court must assume subject matter jurisdiction
and adjudicate the claim before it on the merits.
Tenth Circuit authority, as well as authority from other circuits, clearly supports
Righthaven’s assertion that a court must assume subject matter jurisdiction before adjudicating
a claim on the merits by converting a Rule 12(b)(1) motion to one under Rule 56. See Tilton v.
Richardson, 6 F.3d 683, 685 (10th Cir. 1993); see also Kerns v. United States, 585 F.3d 187,
193 (4th Cir. 2009); Montez v. Dep’t of Navy, 393 F.3d 147, 159 (5th Cir. 2004); Safe Air For
Everyone v. Meyer, 373 F.3d 1035, 1040 (9th Cir. 2004); Clark v. Tarrant County, 798 F.2d 736
(5th Cir. 1986). Based on Supreme Court authority along with a host of decision from its own
court, the Tenth Circuit has explained:

In this instance, the question of whether the court had subject matter
jurisdiction was intertwined with the merits of the case, and therefore
the district court should have ruled on the merits rather than dismiss for
lack of jurisdiction. The exception to this rule is that subject matter does
not exist if: (1) the alleged claim was clearly immaterial and asserted
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solely for the purpose of obtaining jurisdiction; or (2) the alleged claim
was insubstantial and wholly frivolous. Bell v. Hood, 327 U.S. 678, 68182, 66 S.Ct. 773, 775-76, 90 L.Ed. 939 (1946); see also In re Redmon v.
United States, 934 F.2d 1151, 1155 (10th Cir. 1991); Wheeler v.
Hurdman, 825 F.2d 257, 259 (10th Cir. 1987); Wilhelm v. Continental
Tire Co., 720 F.2d 1173, 1174 (10th Cir. 1983).
Tilton, 6 F.3d at 685 (emphasis added). The Tenth Circuit’s analysis further stated that absent a
federal claim being insubstantial “the district court and this court have jurisdiction and the matter
must and will be addressed on the merits . . . .” Id.
As mentioned, the Tenth Circuit’s decision in Tilton cited the Supreme Court decision in
Bell as support for its conclusion. The Tenth Circuit has been joined by other circuit courts in
cited the Bell decision for exactly the same premise. See Kerns, 585 F.3d at 193; Meyer, 373
F.3d at 1039-40; Clark, 798 F.2d at 741-42. Specifically, the Supreme Court in Bell stated:
Jurisdiction, therefore, is not defeated as respondents seem to contend, by
the possibility that the averments might fail to state a cause of action on
which petitioners could actually recover. For it is well settled that the
failure to state a proper cause of action calls for a judgment on the merits
and not for a dismissal for want of jurisdiction. Whether the complaint
sates a cause of action on which relief could be granted is a question of
law and just as issues of fact it must be decided after and not before the
court has assumed jurisdiction over the controversy. If the court does later
exercise its jurisdiction to determined the allegations in the complaint do
not state a ground for relief, then dismissal of the case would be on the
merits, not for a want of jurisdiction . . . . The previously carved out
exceptions are that a suit may sometimes be dismissed for want of
jurisdiction where the alleged claim under the Constitution or federal
statutes appears to be immaterial and made solely for the purpose of
obtaining jurisdiction or where such a claim is wholly insubstantial or
frivolous.
Bell, 327 U.S. at 681-82 (emphasis added).
As recognized by the Ninth Circuit, “[j]ursidictional dismissals in cases premised on
federal-question jurisdiction are exceptional, and must satisfy the requirements specified in Bell

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v. Hood . . . .” Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 1983).
Likewise, the Fifth Circuit has stated:
Where the challenged to the court’s jurisdiction is also a challenge to the
existence of a federal cause of action, and assuming that the plaintiff’s
federal claim is neither insubstantial, frivolous, nor made solely for the
purpose of obtaining jurisdiction, the district court should find that it has
jurisdiction over the case and deal with the defendant’s challenge as an
attack on the merits.
Clark, 798 F.2d 742 (emphasis added); accord Meyer, 373 F.3d 1039-40.
In Wolf, the Court improperly converted the defendant’s Rule 12(b)(1) dismissal request
to a request for summary judgment under Rule 56 to conclude Righthaven lacked standing to
maintain its copyright infringement action. (Doc. # 49 at 14.) In so doing, the Court used a
procedural mechanism, Rule 56, to perform a merits-based analysis to conclude it lacked subject
matter jurisdiction over the case. As the above authorities mandate, this is clear error. Once the
Court determined that the jurisdictional facts were intertwined with the merits, it was required to
find that subject matter jurisdiction was present in order to perform an analysis under Rule 56.
Alternatively, the Court was empowered to independently evaluate the facts under a Rule
12(b)(1) analysis, which would require a dismissal without prejudice should it determined that
subject matter jurisdiction was absent. See FED. R. CIV. P. 41(b) (involuntary dismissal for lack
of jurisdiction is not an adjudication on the merits); Brereton v. Bountiful City Corp., 434 F.3d
1213, 1216 (10th Cir. 2006) (A dismissal for lack of subject matter jurisdiction must be without
prejudice because “the court, having determined it lacks jurisdiction over the action is incapable
of reaching a disposition on the merits of the underlying claims.”) (emphasis in original);
Exploration Co. v. Tenneco Oil Co., 857 F.2d 1388, 1392 (10th Cir.1988) ("[A] court-ordered
dismissal for lack of subject matter jurisdiction is also not a decision on the merits ....");
Martinez v. Richardson, 472 F.2d 1121, 1126 (10th Cir. 1973) (“It is a fundamental . . . that a
dismissal for lack of jurisdiction is not an adjudication on the merits and therefore dismissal of
the . . . claim must be without prejudice.”); see also Stalley v. Orlando Reg. Healthcare Sys.,

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Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (“A dismissal for lack of subject matter jurisdiction is
not a judgment on the merits and is entered without prejudice.”); Hernandez v. Conriv Realty
Assoc., 182 F.3d 121, 123-24 (2d Cir. 1999) (“Article III deprives federal courts of the power to
dismiss a case with prejudice where federal subject matter jurisdiction does not exist.”).
However, the Court elected not to perform a Rule 12(b)(1) analysis in Wolf. Instead, it
erroneously applied a Rule 56 analysis to find a lack of subject matter jurisdiction, which is
improper. Accordingly, applying the Wolf decision’s flawed analysis to the case at bar would
only serve to multiply the Court’s error and subject this action to likely reversal on appeal to the
Tenth Circuit.
B.

The Court Improperly Construed The Assignment And The SAA
Under A Rule 56 Analysis In Wolf To Conclude Subject Matter
Jurisdiction Was Absent.

As discussed above, the Court should not have converted the defendant’s Rule 12(b)(1)
dismissal request into a motion for summary judgment under Rule 56 to find that subject matter
jurisdiction was absent in the Wolf case. Even assuming that a Rule 56 analysis were proper
under a subject matter jurisdiction analysis, which it is not, the Court erred in doing so. This
error should not be compounded by extending the Wolf decision to the case at bar.
The Court correctly noted that in order to prevail under a Rule 56 analysis, the defendant
was entitled to entry of summary judgment in the absence of any genuine issues of material fact
upon which a rational jury could find in favor of the non-moving party, Righthaven. (Doc. # 49
at 4.) Moreover, the Court correctly observed that “all reasonable inferences” must be drawn “in
favor of the non-moving party.” (Id.) Despite these correct observations, the Court engaged in a
deciphering of ambiguities contained in the language of the CAA and the Assignment. Again,
while such an analysis is authorized under Rule 12(b)(1), the Court declined to perform its
subject matter inquiry under this authority. See Holt v. United States, 46 F.3d 1000, 1003 (10th
Cir. 1995).

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Specifically, the Court analyzed a provision of the CAA that related to the retention of
rights to conclude that the “purported assignment of ‘rights requisite’ is meaningless.” (Doc. # 49
at 13.) The Court’s analysis continued by determining that “[t]he usage of the term ‘exclusive
license’ does not change this analysis.” (Id.) What the Court’s analysis disregarded is the
transactional structure of an assignment of ownership to Righthaven that is subsequently
followed by the licensing back to MediaNews Group (“MNG”) of rights to exploit a specific
copyright protected work. At best, MNG’s retention of an exclusive license under the relied
upon provision of the CAA is ambiguous in view of the overall transactional structure intended
by the parties and reflected in the Assignment along with other provisions of the CAA. While
the Court is certainly authorized to construe unambiguous contractual language in an agreement,
it cannot interject its reconciliation of ambiguous terms against the parties’ intent. Moreover,
under a Rule 56 analysis, the Court is required to draw any inferences in favor of the non-moving
party, which was Righthaven. The analysis employed in the Wolf decision failed in both regards
– it did not seek to give meaning to the parties’ intent and it did not construe the terms in the
light most favorable to the non-moving party. Accordingly, the Court erred in construing the
Assignment and the CAA under the appropriate Rule 56 analysis standards. This error should
not be relied upon to contaminate the case at bar.
C.

The Court Improperly Found The Assignment Failed To Vest The
Court With Subject Matter Jurisdiction In Wolf.

The Court’s analysis in Wolf should likewise not be extended to the case at bar because it
improperly determined the Assignment failed to vest it with subject matter jurisdiction.
As discussed above, because the Court employed a Rule 56 analysis in the Wolf decision,
it was required to first find that it had subject matter jurisdiction over the case. The Court erred
in determining the Assignment failed to vest it with subject matter jurisdiction, which it should
have concluded prior to employing a Rule 56 analysis given its desire to abandon Rule 12(b)(1).
While the Court’s basis for refusing to acknowledge the Assignment vested it with subject matter

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jurisdiction is unclear, the opening sentence of the Wolf decision appears to demonstrate a
fundamental misunderstanding. The opening sentence of the Wolf decision erroneously defines
the issue presented in the case as being “whether a party with the bare right to sue has standing to
institute an action for infringement under federal copyright law . . . .” (Doc. # 49 at 1.) With all
due respect, this was not, and is not, the issue presented in any of the subject matter inquiries
presented to this Court.
Righthaven concedes that a party vested with only a bare right to sue for infringement
lacks standing to sue for copyright infringement. This is precisely the holding by the Ninth
Circuit in Silvers v. Sony Pictures Entm’t, 402 F.3d 881 (9th Cir. 2005) (“Silvers”). Righthaven
is not the plaintiff in Silvers. Rather, Righthaven’s asserts that the issue presented in Wolf, and in
all other actions pending in this District, is whether a party assigned ownership of a copyrighted
work along with the express right to sue for past infringement, among other things, has
standing to sue for an accrued infringement claim.
It is beyond doubt that the Assignment from MNG expressly assigns Righthaven
ownership in and to the copyrighted work along with the express right to sue for, among other
things, accrued, past infringement claims. Thus, the Assignment complies with Silvers because
it conveys ownership of the work along with the express right to sue for past, accrued
infringement claims. The Assignment further complies with the Fifth Circuit’s decision in
Prather v. Neva Paperbacks, Inc., 410 F.2d 698 (5th Cir. 1969). The Assignment further
complies with the Second Circuit’s requirements under ABKCO Music, Inc. v. Harrisongs Music,
Ltd., 944 F.2d 971 (2d Cir. 1991) because the same entity was assigned ownership and the rights
to sue for accrued infringement claims. Id. at 980. While the CAA’s terms may have limited
Righthaven’s ability to sue for current or future claims of infringement based on MNG holding
certain exclusive exploitation rights, this fact does not divest Righthaven of its right to sue for
accrued claims expressly assigned to it along with ownership of the copyright worked. Given
these facts in view of the cited authority, the Court was virtually compelled to conclude that

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Righthaven had standing to maintain the accrued infringement claim at issue in Wolf. This fact
is further supported by the requirement that subject matter be present before the Court was
permitted to undertaken a Rule 56 analysis. Accordingly, the Court erred by failed to find that
Righthaven had standing to maintain the action in Wolf based on the plain language of the
Assignment. Extending the flawed Assignment analysis reached in Wolf to the case at bar would
be completely improper.
D.

The Court Improperly Based The Section 505 Attorneys’ Fees And
Costs Award In Wolf Upon A Lack Of Subject Matter Jurisdiction
Under Rule 56.

Righthaven next maintains the Court improperly granted attorneys’ fees and costs under
Section 505 in Wolf. Simply stated, such an award is improper upon a dismissal for lack of
subject matter jurisdiction.
Once subject matter is found not to exist a court cannot award attorneys’ fees to a party
unless it is a sanction. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir.
2006) (“[T]he court having determined that it lacks subject matter jurisdiction over the action, is
incapable of reaching a disposition on the merits of the underlying claims.”) (emphasis in
original); see also Skaff v. Meridien North America Beverly Hills, LLC, 506 F.3d 832, 837 (9th
Cir. 2007) (stating that “a court that lacks jurisdiction at the outset lacks the authority to award
attorneys’ fees.”); Hudson v. Principi, 260 F.3d 1357, 1363 (Fed. Cir. 2001) (“This court and
others have established that there cannot be an award of attorneys’ fees unless the court has
jurisdiction of the action.”); W.G. v. Senatore, 18 F.3d 60, 64 (2d Cir. 1994) (“Where there is no
subject matter jurisdiction to proceed with the substantive claim, as a matter of law ‘that lack of
jurisdiction bars and award of attorneys fees under [42 U.S.C. §] 1988.”) (internal brackets
omitted); United States v. 87 Skyline Terrace, 26 F.3d 923, 927 n.6 (9th Cir. 1994) (listing cases
holding that “subject matter jurisdiction is a condition precedent to an award of fees under the
EAJA”); Branson v. Nott, 62 F.3d 287, 293 (9th Cir. 1995) (declining to confer prevailing party
status under 42 U.S.C. § 1988 where subject matter jurisdiction was lacking); Clark v. Busey,

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959 F.2d 808, 810 (9th Cir. 1992) (“Subject matter jurisdiction to decide the merits of the
underlying action is a condition precedent to an award of fees or costs under the EAJA.”
(internal quotations omitted); Johnson-Manville Corp. v. United States, 893 F.2d 324, 328 (Fed.
Cir. 1989) (finding a lack of subject matter jurisdiction barred fee award); Lane v. United States,
727 F.2d 18, 20-21 (1st Cir. 1984) (determining that a want of subject matter jurisdiction
precluded an award of fees). Accordingly, a dismissal of this action for lack of subject matter
jurisdiction, as determined in Wolf, cannot support an award of attorneys’ fees and costs as a
general principle.
The same result is compelled under Section 505. While the Tenth Circuit has not
specifically addressed the issue, other circuits have done so. See Cadkin v. Loose, 569 F.3d 1142,
1147 (9th Cir. 2009) (“Cadkin”); Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 164 (1st
Cir. 2007) (holding the material alteration test applies to copyright claims and concluding that a
dismissal for lack of subject matter jurisdiction does not confer prevailing party status). Thus, the
Court’s decision to award attorneys’ fees and costs under Section 505, which is mistakenly based
on a Rule 56 analysis, is error. This error should not contaminate the case at bar. Accordingly,
the Court should not apply its decision in Wolf to this action by granting summary judgment
under Rule 56(f)(3).
E.

This Case At Bar Should Be Stayed Or Dismissed Without Prejudice
Pursuant To Rule 12(b)(1) Or Rule 12(h)(3) Despite The Wolf
Decision.

Righthaven certainly understands that the Court may not be inclined to alter its analysis
contained in the Wolf decision. The Court was faced with some very difficult considerably issues
without the benefit of clear Tenth Circuit authority to assist in its analysis. These circumstances,
however, do not justify a wholesale application of the Wolf decision to the cases in which
Righthaven has submitted a substantive response to the Court’s OSC. Rather, these
circumstances genuinely support staying the actions to which Righthaven has filed an OSC
response until the Tenth Circuit adjudicates the Wolf decision.

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In most of the actions to which a substantive OSC response has been submitted, there has
been little, if any, substantive litigation beyond an answer and maybe an asserted counterclaim.
Adopting the Wolf decision to these actions would only serve to present numerous individual
cases to the Tenth Circuit in which each defending party’s counsel will want to brief and argue
matters that will already be sufficiently and competently handled by Mr. Wolf’s and amici
counsel. While consolidation may seem to present a means of handling this situation, it does not.
At best, oral arguments in several cases will heard by the same panel on the same day by the
Tenth Circuit. Consolidation would amount to nothing more than the proverbial attempt at
herding cats, which each defense counsel looking to make a written submission to the Tenth
Circuit. Righthaven trusts, based on this Court’s service by designation at the Tenth Circuit, that
it appreciates the fact that less material is often more beneficial when briefs are submitted on
appeal. Accordingly, Righthaven asks the Court to stay the matters in which is has submitted
substantive OSC responses until the Wolf decision is adjudicated on appeal by the Tenth Circuit.
Alternatively, Righthaven asks the Court to take the approach that it believes is required
by controlling case law – dismiss the other pending actions for lack of subject matter jurisdiction
without prejudice pursuant to Rule 12(b)(1) or Rule 12(h)(3). If the Court wishes to dismiss
pursuant to Rule 56, however, it must first determine that Righthaven has subject matter
jurisdiction to maintain its copyright infringement action. Finding a lack of subject matter
jurisdiction and entering an adjudication on the merits pursuant to Rule 56 is simply
irreconcilable with existing case law.
III.

CONCLUSION

For the foregoing reasons, Righthaven respectfully asks the Court not to apply the Wolf
decision to the case at bar pursuant to Rule 56(f)(3).
Righthaven also asks the Court to stay the case at bar while it appeals the Wolf decision
to the Tenth Circuit to avoid unnecessarily multiplying the cases on appeal. Alternatively,
Righthaven asks the Court to correct its apparent error in the Wolf decision and substantively

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analyze the presence of subject matter jurisdiction under Rule 12(b)(1). Should it then conclude
that subject matter jurisdiction is lacking, Righthaven maintains that the case at bar should be
dismissed without prejudice.
Dated this 7th day of October, 2011.
By: /s/ Shawn A. Mangano
SHAWN A. MANGANO, ESQ.
SHAWN A. MANGANO, LTD.
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129-7701
Tel: [phone]
Fax: [phone]
[e-mail]
Attorney for Plaintiff Righthaven LLC

CERTIFICATE OF SERVICE
Pursuant to Federal Rule of Civil Procedure 5(b), I hereby certify that on October 7,
2011, RIGHTHAVEN LLC’S RESPONSE TO ORDER TO SHOW CAUSE WITH
CERTIFICATE OF SERVICE I caused the foregoing to be to be served by the Court’s
CM/ECF system.

By: /s/ Shawn A. Mangano
SHAWN A. MANGANO, ESQ.
SHAWN A. MANGANO, LTD.

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