Righthaven LLC v. Vote For The Worst, LLC et al

Filing 18

MOTION to Stay Rule 26(f) Conference by Defendants David J. Della Terza, Nathan E. Palmer, Vote For The Worst, LLC. Motion ripe 10/6/2010. (Attachments: # 1 Declaration of Nikkya G. Williams in Support of Defendants' Motion to Stay Rule 26(f) Conference)(Williams, Nikkya)

Righthaven LLC v. Vote For The Worst, LLC et al

Doc. 18

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Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169

John L. Krieger (NV Bar No. 6023) [e-mail] Nikkya G. Williams (NV Bar No. 11484) [e-mail] LEWIS AND ROCA LLP 3993 Howard Hughes Pkwy., Suite 600 Las Vegas, Nevada 89169 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Vote for the Worst, LLC, Nathan E. Palmer, and David J. Della Terza UNITED STATES DISTRICT COURT DISTRICT OF NEVADA RIGHTHAVEN, LLC, a Nevada limited liability company, Plaintiff, vs. VOTE FOR THE WORST, LLC, an Utah limited-liability company; NATHAN E. PALMER, an individual; and DAVID J. DELLA TERZA, an individual, Defendant. Defendants Vote For The Worst, LLC, Nathan E. Palmer, and David J. Della Terza, by and through their counsel, hereby move the Court, pursuant to Rule 26(c), to stay the Rule 26(f) conference until the Court rules on Defendants' pending motion to dismiss. (Doc. 14.) This motion is supported by the memorandum of points and authorities below and the Declaration of Nikkya G. Williams ("Williams Decl.") attached hereto. Plaintiff Righthaven, LLC ("Righthaven") sent a letter to Defendants' counsel on September 28, 2010, requesting that counsel participate in a 26(f) discovery conference. (Williams Decl. ¶ 2.) Defendants' counsel contacted Righthaven and requested that Righthaven agree to stipulate to stay the 26(f) conference pending the Court's decision on Defendants' Motion to Dismiss. (Id. ¶ 3.) Righthaven refused to agree to postpone the Rule 26(f) conference, DEFENDANT'S MOTION TO STAY RULE 26(f) CONFERENCE Case No. 2:10-cv-01045-KJD-RJJ

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necessitating the filing of the instant motion. (Id. ¶ 4.) -1551711.1

Dockets.Justia.com

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Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169

On August 16, 2010, Defendants moved to dismiss this copyright infringement action -one of over 140 suits filed by Plaintiff Righthaven, LLC ("Righthaven") since March 2010 -- on the grounds that the Court does not have subject matter jurisdiction or personal jurisdiction over Defendants. If the Court grants Defendants' motion to dismiss, there would be no need for the parties to hold a Rule 26(f) conference and commence discovery. Thus, it is premature for the parties to proceed with the Rule 26(f) conference and discovery on the merits until after the Court has decided the pending motion. However, notwithstanding the likelihood that the Court will soon rule on Defendants' motion to dismiss, Righthaven is insisting that the parties proceed with a Rule 26(f) conference, which, of course, would trigger the deadline for making initial disclosures and commencing discovery. Righthaven is apparently attempting to put pressure on Defendants, a company and individuals who live hundreds of miles away and have no contacts with the state of Nevada, to incur potentially unnecessary and burdensome attorneys' fees and costs in an effort to compel Defendants to settle a case that was brought in an improper forum by an improper plaintiff. Defendants should not be subjected to the burden and expense of discovery on the merits unless and until the Court determines that it has personal jurisdiction over them and subject matter jurisdiction over the claim. It is well within the Court's discretion to order a stay of the Rule 26(f) conference and, indeed, courts in the Ninth Circuit, including this Court, have done so. See e.g Guerra v. Just Mortgage Inc., 2:10-cv-00029-KJD-RJJ, 2010 U.S. Dist. LEXIS 93077, at *3 (D. Nev. Aug. 18, 2010). A pending motion to dismiss for lack of subject matter and personal jurisdiction is grounds for staying discovery. See Twin City Fire Ins. Co. v. Employers Ins. of Wausau, 124 F.R.D. 652, 653 (D. Nev. 1989). Righthaven would not be prejudiced by a stay of the Rule 26(f) conference. The conduct that is the subject of its suit is alleged copyright infringement based on the posting of a single Las Vegas Review-Journal article by a third party on the VoteForTheWorst.com website. Righthaven is not seeking any preliminary injunctive relief and Defendants removed the article from their website prior to this lawsuit being filed. Accordingly, there is no imminent need to proceed with discovery on the merits given the pending motion before the Court. -2551711.1

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Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169

CONCLUSION For the foregoing reasons, the Court should enter an order staying the Rule 26(f) conference until the Court renders a decision on Defendants' pending motion to dismiss. Dated: this 6th day of October, 2010. Respectfully submitted, LEWIS AND ROCA LLP

By: /s/ Nikkya G. Williams John L. Krieger (Nevada Bar No. 6023) Nikkya G. Williams (Nevada Bar No. 11484) 3993 Howard Hughes Parkway, Suite 600 Las Vegas, NV 89169 [phone] (Tel.) [phone] (Fax) Attorneys for Defendants Vote for the Worst, LLC, NATHAN E. PALMER, and DAVID J. DELLA TERZA

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Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169

CERTIFICATE OF SERVICE Pursuant to Federal Rule of Civil Procedure 5(b), I hereby certify that I am an employee of Lewis and Roca LLP and that on this 6th day of October, 2010, I caused documents entitled: · DEFENDANT'S MOTION TO STAY RULE 26(f) CONFERENCE

to be served as follows: [X] by depositing same for mailing in the United States Mail, in a sealed envelope addressed to Steven A. Gibson, Esq., Righthaven, LLC, 9960 West Cheyenne Avenue, Suite 210, Las Vegas, Nevada, 89129-7701, upon which first class postage was fully prepaid; and/or Pursuant to Fed. R. Civ. P. 5(b)(2)(D), to be sent via facsimile as indicated; and/or to be hand-delivered; by the Court's CM/ECF system. /s/ Diana Trujillo Diana Trujillo An employee of Lewis and Roca LLP

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