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

Filing 21

REPLY to Response to 18 MOTION to Stay Rule 26(f) Conference MOTION to Stay Rule 26(f) Conference ; filed by Defendants David J. Della Terza, Nathan E. Palmer, Vote For The Worst, LLC. Defendants' Reply in Support of Their Motion to Stay Rule 26(f) Conference (Williams, Nikkya)

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

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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 submit their reply in support of their motion to stay the Rule 26(f) conference. Righthaven improperly contends that orders entered in other Righthaven lawsuits prosecuted in this District dictate the outcome of this case. Indeed, to embark on such a course as Righthaven proposes is contrary to established Ninth Circuit law. First, the orders entered in Righthaven v. Dr. Shezad Malik Law Firm P.C. (Case No: 2:10cv-0636-RLH-RJJ) and Righthaven v. Industrial Wind Action Corp. et al. (Case No: 2:10-cv0601-RLH-PAL) are not dispositive of any factual or legal issue currently before this Court. Judge Hunt's orders in Malik and Industrial Wind Action have no binding precedent on cases pending before any other judges in the District of Nevada. See In Re Silverman, No. 08-56508, -1551711.1

Case No. 2:10-cv-01045-KJD-RJJ

DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO STAY RULE 26(f) CONFERENCE

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

2010 WL 3169415, at *3 (9th Cir. Aug. 12, 2010) (citing Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n. 13 (9th Cir. 1977)) ("[t]he doctrine of stare decisis does not compel one district court judge to follow the decision of another."). Moreover, the orders entered in Malik and Industrial Wind Action are necessarily limited to the facts of those cases. The determination of whether a defendant is subject to personal jurisdiction in a particular forum ultimately rests on the specific facts present in each individual case. The Ninth Circuit has stated that "the personal jurisdiction inquiry cannot be answered through the application of a mechanical test but instead must focus on the relationship among the defendant, the forum, and the litigation within the particular factual context of each case." CoreVent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1487 (9th Cir. 1993). The facts in this case are as different as can be from those in Malik and Industrial Wind Action. In both Malik and Industrial Wind Action, the defendants themselves were alleged to have posted the infringing article. In this case, Defendants have established that a third-party, not the Defendants, posted the allegedly infringing article to the Vote for the Worst website. The

Defendants, in this case, are not accused of taking any volitional act with respect to the publication of the Plaintiff's works, but rather are accused of simply failing to remove works posted by a third party. The acts of that third party might be considered to be volitional acts targeting the forum state, but these defendants' alleged inaction can not be seriously considered to meet the express targeting requirement under Calder v. Jones. Moreover, even though the Defendants are before this court due to alleged inaction, they nevertheless removed the allegedly infringing article from their website before Plaintiff filed the instant lawsuit. These facts are entirely different from those presented in Malik or Industrial Wind Action; therefore, the orders entered in that case are inapposite to the instant case. /// /// /// /// /// -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 14th 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 14th day of October, 2010, I caused documents entitled: · DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO STAY RULE 26(f) CONFERENCE

to be served as follows: [ ] 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/ Jennifer Bryan Jennifer Bryan An employee of Lewis and Roca LLP

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