Righthaven LLC v. Democratic Underground, LLC et al

Filing 81

MOTION for Leave to File Response to Counterclaimant Democratic Underground, LLC's Supplemental Memorandum And Supporting Declaration of Laurence Pulgram (#72) by Counter Defendant Stephens Media LLC. Motion ripe 3/9/2011. (Erwin, Philip)

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CAMPBELL & WILLIAMS DONALD J. CAMPBELL, ESQ. (1216) J. COLBY WILLIAMS, ESQ. (5549) PHILIP R. ERWIN, ESQ. (11563) 700 South Seventh Street Las Vegas, Nevada 89101 Telephone: [phone] Facsimile: [phone] Email: [e-mail] [e-mail] Attorneys for Counterdefendant Stephens Media, LLC UNITED STATES DISTRICT COURT DISTRICT OF NEVADA RIGHTHAVEN LLC, a Nevada limitedliability company, Plaintiff, v. DEMOCRATIC UNDERGROUND, LLC, a District of Columbia limited-liability company; and DAVID ALLEN, an individual, Defendants. COUNTER-DEFENDANT STEPHENS MEDIA LLC'S JOINDER IN MOTION TO RECONSIDER ORDER (#78), IN THE ALTERNATIVE, MOTION FOR LEAVE TO FILE RESPONSE TO COUNTERCLAIMANT DEMOCRATIC UNDERGROUND, LLC'S SUPPLEMENTAL MEMORANDUM AND SUPPORTING DECLARATION OF LAURENCE PULGRAM (#72) Case No.: 2:10-cv-01356-RLH-RJJ

DEMOCRATIC UNDERGROUND, LLC, a District of Columbia limited-liability company, Counterclaimant, v. RIGHTHAVEN LLC, a Nevada limitedliability company; and STEPHENS MEDIA LLC, a Nevada limited-liability company, Counterdefendants.

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Counter-Defendant Stephens Media LLC ("Stephens Media") hereby submits the instant Joinder in Motion to Reconsider Order (#78), in the Alternative, Motion for Leave to File a Response to Counterclaimant Democratic Underground, LLC's Supplemental Memorandum and Supporting Declaration of Laurence Pulgram (#72). This Motion is based upon the

pleadings and papers on file in this action, any oral argument this Court may allow, and any
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other matter of which this Court takes notice. MEMORANDUM OF POINTS AND AUTHORITIES I. BACKGROUND On March 4, 2011, Defendant/Counterclaimant Democratic Underground, LLC ("DU") filed its Motion for Leave to File Supplemental Memorandum and Supporting Declaration of Laurence Pulgram (#72). DU alleged that Stephens Media produced new evidence in the course of discovery which is "highly relevant" to the pending dispositive motions in this matter (#36, 38, 45). DU also submitted its Supplemental Memorandum and Supporting Declaration of Laurence Pulgram which presented the so-called "new evidence" for the Court's consideration in addition to extensive legal argument. On March 9, 2011, the Court granted DU's Motion for Leave to File Supplemental Memorandum and Supporting Declaration of Laurence Pulgram (#76). Defendant Righthaven, LLC filed a Motion to Reconsider the foregoing Order later the same day (#78). II. DISCUSSION Stephens Media hereby joins in the Motion to Reconsider filed by Righthaven. In the event the Court denies the Motion to Reconsider, Stephens Media alternatively seeks leave to submit its own supplemental brief in response to that filed by DU. As the moving party on the underlying Motion to Dismiss, Stephens Media would ordinarily be the party entitled to close

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the briefing with a reply. Because DU has now been granted leave to file a Supplemental Memorandum that relies on "new evidence" and sets forth new legal argument, Stephens Media respectfully submits that it should be provided the opportunity to respond thereto. See United States v. One Parcel of Real Prop. Described as Lot 41, Berryhill Farm Estates, 128 F.3d 1386, 1395 fn. 6 (10th Cir. 1997) (granting motion for leave to respond to supplemental authority).

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Cf. Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (a party may not submit "new" evidence in a reply without affording the opposing party an opportunity to respond because "[s]uch a result would be unfair"); Am. Civil Liberties Union of Nevada v. City of Las Vegas, 13 F.Supp.2d 1064, 1071 (D. Nev. 1998) ("[w]hen new evidence is submitted with a reply brief, the court should not consider the new evidence without giving the non-moving party an opportunity to respond"). III. CONCLUSION Stephens Media joins in Righthaven's Motion to Reconsider. Should the Court deny said Motion, Stephens Media respectfully seeks leave to file a supplemental brief that responds

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to the new evidence and arguments presented in DU's Supplemental Memorandum. Dated this 9th day of March, 2011. Respectfully submitted, CAMPBELL & WILLIAMS By__/s/ J. Colby Williams_________________ DONALD J. CAMPBELL, ESQ. (#1216) J. COLBY WILLIAMS, ESQ. (#5549) PHILIP R. ERWIN, ESQ. (#11563) 700 South Seventh Street Las Vegas, Nevada 89101 Attorneys for Counterdefendant Stephens Media, LLC

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CERTIFICATE OF SERVICE The undersigned hereby certifies that service of the foregoing was served on the 9th day of March, 2011 via the Court's CM/ECF electronic filing system addressed to all parties on the e-service list. __/s/ J. Colby Williams_________________ An employee of Campbell & Williams

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