Righthaven LLC v. LEON et al

Filing 56

MOTION to Stay re 53 Judgment on Attorney Fees, 52 Order on Motion for Attorney Fees, 54 MOTION for Preliminary Injunction Temporary Stay Request by Plaintiff Righthaven LLC. Motion ripe 7/12/2011. (Mangano, Shawn)

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SHAWN A. MANGANO, ESQ.
Nevada Bar No. 6730
[e-mail]
SHAWN A. MANGANO, LTD.
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129-7701
Tel: [phone]
Fax: [phone]

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Attorneys for Righthaven LLC

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RIGHTHAVEN LLC, a Nevada limitedliability company,

Case No.: 2:10-cv-01672-GMN-LRL
PLAINTIFF RIGHTHAVEN LLC’S
APPLICATION FOR TEMPORARY
STAY OF JUDGMENT AND ORDER
GRANTING DEFENDANT MICHEAL
LEON’S COUNSEL’S MOTION FOR
ATTORNEY’S FEES AND COSTS

Plaintiff,
v.

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MICHAEL LEON, an individual; DENISE
NICHOLS, an individual; and MEDBILLZ,
INC., a corporation of unknown origin,

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Defendants.

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Righthaven LLC (“Righthaven”) hereby applies for a temporary stay of the judgment (the

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“Judgment,” Doc. # 53) related to the Court’s July 5, 2011 Order (the “July 5th Order”, Doc. #

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52) granting Defendant Michael Leon’s counsel’s (“Opposing Counsel”) Motion for Attorney’s

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Fees and Costs (the “Motion”, Doc. # 42.). Righthaven requests the Court temporarily stay any

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enforcement proceedings related to the Judgment so that it can properly evaluate any potential

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appealable issues contained in the July 5th Order and, if so, provide the company with sufficient

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time to obtain any security required to be posted on appeal.

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Additionally, while Opposing Counsel is apparently not amenable to discussing a
resolution of Judgment that does not entail immediate payment as set forth in their Motion for

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Preliminary Injunction (Doc. # 54), cooler heads may prevail during a brief stay that could result

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in an agreeable resolution to this matter without the need for additional specious filings.

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Opposing Counsel’s Motion for Preliminary Injunction is just such an unnecessary and

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unwarranted filing, which has now been set for hearing on July 26, 2011, for numerous reasons.

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First, well-established precedent prohibits the Court from issuing preliminary injunctive

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relief to ensure collectability of a judgment absent a lien or other security interest. See Grupo

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Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 319-20 (1999); see also

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Dateline Exports, Inc. v. Basic Const., Inc., 306 F.3d 912, 914 (9th Cir. 2002); United States ex.

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rel. Rahman v. Oncology Assocs., P.C., 198 F.3d 489, 496 (4th Cir. 1999). Second, injunctive

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relief is also an inappropriate remedy to compel payment of a debt. See Great-West Life &

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Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210-211 (2002). Third, contrary to Opposing

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Counsel’s bluster, there is simply no competent evidence supporting the conclusion that

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Righthaven is insolvent, engaging in frustrating collection of the Judgment or otherwise

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dissipating assets.

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Most amazingly, however, is Opposing Counsel’s apparent reliance on the prevailing

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party provision under the Copyright Act to justify entry of the requested injunctive relief.

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Opposing Counsel is most certainly aware that an independent basis for subject matter

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jurisdiction must exist beyond reliance on Federal Rule of Civil Procedure 65 in order to obtain

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injunctive relief. See United States v. Cohen, 152 F.3d 321, 325 (4th Cir. 1998); Enterprise Int’l,

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Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 470 (5th Cir. 1985). As a

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result, Opposing Counsel has attempted to bootstrap their request by couching the Court’s fee

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award under 17 U.S.C. § 504 (Doc. # 54 at 3-4) despite the July 5th Order containing absolutely

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no finding that the award was made under this statutory provision. (Doc. # 52.) Moreover,

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Opposing Counsel’s reliance on the Copyright Act as a subject matter jurisdictional basis for

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entering the requested relief is completely contrary to this same firm having made, and prevailed

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on, the argument Righthaven lacks standing to assert copyright infringement claims. See, e.g.,

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Righthaven LLC v. Hoehn, 2011 WL 2441020, at *6 (D. Nev. June 20, 2011). While Righthaven

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asserts that it has standing to maintain its copyright infringement claims despite the finding in

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Hoehn, it certainly accepts Opposing Counsel’s apparent concession that subject matter

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jurisdiction exists under the Copyright Act in this matter. In fact, Righthaven maintains that

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such a concession should be equally applied to all other matters in which Opposing Counsel has

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contested or is contesting Righthaven’s standing to pursue infringement claims under the

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Copyright Action. In this regard, Opposing Counsel appears to have not only assisted

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Righthaven’s efforts “to rearrange the deck chairs on the Titanic,” but their arguments also serve

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to provide life boats for each and every passenger on their figuratively referenced ocean liner.

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As the Court is certainly aware, Righthaven’s counsel dismissed the action against Leon

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without prejudice based on the belief that any resulting fee award would be made to a non-profit

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legal organization. Counsel certainly did not believe this “non-profit legal organization” would

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be Opposing Counsel’s law firm. Had this fact been made clear, Righthaven would have

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unquestionably dismissed its claims against Leon with prejudice. Further complicating counsel’s

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decision was the fact that Leon had only retained counsel to appear at the hearing. Leon wanted

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a decision before counsel’s engagement ended and Righthaven’s counsel relied upon the Court’s

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statements during oral argument about the nature of any resulting fee award. Righthaven’s

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counsel requires a brief stay of the Judgment entered in this action, which would preclude more

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unnecessary and harassing filings by Opposing Counsel, while potential appealable issues related

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to the July 5th Order are properly evaluated and, if sufficient grounds exist, allow of adequate

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time to post any security required for appeal.

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Based on the foregoing, Righthaven respectfully requests the Court temporarily stay the
Judgment resulting from its July 5th Order for a period of thirty days.
Dated this 12th day of July, 2011.

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SHAWN A. MANGANO, LTD.

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By: /s/ Shawn A. Mangano, Esq.
SHAWN A. MANGANO, ESQ.
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129-7701

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Attorney for Righthaven LLC

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CERTIFICATE OF SERVICE
Pursuant to Federal Rule of Civil Procedure 5(b), I hereby certify that on this 12th day of
July, 2011, I caused the foregoing document to be to be served by the Court’s CM/ECF system,
as well as deposited in a sealed envelope, a copy of in the United States Mail, with first-class
postage affixed thereto, to the following persons:

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Michael Alan Leon
5767 Monticello Way
Fitchburg, WI 53719
Pro Se Defendant
Michael Leon

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SHAWN A. MANGANO, LTD.

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By: /s/ Shawn A. Mangano, Esq.
SHAWN A. MANGANO, ESQ.
Nevada Bar No. 6730
[e-mail]
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129-7701
Tel: [phone]
Fax: [phone]

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Attorney for Righthaven LLC

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