Righthaven LLC v. Newman

Filing 24

RESPONSE to 23 Emergency MOTION for District Judge to Reconsider Order re 21 Amended Complaint, 22 Order on Motion to Dismiss/Lack of Jurisdiction,, Add and Terminate Parties, Terminate Deadlines/Hearings On Shortened Time Pursuant to LR 6-1(a), filed by Defendant Garry Newman. Replies due by 8/11/2011. (DiRaimondo, Anthony).

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BONE McALLESTER NORTON PLLC
STEPHEN J. ZRALEK (Admitted pro hac vice)
Nashville City Center
511 Union Street, Suite 1600
Nashville, Tennessee 37219
Telephone: [phone] // Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendant
GARRY NEWMAN

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100 NORTH CITY PARKWAY, SUITE 1600
LAS VEGAS, NV 89106
[phone]

BROWNSTEIN HYATT FARBER SCHRECK, LLP

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BROWNSTEIN HYATT FARBER SCHRECK, LLP
KIRK B. LENHARD (Nevada Bar No. 1437)
ANTHONY J. DIRAIMONDO (Nevada Bar No. 10875)
100 North City Parkway, Suite 1600
Las Vegas, Nevada 89106
Telephone: [phone] // Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RIGHTHAVEN, LLC,

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Plaintiff,

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v.

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GARRY NEWMAN, an individual; and
FACEPUNCH STUDIOS LTD., a limited
company formed under the laws of Great
Britain,

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Case No.: 2:10-cv-01762-JCM -PAL
DEFENDANT’S RESPONSE IN
OPPOSITION TO PLAINTIFF’S
MOTION FOR RECONSIDERATION OF
ORDER DISMISSING COMPLAINT
AGAINST GARRY NEWMAN

Defendants.

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MEMORANDUM OF POINTS AND AUTHORITIES

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Defendant Garry Newman (“Newman”) responds in opposition to the Motion for

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Reconsideration that Plaintiff Righthaven, LLC (“Righthaven”) filed, seeking to set aside the

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Court’s Order Dismissing the Complaint against Newman.1 Under Local Rule 7-2(b), the Court

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properly granted Newman’s Motion to Dismiss based on Righthaven’s failure to file a response.

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In its First Amended Complaint, Righthaven has added as a defendant Facepunch Studios Ltd., a
limited company formed under the laws of Great Britain. Righthaven has not served process on
Facepunch, and this Response is filed solely on behalf of Newman.
15141\1\1568903.1

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Motion to Dismiss was due July 15, 2011. See Doc. 23 at p. 2. Righthaven asserts that it filed its

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First Amended Complaint on July 15, 2011. Id. Righthaven also asserts that its First Amended

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Complaint constitutes a response to the Motion to Dismiss. Both assertions are misleading. First,

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the Court’s CM-ECF stamp across the top of Righthaven’s First Amended Complaint shows it

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was not filed until July 16, 2011. See Doc. 21. Second, it was improper for Righthaven to file its

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First Amended Complaint “as of right” under Rule 15(a), since the amended complaint is largely

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based on new transactions and occurrences that took place after the filing of the original

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complaint, namely Righthaven’s second amendment to the underlying Strategic Alliance

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BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432

As Righthaven admits in its Motion for Reconsideration, its response to Newman’s

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BROWNSTEIN HYATT FARBER SCHRECK, LLP, A LAW CORPORATION

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Agreement with Stephens Media, dated July 7, 2011, on which Righthaven claims to base its

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standing.

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pleading,” which required permission from the Court and notice to Newman prior to its filing,

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under Rule 15(d).

Accordingly, Righthaven’s “amended complaint” is actually a “supplemental

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“The disposition of a motion for reconsideration is within the district court's discretion.”

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U.S. E.E.O.C. v. Scolari Warehouse Markets, Inc., 488 F. Supp. 2d 1117, 1142 (D. Nev. 2007)

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(denying motion for reconsideration and citing Bliesner v. Commc'n Workers of Am., 464 F.3d

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910, 915 (9th Cir.2006)). Similarly, a district court’s dismissal of a complaint pursuant to its

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local rules is reviewed on appeal for an abuse of discretion. Ghazali v. Moran, 46 F.3d 52, 53

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(9th Cir. 1995) (quoting United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979)). “Only in

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rare cases will [an appellate court] question the exercise of discretion in connection with the

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application of local rules.” Id.

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Righthaven’s failure to timely respond to Newman’s Motion to Dismiss was only one of

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the grounds the Court considered in granting the dismissal. As explicitly stated in the Order, the

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Court also weighed five factors: “(1) the public's interest in expeditious resolution of litigation;

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(2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public

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policy favoring disposition of cases of their merits; and (5) the availability of less drastic

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sanctions.” See Order (Doc. 22) at 1 (quoting Ghazali, 46 F.3d at 53). Reconsideration should be

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denied given the Court’s consideration of the above factors, Righthaven’s failure to file any
15141\1\1568903.1

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response to the Motion to Dismiss, the Court’s granting dismissal without prejudice, and

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Righthaven’s improper filing of an Amended Complaint as of right when it was required to seek

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permission.

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Here there is no need for the Court to reconsider its Order granting Newman’s Motion to

Righthaven to file a new complaint against Newman. Righthaven failed to take advantage of the

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opportunity to file an amendment as of right, and instead filed a supplemental pleading without

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permission, as discussed above. Righthaven’s 21-day period under Rule 15(a)(1)(B) has since

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expired. Nevertheless, contemporaneous with the filing of this Response, Newman is filing a

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BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432

Dismiss.

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BROWNSTEIN HYATT FARBER SCHRECK, LLP, A LAW CORPORATION

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Motion to Dismiss Righthaven’s improperly labeled “First Amended Complaint,” to address the

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substantive flaws in the Complaint – the lack of subject matter jurisdiction and lack of personal

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jurisdiction.

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The Order granted the dismissal without prejudice, which would have allowed

DATED this 1st day of August, 2011.

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BROWNSTEIN HYATT FARBER SCHRECK LLP

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By: /s/ Anthony J. DiRaimondo
Kirk B. Lenhard, Nevada Bar No. 1437
Anthony J. DiRaimondo, Nevada Bar No. 10875
100 N. City Parkway, Suite 1600
Las Vegas, NV 89106
[e-mail]
[e-mail]
[phone]

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BONE McALLESTER NORTON PLLC

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By: /s/ Stephen J. Zralek
Stephen J. Zralek, Admitted pro hac vice
511 Union Street, Suite 1600
Nashville, TN 37212
[e-mail]
[phone]

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Attorneys for Defendant
GARRY NEWMAN

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15141\1\1568903.1

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CERTIFICATE OF SERVICE
Pursuant to Fed.R.Civ.P.5(b), and Section IV of District of Nevada Electronic Filing

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Procedures, I certify that I am an employee of BROWNSTEIN HYATT FARBER SCHRECK,

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LLP, and that on the 1st day of August, 2011, the foregoing DEFENDANT’S RESPONSE IN

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OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATION OF ORDER

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DISMISSING COMPLAINT AGAINST GARRY NEWMAN was served via electronic

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service to the address shown below:

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BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432

BROWNSTEIN HYATT FARBER SCHRECK, LLP, A LAW CORPORATION

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Shawn A. Mangano, Esq.
SHAWN A. MANGANO, LTD.
9960 West Cheyenne Ave., Suite 170
Las Vegas, NV 89129-7701
[e-mail]
Attorney for Plaintiff
Righthaven, LLC

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/s/ Paula Kay
an employee of Brownstein Hyatt Farber Schreck, LLP

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15141\1\1568903.1

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