LHF Productions, Inc. v. Does

Filing 179

ORDER. IT IS HEREBY ORDERED that 120 LHF's motion to dismiss Kabala's counterclaims is GRANTED in part, and 136 LHF's special motion under NRS 41.660 to dismiss Kabala's abuse-of-process counterclaim is GRANTED. Both of Kabala's counterclaims are DISMISSED with prejudice. IT IS FURTHER ORDERED that 174 LHF's motion to voluntarily dismiss with prejudice its claims against Kabala is GRANTED. IT IS FURTHER ORDERED that 175 , 178 all other pending motions are DENIED as moot. The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 8/24/2018. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LHF Productions, Inc.,

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Plaintiff

Case No.: 2:16-cv-02028-JAD-NJK
Order Dismissing All Claims
and Closing Case

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v.

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Brian Kabala, et al.,
[ECF Nos. 120, 136, 174, 175, 178]
Defendants

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9

Two years ago, LHF Productions, Inc. filed this action for copyright infringement against

10 several unidentified doe defendants, 1 alleging that they had used BitTorrent software to illegally
11 download the film London Has Fallen. 2 LHF eventually identified those defendants and
12 systematically dismissed all claims against them after settling with or failing to serve them; 3
13 Brian Kabala was one of those defendants. Kabala then counterclaimed against LHF for a
14 declaration of non-infringement and for abuse of process. 4
15

After a round of dismissal-motion briefing, I found that LHF had failed to demonstrate a

16 basis to dismiss Kabala’s declaratory-judgment counterclaim, but I dismissed Kabala’s abuse-of17 process counterclaim with leave to amend it. 5 Kabala amended his counterclaim (re-alleging
18 both claims), and LHF moved to dismiss once again. 6 But before I could resolve that dismissal
19 motion, LHF filed a separate special motion to dismiss under Nevada’s anti-SLAPP statute, NRS
20 § 41.660. 7 After considering the parties’ arguments for each motion, I find that LHF has shown
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ECF No. 1.

2

Id.

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ECF Nos. 10, 14, 39, 43, 69, 72, 79, 83.

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ECF No. 22.

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ECF No. 90 at 14–15.

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ECF No. 120.

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ECF No. 136.

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1 that Kabala’s counterclaims should be dismissed as a matter of law. So, I dismiss both
2 counterclaims and close this case.
Discussion

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4 A.

Kabala’s request for declaratory relief is dismissed.

5

Under the Declaratory Judgment Act, a potential defendant may sue preemptively for

6 declaratory relief if the claim that would be asserted against him arises under federal law. 8
7 Because courts may not render advisory opinions based on hypothetical facts, 9 there must be an
8 actual controversy between the parties before a federal court may exercise jurisdiction. For an
9 actual controversy to exist in a declaratory-judgment action, there must be a “substantial
10 controversy, between parties having adverse legal interests, of sufficient immediacy and reality
11 to warrant the issuance of a declaratory judgment.” 10 An adverse legal interest requires a dispute
12 about a legal right—for example, an underlying legal cause of action that the declaratory
13 defendant could have brought or threatened to bring. 11 This requirement persists through all
14 stages of litigation, not just when the complaint is filed. 12
In order to prevail on his declaratory-judgment counterclaim, Kabala must prove that he

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16 has a “real and reasonable apprehension” of future suit that gives rise to an actual controversy
17 between himself and LHF. 13 But LHF doesn’t have any claims pending in this case; it
18 voluntarily dismissed all of its claims against all defendants, including Kabala, 14 and it now
19

8

Franchise Tax Board v. Laborers Vacation Trust, 463 U.S. 1, 27–28 (1983); Nationwide Mut.
Ins. Co. v. Liberatore, 408 F.3d 1158, 1162 (9th Cir. 2005).
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9
21 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937).
10

Id. at 942 (quoting Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)).

11

MedImmune, Inc. v. Genetech, Inc., 549 U.S. 118 (2007).

12

Aetna, 300 U.S. at 241.

13

Societe, 655 F.2d at 944.

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25

14
See ECF Nos. 87 (dismissing claims
ECF No. 90 (court severing and
26 dismissing claims against Donald Plainagainst Ante Soda);72 (dismissing claims against Brian
and John Koehly);
27 Kabala); 43 (dismissing claims against Maria Gonzalez and Daniel O’Connell); 39 (dismissing
claims against Matthew Stewart); 24 (dismissing claims against David Poor and Aaron
28 Takahashi); 10 (dismissing claims against Agustin Bertolin).

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1 requests that the dismissal of its claims against Kabala be with prejudice. 15 Kabala requests a
2 declaration of non-infringement to preclude LHF from refiling claims against him. In light of
3 LHF’s voluntary-dismissal-with-prejudice motion, that concern is moot. So, I dismiss Kabala’s
4 declaratory-judgment claim.
5 C.

Kabala’s abuse-of-process claim is dismissed.

6

SLAPP (Strategic Lawsuits Against Public Participation) lawsuits abuse the judicial

7 process by chilling, intimidating, and punishing individuals for their involvement in public
8 affairs. 16 To curb these oppressive lawsuits, Nevada’s legislature adopted anti-SLAPP laws that
9 immunize protected speakers from suit. Codified at NRS 41.660 et seq., Nevada’s anti-SLAPP
10 statutes permit a defendant to bring a special motion to dismiss an action “brought against a
11 person in furtherance of the right . . . to free speech in direct connection with an issue of public
12 concern.” 17 This procedural mechanism “filters unmeritorious claims in an effort to protect
13 citizens from costly retaliatory lawsuits arising from their right to free speech under both the
14 Nevada and Federal Constitutions.”18
The Nevada Supreme Court clarified the parties’ burdens when litigating a special motion

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16 under Nevada’s anti-SLAPP statute in Delucchi v. Songer. 19 The moving party must first
17 establish by a preponderance of the evidence that the claim challenges a “good faith
18 communication in furtherance of the right . . . to free speech in direct connection with an issue of
19 public concern.” 20 The defendant’s conduct is a good-faith communication if it falls within one
20 of the four categories enumerated in NRS 41.637 and “is truthful or is made without knowledge
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23

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ECF No. 174.

John v. Douglas Cty. Sch. Dist., 219 P.3d 1276, 1281 (Nev. 2009); Moreira-Brown v. Las
Vegas Review-Journal, Inc., 2017 WL 4158604, at *5 (D. Nev. Sept. 18, 2017).
24
17
NEV. REV. STAT. § 41.660(1)(a).
25
18

John, 219 P.3d at 1282.

19

Delucchi v. Songer, 396 P.3d 826 (Nev. 2017).

20

Moreira-Brown, 2017 WL 4158604, at *5 (quoting NEV. REV. STAT. § 41.660(3)(a)).

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1 of its falsehood.” 21 The burden then shifts to the plaintiff to establish “by clear and convincing
2 evidence a probability of prevailing on the claim.” 22 If the district court determines that the
3 plaintiff has shown by clear and convincing evidence a likelihood of succeeding on the merits,
4 the plaintiff may proceed with its claim. 23 But if the court grants the special motion to dismiss,
5 “the dismissal operates as an adjudication upon the merits.” 24
6

1.

Kabala’s abuse-of-process claim challenges a protected communication.

7

LHF argues that its complaint and pre-filing correspondence (including demand letters)

8 with Kabala are protected speech because they fall under one of the anti-SLAPP statute’s four
9 enumerated categories: a “[w]ritten or oral statement made in direct connection with an issue
10 under consideration by a legislative, executive[,] or judicial body, or any other official
11 proceeding authorized by law.” 25 LHF supports this argument with citations to several
12 California cases that interpret California’s anti-SLAPP statute—which is similar to Nevada’s 26—
13 to protect complaints, declarations, demand letters, settlement negotiations, and other
14 communicative acts. 27 Kabala encourages me to disregard LHF’s California citations, 28 but the
15 Nevada Supreme Court has repeatedly recognized the similarity between these anti-SLAPP
16
17
18
19

21

Delucchi, 396 P.3d at 833 (quoting NEV. REV. STAT. § 41.637).

20

22

Id. at 831.

21

23

Id.

22

24

NEV. REV. STAT. § 41.660(5).

23

25

ECF No. 136 at 5; NEV. REV. STAT. § 41.637(3).

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26

Compare CAL. CIV. PROC. CODE § 425.16(e)(2) with NEV. REV. STAT. § 41.637(3); see also
Shapiro v. Welt, 389 P.3d 262, 268 (Nev. 2017) (“Because this court has recognized that
25 California’s and Nevada’s anti-SLAPP ‘statutes are similar in purpose and language,’ we look to
26 California law for guidance on this issue.”) (internal citation omitted).
27
ECF No. 136 at 6–8.
27
28

28

ECF No. 140 at 6 n.2
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1 statutes and looked to California for guidance in this area. 29 So, I give those California cases
2 considerable weight.
Kabala adds that LHF’s assertion of statutory protection is one made “barely in passing,”

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4 that LHF fails to “suggest which of its communications fit” within NRS 41.637(3), and that “the
5 underlying communications undertaken in [a] judicial proceeding” are not covered by this
6 statute. 30 To hold otherwise, Kabala urges, “would encourage countless litigants to file Anti7 SLAPP motions,” which is “clearly not the intention of the Nevada legislature.” 31 Kabala adds
8 that “recent Nevada Supreme Court holdings suggest that LHF misapprehends the plain language
9 of that statute,” but supports this contention with three federal district court cases and a single
10 Nevada Supreme Court case with a conclusory parenthetical that reads: “reversing grant of anti11 SLAPP motion where communication at issue was not a protected communication.” 32
Plus, the parenthetical is wrong. The Court did not reverse the lower court’s grant of an

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13 anti-SLAPP motion because the communication wasn’t protected; it reversed because, although
14 the movant “made the required initial showing” that the communication at issue was protected,
15 the non-movant “presented sufficient evidence to defeat [the movant’s] special motion under the
16 [pre-amendment] summary judgment standard.” 33 So the Court remanded the case because there
17 was a “genuine issue for trial regarding whether the [communication at issue] was” protected. 34
18
29
See, e.g.,
P.3d at 268; John v. Douglas Cnty. Sch. Dist.,
19 (Nev. 2009)Shapiro, 389by statute in Delucchi, 396 P.3d 826; Delucchi,219 P.3d 1276, 1281
superseded
396 P.3d at 832.
20 30 ECF No. 140 at 5. Kabala’s minimization of LHF’s assertion as one made “barely in passing”
21 is disingenuous. LHF supports its assertion with three pages of detailed analysis with persuasive
authority from California courts interpreting a similar anti-SLAPP provision. See ECF No. 136
22 at 5–8.
31
Id. at 6.
23
32

Id. (citing to Chocolate Magic Las Vegas LLC v. Ford, case no. 2:17-cv-00690-APG-NJK,
2018 WL 475418 (D. Nev. Jan. 17, 2018); Moreira-Brown v. Las Vegas Review Journal, Inc.,
case no. 2:16-cv-0220-JAD-VCF, 2017 WL
Sept.
Delucchi v.
25 Songer, 396 P.3d 826, (Nev. 2017); Drussel 4158604 (D. Nev. Dist., 18, 2017);3353531 (D. Nev.
v. Elko Cnty. Sch.
2013 WL
26 July 2, 2013)).
33
Delucchi, 396 P.3d at 833–34.
27
24

34

28

Id. at 834.
5

The federal district court cases are equally unavailing. In Chocolate Magic, Judge

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2 Gordon addressed whether a communication was one made “in direct connection with an issue of
3 public interest in a place open to the public or in a public forum.” 35 The parties didn’t argue—so
4 he didn’t address—whether it was a “[w]ritten or oral statement made in direct connection with
5 an issue under consideration by a legislative, executive[,] or judicial body, or any other official
6 proceeding authorized by law.” 36 In Moreira-Brown, I held that an article reporting on a case
7 against a lawyer who was accused of rape was “a written statement in direct connection with an
8 issue under consideration by a judicial body.” 37 I did not consider whether a complaint and pre9 filing correspondence were also protected by Nevada’s anti-SLAPP laws—I certainly didn’t
10 foreclose their protection. And the Drussel court didn’t even address whether a specific
11 communication was protected; it merely allowed the non-movant “to conduct limited discovery”
12 to oppose the anti-SLAPP motion. 38
A “good faith communication in furtherance of the right to petition or the right to free

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14 speech in direct connection with an issue of public concern” includes any “[w]ritten or oral
15 statement made in direct connection with an issue under consideration by a legislative, executive,
16 or judicial body . . . .” 39 The statute has no temporal requirement that only communications that
17 come after the filing of a complaint are protected, and demand letters, settlement negotiations,
18 and declarations are clearly “made in direct connection” with a complaint, which is “under
19 consideration by a . . . judicial body.” LHF’s California authority also supports this notion.40
20

35

23

37

Moreira-Brown, 2017 WL 4158604, at *6–8.

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38

Drussel, 2013 WL 3353531, at *5.

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39

NEV. REV. STAT. § 41.637.

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40

Chocolate Magic, 2018 WL 475418, at *2–3 (referring to one of the four definitions of a
“good faith communication in furtherance of the right to petition or the right to free speech in
21
direct connection with an issue of public concern”).
22 36 Id.; NEV. REV. STAT. § 41.637(3).

See ECF No. 136 at 6–7 (citing Crossroads Inv’rs, L.P. v. Fed. Nat’l Mortg. Ass’n, 222 Cal.
Rptr. 3d 1, 24 (2017) (“Settlement discussions made in connection with litigation are protected
27
activity under the anti-SLAPP statute.”); GeneThera, Inc. v. Troy & Gould Prof’l Corp. 90 Cal.
Rptr. 3d 218, 222–23 (2009) (“[A]n attorney’s communication with opposing counsel on behalf
28 of a client regarding pending litigation directly implicates the right to petition and thus is subject
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1 And because LHF offers two signed declarations—one from its counsel and another from a
2 witness—that declare that the communications were truthful or made without knowledge of their
3 falsehood, I find that LHF has made the requisite showing that its communications are protected.
4

2.

5

Kabala has not shown a probability of success on his abuse-of-process claim by
clear and convincing evidence.

LHF has satisfied its burden of showing that the communications at issue are protected

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7 under Nevada’s anti-SLAPP laws, so the burden shifts to Kabala to show by clear and
8 convincing evidence a probability of success on his abuse-of-process claim. The two elements
9 that Kabala must show are: (1) an ulterior purpose behind the issuance of process; and (2) a
10 willful act in the use of process not proper in the regular conduct of the proceeding. 41 Kabala
11 has not shown either.
12
a.

13
14

Kabala does not establish by clear and convincing evidence that LHF
has an ulterior motive.

Kabala argues that his burden is met if he presents prima facie evidence that his claims

15 have “minimal merit.” 42 He supports this standard with an unpublished opinion from a Nevada
16 state trial court and a handful of Ninth Circuit cases that predate the 2013 amendments to
17 Nevada’s anti-SLAPP statute. 43 But Nevada’s Supreme Court recognized that the 2013
18 amendments to Nevada’s anti-SLAPP law require the non-movant to show, by clear and
19
20
21
v. DirecTV, Inc., 437 F.3d 923, 931
22 to a special motion to strike.”); see also Sosaprotect prelitigation communications(9th Cir. 2006)
(“Second, many states, including California,
under
statutorily granted litigation privileges. [citations]. Such laws highlight the intimate relationship
23 between presuit settlement demands and the actual litigation process.”)).
24 41
Nevada Credit Rating Bureau, Inc. v. Williams, 503 P.2d 9, 12 (1972); Bull v. McCuskey, 615
P.2d 957, 960 (1980); Abbot v. United Venture Capital, Inc., 718 F. Supp. 828, 834–35 (D. Nev.
25 1989).
26 42 ECF No. 140 at 9.
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43

I was unable to find the state-trial-court opinion on WestLaw, and my own Google search was
just as fruitless.
28
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1 convincing evidence, a probability of success on the merits. 44 So, I apply the clear-and2 convincing-evidence standard.
The Nevada Supreme Court has held that filing a complaint in order to coerce a nuisance

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4 settlement can constitute an ulterior purpose to satisfy the first element of an abuse-of-process
5 claim if the plaintiff knows that he has no basis for the claim. 45 “In Bull [v. McKuskey], the
6 Nevada Supreme Court upheld a jury award for abuse of process where the respondent’s
7 attorney, knowing he had no basis for his claim, brought suit against a physician for medical
8 malpractice with the ulterior purpose of coercing a nuisance claim settlement.” 46
Though Kabala’s allegations may satisfy the low standard required to defeat a 12(b)(6)

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10 motion, they miss the higher standard of “clear and convincing” evidence to defeat this special
11 motion. When faced with a special motion to dismiss—not merely a 12(b)(6) motion—the non12 movant must present evidence; allegations alone are insufficient. Though a track record of filing
13 complaints against hundreds of defendants and dismissing the lion’s share of them (as LHF has
14 done) can be considered suspect, filing legitimate lawsuits with the hope of resolving them by
15 settlement is not an improper use of the legal process.
There is no evidence that shows clearly and convincingly that LHF had no basis for its

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17 initial claims against Kabala. By Kabala’s own admission (and as my experience with
18 BitTorrent cases has shown), LHF identifies specific defendants by connecting them to IP
19 addresses that are (or have been) involved with torrenting its movies. The fact that LHF has not
20 yet taken a claim to trial does not diminish the legitimacy of its motives, particularly when the
21 vast majority of civil lawsuits never make it to trial. 47
22
23

44

Delucchi, 396 P.3d at 827.

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45

Bull, 615 P.2d at 960.

25

46

Posadas v. City of Reno, 851 P.2d 438, 445 (Nev. 1993) (citing Bull, 615 P.2d at 959–60).

26

47

See John Barkai, et al., A Profile of Settlement, COURT REVIEW: THE JOURNAL OF THE
AMERICAN JUDGES ASSOCATION, Vol. 42, Iss. 3-4 (December 2006) available at
27
http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1024&context=ajacourtreview
28 (“[P]erhaps up to 97% of cases are resolved by means other than by trial.”).
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b.

2

Kabala does not establish by clear and convincing evidence that LHF
has committed an improper willful act.

The filing of a complaint, in and of itself, is generally not enough to support the second,

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4 willful-act element of an abuse-of-process claim. 48 The alleged improper act must be so lacking
5 in justification that it loses its legitimate function as a reasonably justifiable litigation
6 procedure. 49
The bulk of Kabala’s abuse-of-process claim relies on his allegation that LHF threatens

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8 to file suit for the sole purpose of coercing settlements. Even if this is true, it’s not an improper
9 act for abuse-of-process purposes if there is a legal basis to support the claim. And Kabala has
10 not shown that LHF had no justifiable basis for commencing this case against him. Because
11 Kabala cannot show by clear and convincing evidence a probability of success on his abuse-of12 process claim, I grant LHF’s special motion to dismiss it. I do not reach LHF’s litigation13 privilege defense.
14

Conclusion

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Accordingly, IT IS HEREBY ORDERED that LHF’s motion to dismiss Kabala’s

16 counterclaims [ECF No. 120] is GRANTED in part, and LHF’s special motion under NRS
17 41.660 to dismiss Kabala’s abuse-of-process counterclaim [ECF No. 136] is GRANTED. Both
18 of Kabala’s counterclaims are DISMISSED with prejudice. Counsel for LHF may file a
19 separate application for fees and costs under NRS 41.670 that complies with Local Rule 54-14,
20 and I will rule on it in the ordinary course.
IT IS FURTHER ORDERED that LHF’s motion to voluntarily dismiss with prejudice its

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22 claims against Kabala [ECF No. 174] is GRANTED.
IT IS FURTHER ORDERED that all other pending motions [ECF Nos. 175, 178] are

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24 DENIED as moot.
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48

Abbott, 718 F. Supp. at 834 (citing Laxalt v. McClatchy, 622 F. Supp. 737, 752 (D. Nev.
1985); Ging v. Showtime Entertainment, Inc., 570 F. Supp. 1080, 1083 (D. Nev. 1983)).
27
49
Momot v. Mastro, 2010 WL 2696635, at *4 (D. Nev. July 6, 2010).
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The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE

2 THIS CASE.
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Dated: August 23, 2018
_______________________________
U.S. District Judge Jennifer A. Dorsey

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