Missed deadline potentially costly for Righthaven
Righthaven LLC watched thousands of dollars in legal work potentially go down the drain Friday when a Las Vegas judge refused to revive one of its copyright lawsuits — a suit dismissed because Righthaven was tardy by one day with a legal filing.
Righthaven has filed 275 infringement lawsuits since March 2010, but lately has been dormant while it waits for judges to rule on whether it has the right to sue under a revised lawsuit contract with the owner of the Las Vegas Review-Journal.
Four Nevada judges so far have thrown out seven of its lawsuits based on lack of standing under its early versions of the lawsuit contract. Additional dismissals are possible because of problems with the lawsuit contract for Righthaven’s Denver Post lawsuits.
U.S. District Judge James Mahan, in the meantime, on Friday denied Righthaven’s emergency request that he reconsider his July 22 order dismissing a Righthaven lawsuit against Garry Newman.
Newman is a resident of Great Britain and is associated with facepunch.com.
In dismissing the suit over an alleged infringement of an R-J Vdara hotel "death ray" story, Mahan wrote in his July 22 ruling that Righthaven had failed to respond by the July 15 deadline to Newman’s dismissal motion.
In that dismissal motion, attorneys for Newman said the U.S. court lacked jurisdiction over the British man as his website is not targeted towards Nevadans and that the post at issue was made not by Newman but by a user of his website.
They also said that Righthaven didn’t send a takedown letter prior to filing suit and that since it uses copyrights only to profit from lawsuits, "Righthaven cannot claim with a straight face that it has been harmed."
In responding to Mahan’s July 22 dismissal order, Righthaven said it had filed an amended complaint prior to Mahan dismissing the suit.
But Mahan, in his order Friday, wrote that Righthaven’s filing of the amended complaint on July 16 — one day late — meant "plaintiffs failed to file a timely response to defendant’s motion to dismiss and this court correctly granted the motion accordingly."
Clearly, Mahan chose not to give Righthaven a break.
Mahan’s order said he had weighed factors such as "the public’s interest in expeditious resolution of litigation," "the court’s need to manage its docket" and "the risk of prejudice to the defendants" against "the public policy favoring disposition of cases on their merits" and "the availability of less drastic sanctions."
Mahan also appeared to have disregarded, or didn't buy, Righthaven atttorney Shawn Mangano's explanation that he had filed the amended complaint on July 15, meeting the deadline, but that the court docketing system had incorrectly listed the document as being filed July 16.
The dismissal was without prejudice, meaning Righthaven can sue Newman again over the same alleged infringement if it chooses to do so.
Through Friday, the case had grown to 34 docket entries after attorneys for Righthaven filed the amended complaint; and Righthaven and Newman then filed brief after brief for and against dismissal.
Attorneys for Newman had argued there was an additional reason that the suit against their client should not be reinstated.
They wrote in a brief that the amended complaint — adding Facepunch Studios Ltd. as a party — was improper as it was really a "supplemental pleading" that required approval of Mahan to be filed as well as notice to Newman.
They said that's because it was largely based on new transactions that took place after the filing of the original lawsuit, mainly Righthaven amending for the second time its R-J lawsuit contract in hopes of gaining standing to sue.
Assertions by Righthaven that its amended complaint was a response to Newman's motion to dismiss were "misleading," charged attorneys for Newman.
Mahan didn't address these charges in his order Friday.
Newman is represented in the litigation by attorneys with the law firms Bone McAllester Norton PLLC in Nashville and Brownstein Hyatt Farber Schreck in Las Vegas.
As there's no indication Facepunch Studios Ltd. has been served with the amended complaint and Mahan refusing to reinstate Newman as a defendant, the entire lawsuit appears to be dead in the water to Righthaven's detriment.
Mahan has been no fan of Righthaven’s no-warning lawsuits, dismissing one involving the posting of an entire R-J story without authorization on fair use grounds, dismissing another for lack of standing under the original R-J lawsuit contract and most recently expressing skepticism about Righthaven’s right to sue under its amended R-J lawsuit agreement.
Righthaven, in the meantime, missed at least two more deadlines last week, though it’s unknown if that was deliberate or an oversight.
On Sept. 7, Righthaven and defendant Richard Rawlings of the United States Marijuana Party were ordered to file by Wednesday a report advising the court on the status of a settlement they had reached.
Under that settlement, the defendants had agreed to pay $1,000 to Righthaven at the rate of $100 per month.
No report was filed. That’s another Mahan case, though through Friday Mahan hadn’t commented on the missing report.
And in a case presided over by U.S. District Judge Edward Reed Jr., a response was due Friday to a motion for dismissal with prejudice by Greg Stocks and his Law Med Blog.
This is the case where Stocks has accused Righthaven of lying to the court in saying it couldn’t serve Stocks because he couldn’t be located — when in fact a summons filed with the court by Righthaven, but never executed, includes Stocks’ correct address.
This caused Stocks to comment Friday: "We did not think they would risk filing one (a response) since the only reason to would be to oppose our motion on the basis that our allegations of their multitude of lies before the court was false. In other words, they would have to lie again to the court."
A request for comment on the missed deadlines was placed with Righthaven.
The company did meet a deadline last week to file a status report in its lawsuit against Ryan Burrage.
In that report, Righthaven asked U.S. District Judge Gloria Navarro to put the Burrage case on hold until Navarro rules on whether Righthaven has standing to sue the Virginia Citizens Defense League.
Navarro is among the Nevada judges handling Righthaven cases who has yet to rule on whether Righthaven has standing under its amended R-J lawsuit contract.
In the meantime, while Righthaven and defendants wait on rulings on the standing issue, U.S. District Judge Philip Pro in Las Vegas has yet to rule on a flurry of motions in Righthaven’s unsuccessful lawsuit against Kentucky message board poster Wayne Hoehn.
Those motions began with Righthaven asking that Pro stay his order that Righthaven pay Hoehn’s $34,045 in legal fees by Sept. 14.
After Pro didn't act on the request and Righthaven didn’t pay the fees by the deadline, Hoehn’s attorneys asked that a receiver be appointed to run Righthaven and that Righthaven be sanctioned.
Besides Pro not ruling on the receiver request, Pro and the court clerk as of Friday had not filed anything in response to a Sept. 18 request by Hoehn’s attorneys that a writ of execution be issued authorizing the U.S. Marshals Service to seize Righthaven’s bank accounts and property "for levy, lien, auction or other treatment appropriate for satisfaction of Hoehn’s judgment."