Opinion
CASE NO.: C-10-1282 (MMC)(DMR)
10-20-2011
IO GROUP, INC., a California corporation, CHANNEL ONE RELEASING, Inc., a California corporation and LIBERTY MEDIA HOLDINGS, LLC., a California corporation, Plaintiffs, v. GLBT, Ltd., a British limited company, MASH and NEW, Ltd., a British limited company, PORT 80, Ltd., a company of unknown origin or structure, STEVEN JOHN COMPTON, an individual living in the United Kingdom, and DAVID GRAHAM COMPTON, an individual living in the United Kingdom. Defendants.
GILL SPERLEIN (172887) THE LAW OFFICE OF GILL SPERLEIN MARC JOHN RANDAZA (269535) General Counsel Attorneys for Plaintiffs
GILL SPERLEIN (172887)
THE LAW OFFICE OF GILL SPERLEIN
MARC JOHN RANDAZA (269535)
General Counsel
Attorneys for Plaintiffs
PLAINTIFF'S SEPARATE CASE
MANAGEMENT CONFERENCE
STATEMENT AND REQUEST FOR
LEAVE TO FILE MOTION FOR
SUMMARY JUDGMENT AND TO
CONTINUE TRIAL DATES; AND
[PROPOSED] ORDER
Date: October 21, 2011
Time: 10:30 a.m.
Courtroom: Telephonic
Trial Date: November 28, 2011
On September 20, 2011, Defendants counsel filed a notice that Defendants instructed him "to participate no further in this proceeding." [Docket No. 113] In response to a request to meet and confer, Defense counsel Jonathan Capp stated that he intended to file a motion to withdraw, but no such motion has been forthcoming. See Exhibit A. Defendants have not filed any documents since September 20th. During that time they have failed to oppose Plaintiff's Motion for an Order of Contempt, failed to follow the Court's order to transfer domain name registrations, and failed to comply with the Magistrate Ryu's Order to produce additional discovery. Defendants have apparently thrown in the towel.
Accordingly, and for the reasons stated below, Plaintiffs request that the Court continue the trial dates and grant Plaintiffs leave to file their Motion for Summary Judgment.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffs filed a Complaint for copyright infringement and other claims. During the discovery process, Plaintiffs learned that Defendants were both withholding and destroying evidence. Accordingly, Plaintiffs filed a Motion for Terminating Sanctions. [Docket No. 63] On September 22, 2011, Judge Ryu conducted a hearing on Plaintiffs' Motion and today issued a written order imposing adverse inference sanctions in lieu of entering default. Judge Ryu also ruled on several outstanding discovery orders. [Order Granting in Part and Denying in Part Plaintiffs' Motion for Sanctions for Spoliation of Evidence, Docket No. 124, 12:4-13:2]
In the meantime, Defendants moved all their websites from .com domains, which are controlled from within the United States, to .eu domains, which are controlled from within Europe. Plaintiffs filed a motion for injunctive relief, which the Court granted in part. [Docket No. 103] The Court ordered Defendants to transfer the domain name registrations to a receiver. [Id.] Defendants ignored the order and Plaintiffs sought an order of contempt (Docket No. 108), which Defendants did not oppose. On October 12, 2011, this Court issued an order of contempt, directing Defendants to transfer the domains as previously ordered or suffer a $1,000 a day sanction until they do. [Docket 123] As of today, Defendants continue to ignore the Court's order.
On September 20, 2011, Defendants counsel filed a notice that Defendants instructed him "to participate no further in this proceeding." [Docket No. 113] Since that filing, Defendants have filed no further documents with the Court. In response to further inquiry, Mr. Capp would only say, "[i]n short, my clients have instructed me not to participate in any way in this litigation." See Exhibit A.
Trial is currently set for November 28, 2011. Fact discovery closed on June 30th and August 15th was the last day to file dispositive motions. However, significant discovery questions remained open until Magistrate Ryu issued her order today. Indeed, it would have been premature and prejudicial for Plaintiffs to bring a motion for summary judgment prior to obtaining either the withheld evidence or Judge Ryu's order imposing negative inference sanctions. Defendants and their counsel are no longer making themselves available for the purposes of meeting and conferring. However, at the hearing on Plaintiffs' Motion for Injunctive Relief, Mr. Capp joined with Plaintiffs in requesting that all case management dates be continued. At that time, the Court suggested waiting until Judge Ryu ruled on Plaintiffs' Motion for Terminating Sanctions.
As significant discovery questions have only now been resolved and given that Defendants no longer appear to be defending against Plaintiffs' claims, Plaintiffs respectfully request that the trial dates be continued, and that the Court grant Plaintiffs leave to file their Motion for Summary Judgment provided they file no later than November 28, 2011.
Respectfully submitted,
D. GILL SPERLEIN
The Law Office of D. Gill Sperlein
Attorneys for Plaintiffs
Marc Randazza
General Counsel
Liberty Media Holdings, LLC
Attorneys for Plaintiffs
[PROPOSED] ORDER
Having read and considered Plaintiff's Motion for Leave to File a Motion for Summary Judgment and Continue Trial Dates and finding good cause therefore, IT IS HERBY ORDERED that the current trial dates are taken off calendar and Plaintiffs have until November 28, 2011 to file their Motion for Summary Judgment.
IT IS FURTHER ORDERED that the Case Management Conference is continued from October 21, 2011 to February 10, 2012. A Joint Case Management Statement shall be filed no later than February 3, 2012.
MAXINE CHESNEY
UNITED STATES DISTICT JUDGE