UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

Transcription

1 0 0 Collette C. Leland, WSBA No. 0 WINSTON & CASHATT, LAWYERS, a Professional Service Corporation 0 W. Riverside, Ste. 00 Spokane, WA 0 Telephone: (0) - Attorneys for Maureen C. VanderMay and The VanderMay Law Firm ELF-MAN, LLC, vs. RYAN LAMBERSON, I. INTRODUCTION UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON, No. :-CV-00-TOR ATTORNEY VANDERMAY S OPPOSITION TO DEFENDANT S MOTIONS FOR RULE SANCTIONS AND SANCTIONS PURSUANT TO U.S.C. Attorney Maureen VanderMay joins in Plaintiff Elf-Man, LLC s (Elf-Man) Opposition to Defendant Ryan Lamberson s (Lamberson) Motion for Rule Sanctions and Motion for Sanctions Pursuant to U.S.C. (Plaintiff s Opposition) and submits this Opposition to Defendant s Motions for Rule Sanctions and Sanctions Pursuant to U.S.C.. Ms. VanderMay is a party in interest in this matter because PAGE

2 0 0 Lamberson seeks sanctions against Ms. VanderMay. DeLuca v. Long Island Lighting Co., Inc., F.d, (th Cir. ). Lamberson s motions for sanctions should be denied because Lamberson has failed to satisfy the procedural and substantive requirements of Rule and has failed to show that it is Ms. VanderMay who has unreasonably and vexatiously multiplied the proceedings in this matter. II. FACTUAL AND PROCEDURAL BACKGROUND Ms. VanderMay incorporates the statement of facts included in Plaintiff s Opposition to Defendant s Post-Dismissal Motions and its supporting declarations and exhibits. III. AUTHORITY Sanctions under Rule,, and this court s inherent powers are extraordinary remedies that are to be exercised with extreme caution. In re Keegan Mgmt. Co., Sec. Litig., F.d, (th Cir. ). [S]anctions should be reserved for the rare and exceptional case where the action is clearly frivolous, legally unreasonable or without legal foundation, or brought for an improper purpose. Primus Auto. Fin. Servs., Inc. v. Batarse, F.d, (th Cir. ) (quoting Operating Engineers Pension Trust v. A-C Co., F.d, (th Cir. )). This is not that rare case. Sanctions are imposed to deter frivolous pleadings and unnecessary filings and tactics. Fed. R. Civ. P. advisory committee notes; Calop Bus. Sys., Inc. v. City of Los PAGE

3 0 0 Angeles, F. Supp. d, 0- (C.D. Cal. 0). Here, Lamberson served a terse motion as a placeholder for future sanctions, proceeded to create facts through a flurry of unnecessary and unreasonable correspondence and filings, and finally filed a motion for sanctions nine months later, after the matter was dismissed. Such conduct merely seeks to use the sanctioning power of the court as a fee-shifting device and not as a deterrent. Lamberson has failed to meet his burden of establishing sanctionable conduct by Ms. VanderMay. This Court therefore should deny Lamberson s Motion for Rule Sanctions and Motion for Sanctions Pursuant to U.S.C. and enter an order awarding Ms. VanderMay her reasonable expenses to be determined by submission of fee affidavit at future date. Fed. R. Civ. P. (c)(); U.S.C.. A. Lamberson s Motion for Rule Sanctions (Rule Motion) must be dismissed because Lamberson did not meet the requirements of Rule (c)() when he served Ms. VanderMay with a placeholder motion on October, 0 (October Notice). Rule includes strict procedural requirements movants must meet before filing a motion for sanctions. Radcliffe v. Rainbow Const. Co., F.d, - (th Cir. 00). The movant must serve a filing-ready motion on the non-movant and then allow the non-movant at least days to retract the pleading at issue before filing. Id. at - (citing Fed. R. Civ. P. (c)()(a)); Truesdell v. Southern California Permanente Medical Group, F.d, (th Cir. 00). PAGE

4 0 0 Ninth Circuit case law requires notice through a formal motion that includes the actual allegations the moving party intends to rely upon. The motion served on the nonmovant must provide sufficient, advance notice of exactly which conduct was alleged to be sanctionable in order to allow the non-movant to cure. Foster v. Wilson, 0 F.d 0, 0 (th Cir. 00) (emphasis added); see also, Truesdell, F.d at (trial court dismissing complaint, but allowing plaintiff opportunity to file amended pleading in order to address defects alleged in defendant s Rule motion). Anything less than actual service of the motion with a description of the specific conduct that allegedly violates Rule (b) is insufficient. Radcliffe, F.d at (emphasis added). In Barber v. Miller, the Ninth Circuit reversed the order for sanctions, holding the requirements of Rule (c) were violated because the defendant served the motion for sanctions on the same day it was filed, and after the complaint had been dismissed. F.d 0, 0 (th Cir. ). Although the defendant had given the plaintiff s counsel multiple warnings about the deficiencies of the complaint through correspondence, [t]hose warnings were not motions, however, and the Rule requires service of a motion. Id. The Barber court further held that a motion served after the complaint had been dismissed deprived opposing counsel of any opportunity to take advantage of the safe harbor provision. Id. A party may not wait until after the dismissal of the plaintiff s claims to move for sanctions under Rule. Id. at. PAGE

5 0 0 Relying on Barber, Truesdell, the Advisory Committee notes, and a ruling by the District of Nevada in a related case, the District of Idaho denied the plaintiff s motion for Rule sanctions because plaintiff had failed to attach supporting declarations to the motion served upon the defendant. MetLife Bank, N.A. v. Badostain, 00 WL, at *- (D. Idaho, Dec. 0, 00) (Unpublished). The MetLife court found the defendant s failure to attach declarations referenced in the motion served on defendants, did not comply with Rule (c)() because without its supporting declarations, the motion could not be considered filing-ready. Id. at*. Just as had the Barber court, the District Courts of Nevada and Idaho concluded failure to strictly comply with the service requirements denied the non-movant the full benefit of the safe harbor provision. Id. Although Lamberson claims to have satisfied the safe-harbor provision, this is not the case. ECF No. 0 at. Lamberson relies upon a motion attached to the Lynch Rule Declaration (ECF No. ) as part of Exhibit A and purported to have been served on Ms. VanderMay on October, 0 (October Notice). (ECF No. - at 0-) The October Notice identifies no specific conduct alleged to violate Rule (b) and differs markedly from the Rule Motion filed with this Court. Compare ECF No. - at 0- with ECF No. 0. The October Notice does not describe the specific conduct that allegedly violates Rule (b). ECF No. - at 0-. PAGE

6 0 0 Although the October Notice purports to be supported by a memorandum; declaration of Lamberson; declaration of Lynch; and an order, none were provided. ECF No. - at 0; Dec. of M. VanderMay, ECF. None of the specific allegations in the Rule Motion were raised in the October Notice relied upon to satisfy Rule (c)(). Indeed, many of the events referenced in the Rule Motion and subsequent supporting declaration by Mr. Lynch occurred after the October Notice was served or in separate litigation. See ECF No. 0 at, -; ECF No. at -, 0-, -. By failing to serve Ms. VanderMay with a file-ready motion, Lamberson denied Ms. VanderMay and her client the benefit of the safe harbor provision. Lamberson likewise falls afoul of Barber s holding by waiting until after Elf-Man had already dismissed its claims to serve and bring a motion for sanctions. F.d at ; Retail Flooring Dealers of America, Inc. v. Beaulieu of America, LLC, F.d, (th Cir. 00). Because Lamberson has failed to meet the strict requirements of Rule (c)() and has thwarted the purpose of those requirements, his Rule Motion must be dismissed. B. Even if Lamberson had satisfied the procedural requirements, his attempt to create facts to support an eventual Rule Motion has failed to establish a violation of Rule (b). Even if the Rule Motion were not procedurally barred, Lamberson fails to meet his burden of proving the Amended Complaint was both baseless and made without a PAGE

7 0 0 reasonable and competent inquiry. In re Keegan Mgmt. Co., Sec. Litig., F.d, (th Cir. ). Some plausible basis (even a weak one) is sufficient to clear Rule s bar against frivolous pleadings. United Nat. Ins. Co. v. R&D Latex Corp., F.d 0, (th Cir. 00). Lamberson complains that Elf-Man: () attached no copyright certificate; () named no witnesses within the complaint; and () named Lamberson based upon Comcast s link of the offending ISP address to Lamberson s Comcast account. ECF No. 0 at. An assertion of subject matter jurisdiction is not baseless unless it completely lacks factual foundation. Montrose Chemical Corp. of Cal. v. American Motorists Ins. Co., F.d, (th Cir. ). Lamberson does not claim no copyright certificate exists, only that it was not attached to the Amended Complaint. The witnesses of which Lamberson complains are identified within Elf-Man s initial disclosures as Lamberson s counsel concedes. ECF No. - at ; see also, Dec. of D. Lowe, ECF, Ex. A. Mr. Lamberson presents no explanation or evidence explaining why evidence regarding his downloading activity provides no plausible basis for a claim of copyright infringement. But see Decs. of Macek ECF, Paige ECF 0, Patzer ECF. Although Lamberson alleges Ms. VanderMay proceeded in the face of objective evidence of his innocence, Lamberson relies solely upon counsel s representations to Ms. VanderMay in settlement letters. See ECF No. - at -,,, (attaching PAGE

8 0 0 settlement letters including counsel s representations regarding Lamberson s innocence). These representations are inadmissible. Fed. R. Evid. 0, 0. Counsels correspondence shows Lamberson attempted to create facts and establish his own minimum objective standard for Ms. VanderMay s investigation. ECF No. - at -,,. Lamberson provides no authority establishing that a limited interview of a defendant and examination of a computer proffered by the defendant are the minimum objective standard of a reasonable investigation. ECF No. 0. Nor does Lamberson explain how a defendant s self-serving statements and proffers nullify the results of a party s own investigation linking the offending activity to the defendant s IP address. See ECF No. at -,,, ; ECF No. -, - ; ECF No. ; ECF No. ; ECF No. 0. Lamberson s own counsel s correspondence reveals the purpose of these repeated demands was to create facts for the purpose of alleging a Rule violation at a later date. See ECF No. - at 0 ( we expect to use our correspondence trail to support our Rule motion, about which you were forewarned in our first letter ); ECF No. --,. Lamberson s own demands cannot establish the standard for a reasonable investigation. PAGE

9 0 0 Because Lamberson has presented no evidence establishing Elf-Man s claims were baseless and fails to establish the investigation which revealed his internet activity was inadequate, Lamberson s Rule Motion must fail. C. Lamberson s Motion for Sanctions must be denied because he has failed to present evidence of subjective bad faith. Section authorizes sanctions only for the multiplication of proceedings. In re Keegan, F.d at. Sanctions require a finding of recklessness or bad faith. B.K.B. v. Maui Police Dep t., F.d 0, 0 (th Cir. 00). Recklessness is sanctionable under only when combined with an additional factor, such as frivolousness, harassment, or improper purpose. Oliver v. In-N-Out Burgers, F. Supp. d, (0); Calop, F. Supp. d at 0. Detailed factual findings are required to support an order of sanctions under. Burgos v. Murphy, F. Supp., (S.D. N.Y. ). An attorney s objection to demands of the opposing party cannot be sanctionable if the objection has a basis in law. Calop, F. Supp. d at 0-0. In essence, Lamberson argues proceedings were multiplied because the case would have been concluded if only Ms. VanderMay had acceded to his demands. Lamberson s alleged multiplications are Ms. VanderMay s objections to Lamberson s demands that she identify witnesses in the complaint instead of waiting for initial disclosures, engage in PAGE

10 0 0 discovery before the parties Rule (f) conference, produce documents as part of Elf- Man s initial disclosures, immediately produce copies rather than making documents available for inspection, provide an expert report before such report was due under the Court s scheduling order, produce witnesses for deposition who resided outside the limits of Rule (c)(), produce explanations consistent with Lamberson s assumptions regarding witnesses and parties at interest. ECF No. at -; ECF No.,, 0,. Lamberson fails to explain how Ms. VanderMay s decisions to prosecute Elf- Man s claims in a manner consistent with the civil rules constitute recklessness, frivolousness, harassment, or improper purpose. Lamberson s theories regarding the alleged roles of Darren M. Griffin, Crystal Bay Corporation, and APMC are likewise insufficient to support a finding of bad faith or recklessness. Oliver, F. Supp. d at 0; RPC.; ECF No. at, -. To the contrary, the record suggests proceedings were multiplied as a result of Lamberson s own theories and strategies. ECF No.,, -; ECF No., -; ECF No. 0-, -; ECF No.,. Lamberson has failed to establish recklessness or bad faith and has failed to establish proceedings were multiplied as a result of Ms. VanderMay s conduct. His Motion for Sanctions Pursuant to U.S.C. should be denied. PAGE 0

11 0 0 IV. CONCLUSION It is clear from even Lamberson s own supporting declarations that Lamberson adopted a strategy of creating a narrative through a barrage of correspondence and filings to support an ultimate motion for sanctions and fees. The admissible evidence shows, however, that counsel merely had different views of this case and how it should be conducted. This is not sanctionable. Because Lamberson has failed to meet his burden, Lamberson s Rule Motion and Motion for Sanctions Pursuant to U.S.C. must be denied. DATED this th day of August, 0. s/collette C. Leland, WSBA No. 0 WINSTON & CASHATT, LAWYERS Attorneys for Maureen C. VanderMay and The VanderMay Law Firm 0 W. Riverside, Ste. 00 Spokane, WA 0 (0) - Facsimile: (0) - Address: ccl@winstoncashatt.com PAGE

12 0 0 I hereby certify that on August, 0, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the following: David A. Lowe lowe@lowegrahamjones.com J. Christopher Lynch chris@leehayes.com s/collette C. Leland, WSBA No. 0 WINSTON & CASHATT, LAWYERS Attorneys for Maureen C. VanderMay and The VanderMay Law Firm 0 W. Riverside, Ste. 00 Spokane, WA 0 (0) - Facsimile: (0) - Address: ccl@winstoncashatt.com PAGE