IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Transcription

1 Case :-cv-0-gms Document Filed 0/0/ Page of Steven James Goodhue (#0) Law Offices of Steven James Goodhue East Shea Blvd., Suite 00 Scottsdale, AZ 0 Telephone: (0) -00 Facsimile: (0) -0 sjg@sjgoodlaw.com Attorney for Plaintiff AF Holdings, L.L.C. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 0 AF HOLDINGS, L.L.C., a St. Kitts and Nevis limited liability company, Plaintiff, v. DAVID HARRIS, Defendant. CASE NO.: :-CV-0-PHX-GMS PLAINTIFF S FORTHWITH MOTION FOR SANCTIONS AGAINST DEFENDANT DAVID HARRIS 0 Plaintiff AF Holdings, L.L.C. ( Plaintiff ), through its undersigned counsel, hereby moves this Court for a forthwith Order imposing Sanctions of Defendant David Harris ( Defendant ), and as grounds therefore, states as follows: INTRODUCTION Throughout the course of the instant action, Defendant conduct has far exceeded the scope of the considerable leeway often afforded to pro se defendants. Plaintiff files the instant Motion for Sanctions in order to rectify Defendant s unbridled and pervasive misconduct. Defendant established from the outset that he would not comply with his duties and obligations under the law. On November 0, 0, the Court issued an Order setting a Rule Case

2 Case :-cv-0-gms Document Filed 0/0/ Page of 0 0 Management Conference. (ECF No..) Pursuant to that order, the parties were to meet and confer on or before December, 0, to develop a Case Management Report, and file their Joint Case Management Report on or before January, 0, in anticipation of the Rule Case Management Conference on January, 0. On November, 0, Plaintiff s counsel wrote to Defendant and proposed that the parties schedule the Meet & Confer conference the week of December, 0; and exchange Rule (a) Initial Disclosures on that date, if not before. (See ECF No., Exhibit A to Plaintiff s Motion for Order to Show Cause). On November, 0, Defendant sent an to Plaintiff s counsel stating in part, Your proposal is thoroughly rejected. (See ECF No., Exhibit B to Plaintiff s Motion for Order to Show Cause). Following the filing of Plaintiff s Motion for Order to Show Cause (ECF ), this Court issued its Order of December, 0 (ECF No. ), directing the parties to meet in good faith and hold a case management conference the week of December, 0 as required by Federal Rules of Civil Procedure (f)(). The Court was clearly optimistic that Mr. Harris would remedy his conduct and comply with his legal obligations. Mr. Harris, however, yet again had other plans. Immediately following receipt of the Court s December, 0 Order, on December, 0, Plaintiff s counsel wrote to Defendant offering the afternoon of December, 0, or the morning of December, 0, for the meet and confer conference. A true and correct copy of Plaintiff s counsel s December, 0 letter is attached hereto as Exhibit A. (See Exhibit A). By of December, 0, Mr. Harris initially demonstrated a willingness to meet at :00 pm on December, 0, at Plaintiff s counsel s office for the meet and confer. A true and correct copy of Defendant s December, 0 is attached hereto as Exhibit B. (See Exhibit B.) On December, 0, Plaintiff s counsel provided Defendant with an outline of the Joint Case Management Report and Proposed Case Management Order, in anticipation of our (f) meet and confer conference on December, 0, at :00 pm at [Plaintiff s counsel s] office. A true

3 Case :-cv-0-gms Document Filed 0/0/ Page of 0 0 and correct copy of Plaintiff s December, 0 letter is attached hereto as Exhibit C. (See Exhibit C.) On December, 0, Defendant advised Plaintiff s counsel by that your case management report is absurd, and that he would not be attending the scheduled meet and confer, stating in part that until the pending Motions before the court is (sic) ruled upon our meeting for Monday December, 0 is indefinitely postponed. A true and correct copy of Defendant s December, 0 is attached hereto as Exhibit D. (See Exhibit D.) On December, 0, Plaintiff filed its proposed Case Management Order (ECF ) without the cooperation or participation of Defendant in compiling the Case Management Report. On January, 0, Defendant sent the following to Plaintiff s counsel: Subject: :-cv-0-gms From: troll.assassins@cyber-wizard.com Date: Wed, January 0, 0 : pm To: "Mr. Goodhue" <sjg@sjgoodlaw.com> Mr. Goodhue, The Arizona State Bar Association requires that before filing a complaint for disciplinary action against a lawyer for unprofessional conduct the I discuss the problem with him. Consider this that discussion. You are guilty of unprofessional conduct as defined by ARS-0()(b), unless you can supply proper credentials. Please return by January, 0, State of Arizona, Department of Public Safety private investigator license information for Peter Hansmeier and/or the entity Forensics. If you fail to comply with this request, then I will file a complaint against you for unprofessional conduct with the Arizona State Bar Association. Thank you... David. A true and correct copy of Defendant s January, 0 is attached hereto as Exhibit E. (See Exhibit E.) The multitude of abuses of the judicial system engaged in by Defendant is not new to this Court; as detailed in Plaintiff s Motion for Order to Show Cause, Defendant has engaged in reprehensible conduct throughout the pendency of this litigation. (See, generally, Plaintiff s Motion for Order to Show Cause). The undersigned truly hoped that the Court s directive regarding the meet and confer would finally bring this action on track, but it appears that Defendant regards the Court s directives as mere suggestions, and not as mandates to be heeded. One does not need a law

4 Case :-cv-0-gms Document Filed 0/0/ Page of degree to be able to show up to a certain place at a certain time. Defendant knew the Court wanted him to meet and confer with Plaintiff s counsel, Defendant knew when and where he had to be present, and Defendant even agreed, at least initially, to be present. But just one day before the scheduled meet and confer, Defendant unjustifiably and unilaterally decided that the meet and confer would be indefinitely postponed. For the record, Defendant s dislike of Plaintiff s case 0 0 management report is not an acceptable ground for refusing to meet and confer; indeed, the very purpose of such reports is to allow both sides to offer their own input. Plaintiff s counsel was prepared to meet with Defendant and cooperatively prepare the report, but Defendant simply refused. This Court now faces the prospect of deciding whether its Orders are mandates or mere suggestions; if they are the former, then Defendant s willful disregard of the Court s Orders merit sanctions. LEGAL STANDARD Federal courts have the inherent power to punish persons who abuse the judicial process. The inherent power of the court is an "implied power squeezed from the need to make the courts function." Chambers v. NASCO, Inc., 0 U.S., () (finding that, despite Rule and U.S.C. both being potentially applicable, the court was not required to resort to using them when the inherent power of court was best suited to the facts) Chambers, 0 U.S., () (quoting NASCO, Inc. v. Calcasieu Television & Radio, Inc., F.d, 0 (th Cir. 0)). A district court may impose sanctions if it "specifically finds bad faith or conduct tantamount to bad faith." Fink v. Gomez, F.d, (th Cir. 00). "Sanctions are available for a variety of types of willful actions, including recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose." Id. In Fink, the Ninth Circuit held that "an attorney's reckless misstatements of law and fact, when coupled with an improper purpose... are sanctionable under a court's inherent power." Id.

5 Case :-cv-0-gms Document Filed 0/0/ Page of ARGUMENT I. DEFENDANT HAS ABUSED THE JUDICIAL PROCESS IN BAD FAITH Throughout this action, and especially in light his latest threats, Defendant has acted, and still acts, recklessly in misstating (and violating) the law in an attempt to harass Plaintiff s attorney in the hope that he will simply drop his claims against Defendant. In the meantime, his amateurish actions are wasting everyone s time and resources. This conduct is clearly sanctionable. Id. While Plaintiff notes Defendant s status as a pro se party, Plaintiff also notes that Defendant cannot lean on that supposed crutch to immunize him from his basic duties in this case. Even though Defendant is pro se, he is clearly not illiterate, and as such, he is not excused from complying with court orders. Nor 0 0 is Defendant a minor or incompetent; and as such, he is not excused from exercising basic decorum when interacting with opposing counsel and the Court. Defendant s conduct amounts to a simple unwillingness to exercise self-control. Defendant knew he had to meet and confer with Plaintiff s counsel, and he even agreed to a date and time for the meet and confer, but once he read Plaintiff s case management statement draft which, of course, is designed to advocate for Plaintiff s position Defendant decided he would have no part in complying with the Court s directive. Plaintiff does not feel it should be forced to bear the costs of Defendant s lack of self control and impulsivity, but that is exactly what Plaintiff has had to do thus far; having to draft a Motion for Order to Show Cause to attempt to compel Defendant to meet and confer, and then, upon Defendant s second refusal to meet and confer and his most recent threat, to draft the instant Motion for Sanctions. The alternative would be for Plaintiff to do nothing, but this would not do justice to anyone. Plaintiff hopes to bring to the Court s attention that Defendant s conduct merits a stern reprimand from the Court, not only for the benefit of the Court and of Plaintiff, but that of Defendant This Court s Order of November, 0, granted Defendant s Motion for Reconsideration (ECF ) giving Defendant CM/ECF privileges. In this Order, the Court specifically stated in part, Defendant is directed to familiarize himself with the Federal Rules of Civil Procedure, Arizona Local Rules.

6 Case :-cv-0-gms Document Filed 0/0/ Page of 0 0 as well. Defendant did himself a disservice by not participating in the meet and confer and not having his views included in the completed document. Though the Court may be inclined to show Defendant leniency because of his pro se status, leniency has already proved ineffective, and in doing so simply makes this action more costly and protracted for all involved: for Plaintiff, for the Court, and even for Defendant. This includes Defendant s colorful filings and abusive language (See, generally, Plaintiff s Motion for Order to Show Cause) (describing the most egregious examples of Defendant s conduct); such conduct is demonstrative of a general disregard of the fact that he is a litigant in Federal court. Now, instead of following the Court s orders and meeting and conferring with Plaintiff s counsel, Defendant has continued his haphazard abuse of the judicial process by threatening Plaintiff s counsel with a bar complaint unless he can provide an Arizona Private Investigator license for Peter Hansmeier. (See Exhibit E). Defendant cites A.R.S. -0 ()(b) in support of his proposition. The cited statute states that Aiding or abetting a person who is not licensed pursuant to this chapter in representing that person as a private investigator in this state constitutes unprofessional conduct. A.R.S. -0 () (b). Neither Plaintiff nor Plaintiff s counsel has ever represented, formally or otherwise, that Peter Hansmeier is a private investigator in the State of Arizona. It is clear that, though Defendant is not a lawyer, he had the ability to find this exact statute, and thus could have correctly interpreted it. The plain language of the law clears up any supposed issues. It is simply the case that he chose not to do so, because he does not take seriously his responsibilities as a litigant in Federal court. Rather, Defendant seems to believe that he can conduct himself in whatever way he pleases, and do so without any repercussions. Plaintiff submits that the time has come for the Court to assert its inherent authority and bring Mr. Harris in line, before he forces Plaintiff, the Court, and himself to incur further, unnecessary delays and costs. Defendant also filed his Motion for Security of Non-Resident Plaintiff on November 0, 0 (ECF ), which the Court has yet to rule on, but which is seen by Plaintiff as equally specious and harassing.

7 Case :-cv-0-gms Document Filed 0/0/ Page of II. SANCTIONS REQUESTED Plaintiff respectfully requests that the Court issue an Order requiring the following: () that Defendant comply with the Orders of this Court, the Federal Rules of Civil Procedure, and the District of Arizona Local Rules; () that Defendant conduct himself consistent with the rules of decorum incumbent upon litigants in Federal court; () that the Court impose sanctions, including reasonable attorney fees for the filing of Plaintiff s Motion for Order to Show Cause and Plaintiff s Motion for Sanctions (see Affidavit of Steven James Goodhue attached hereto as Exhibit F regarding the fees and costs spent on each effort); and () for such other relief as the Court deems just in the premises. 0 0 Dated this th day of January, 0 Law Offices of Steven James Goodhue By: _/s/ Steven James Goodhue Steven James Goodhue (#0) East Shea Blvd., Suite 00 Scottsdale, AZ 0 Attorney for Plaintiff AF Holdings, L.L.C.

8 Case :-cv-0-gms Document Filed 0/0/ Page of 0 I hereby certify that on January, 0, I electronically filed the foregoing with the Clerk of the Court for filing and uploading to the CM-ECF system which will send notifications of such filing to all parties of record. A COPY of the foregoing was mailed (or served via electronic notification if indicated by an * ) on January, 0, to: Honorable G. Murray Snow *(snow_chambers@azd.uscourts.gov) U.S. District Court Sandra Day O Connor Courthouse Suite 0 West Washington Street, SPC Phoenix, Arizona 00-0 David Harris* (troll.assassins@cyber-wizards.com) East Caballero Street, # Mesa Arizona 0 /s/ Steven James Goodhue 0

9 Case :-cv-0-gms Document - Filed 0/0/ Page of Steven James Goodhue East Shea Blvd Attorney at Law Suite 00 Admitted in CO, CA & AZ Scottsdale, Arizona sjg@sjgoodlaw.com December, 0 VIA ONLY: troll.assassins@cyber-wizards.com David Harris East Caballero Street, # Mesa Arizona 0 Re: AF Holdings, L.L.C. v David Harris Case No.: :-CV-0-PHX-GMS Dear Mr. Harris: Pursuant to the Court s Order of December, 0, I am able to meet with you the afternoon of December, 0 or the morning of December, 0 at my offices located at East Shea Blvd., Suite 00, Scottsdale, Arizona 0. Please confirm your attendance. Thank you for your attention to this matter. Very truly yours, /SJG Steven James Goodhue Colorado Office: 0 South Downing Street, Denver, Colorado

10 Case :-cv-0-gms Document - Filed 0/0/ Page of Original Message Subject: RE: AF Holdings, L.L.C. v. David Harris, Case No.; :-CV-0. From: troll.assassins@cyber-wizard.com Date: Tue, December 0, 0 : pm To: sjg@sjgoodlaw.com Mr. Goodhue, I will be at your office Monday December, at :00pm. I have one nonnegotiable demand, that Duffy attend. He is the one, I believe litigating this claim and he is the one that originally offered a 'reasonable settlement, in good faith' for just $,00.00 he would so generously let me off the hook of a $00, / $,0 for a total of $.. Let me know right a way if Duffy acts shy, so I have time to get leave to subpoena him... David.

11 Case :-cv-0-gms Document - Filed 0/0/ Page of Steven James Goodhue East Shea Blvd Attorney at Law Suite 00 Admitted in CO, CA & AZ Scottsdale, Arizona sjg@sjgoodlaw.com December, 0 VIA ONLY: troll.assassins@cyber-wizards.com David Harris East Caballero Street, # Mesa Arizona 0 Re: AF Holdings, L.L.C. v David Harris Case No.: :-CV-0-PHX-GMS Dear Mr. Harris: Enclosed please find an outline of the Joint Case Management Report and Proposed Case Management Order, in anticipation of our (f) meet and confer conference on December, 0, at :00 pm at my office. Thank you for your assistance in this matter. Very truly yours, /SJG Enclosure Steven James Goodhue Colorado Office: 0 South Downing Street, Denver, Colorado

12 Case :-cv-0-gms Document - Filed 0/0/ Page of Original Message Subject: -0 From: troll.assassins@cyber-wizard.com Date: Sat, December, 0 : pm To: "Mr. Goodhue" sjg@sjgoodlaw.com Mr. Goodhue, Sir, with all due respect, your case management report is absurd. Do you really think that I am going to sign a court document stating facts that are in dispute? I am not admitting that you have subject matter jurisdiction when I am disputing that very fact. Nor am I going to admit that I infringed on your clients copyright for two reasons:. I did not.. Your client does not own the copyright at the alleged time of infringement. You are hoping to acquire through discovery the means to legitimize this lawsuit, well I am not going to contribute to your fishing trip! Until the Pending Motions before the Court is ruled upon our meeting for Monday December, 0 is indefinitely postponed. Thank you... David.

13 Case :-cv-0-gms Document - Filed 0/0/ Page of Original Message Subject: :-cv-0-gms From: troll.assassins@cyber-wizard.com Date: Wed, January 0, 0 : pm To: "Mr. Goodhue" sjg@sjgoodlaw.com Mr. Goodhue, The Arizona State Bar Association requires that before filing a complaint for disciplinary action against a lawyer for unprofessional conduct the I discuss the problem with him. Consider this that discussion. You are guilty of unprofessional conduct as defined by ARS -0()(b), unless you can supply proper credentials. Please return by January, 0, State of Arizona, Department of Public Safety private investigator license information for Peter Hansmeier and/or the entity Forensics. If you fail to comply with this request, then I will file a complaint against you for unprofessional conduct with the Arizona State Bar Association. Thank you... David.

14 Case :-cv-0-gms Document - Filed 0/0/ Page of II Steven James Goodhue (#0) Law Offices of Steven James Goodhue East Shea Blvd., Suite 00 Scottsdale, AZ 0 II Telephone: (0) -00 Facsimile: (0) -0 II sjg!~{:sjgoodlaw.com Attorneyfor Plaintiff AF Holdings, L.L.C. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 0 II AF HOLDINGS, L.L.C., a St. Kitts and Nevis limited liability company, II V. Plaintiff, II DAVID HARRIS, II Defendant. CASE NO.: :-CV-0-PIIX-GMS AFFIVDAVIT OF STEVEN JAMES GOODHUE IN SUPPORT OF PLAINTIFF'S MOTION FOR SANCTIONS AGAINST DEFENDANT DAVID HARRIS I~I ~ II I, Steven James Goodhue, being duly sworn, states and avers as follows:. I am the attorney of record for the Plaintiff, AF Holdings, L.L.C., in the above II captioned matter.. I am a licensed attorney and in good standing in the states ofcolorado, California and 0 II Arizona, and have been practicing law for over 0 years. I am also admitted to practice before, and II in good standing with, the U.S. District Court, District ofcolorado, the U.S. District Court, Southern \ District of California, the U.S. District Court, District of Arizona, the U.S. Court of Appeals;. tb II Circuit, the U.S. Court ofappeals-0 th Circuit, and the U.S. Supreme Court.. My hourly rate is $0.00 per hour.

15 Case :-cv-0-gms Document - Filed 0/0/ Page of I. Based on my familiarity with the legal profession and with what attorneys with my II experience and background charge for similar services in similar cases, my hourly rate is within the II customarily charged fees in this jurisdiction and is reasonable.. This case involves a claim for copyright infringement under the United States II Copyright Act, with related clams for contributory infringement, civil conspiracy, and negligence II claims under the common law to combat the willful and intentional infringement of its creative II works. Plaintiff alleges that Defendant knowingly and illegally reproduced and distributed II Plaintiff's copyrighted property.. In the course of prosecuting this matter, Plaintiff' has had to respond to various acts of 0 II misconduct by Defendant which have required the filing of Plaintiff's Motion for Order to Show Cause LI II (ECF ) and the instant Motion for Sanctions.. In preparing the Motion for Order to Show Cause, and the Reply thereto, Plaintiff's counsel expended. hours. In preparing the Motion for Sanctions, Plaintiff's counsel expended. hours. Based on the hourly rate, Plaintiff's counsel's attorney's fees for the preparation of these II pleadings totaled $,0.00. David Harris.. I make this Affidavit in support of Plaintiff's Motion for Sanctions against Defendant "FURTHER THEAFFIANTSAYETHNAUGHT. Dated this th day ofjanuary, 0. 0 ~<>=- Steven James Goodhue

16 Case :-cv-0-gms Document - Filed 0/0/ Page of II STATE OF COLORADO ) ) ss II CITY AND COUNTY OF DENVER ) II Subscribed and sworn to before me this'#day ofjanuary 0 IhfYM(~.~ II Notary Public II My Commission Expires: CS-- -I~ (Seal or Stamp) lo l My Commission EXI)iros May. 0 l 0

17 Case :-cv-0-gms Document - Filed 0/0/ Page of IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 0 AF HOLDINGS, L.L.C., a St. Kitts and Nevis limited liability company, Plaintiff, v. DAVID HARRIS, Defendant. CASE NO.: :-CV-0-PHX-GMS ORDER RE PLAINTIFF S FORTHWITH MOTION FOR SANCTIONS AGAINST DEFENDANT DAVID HARRIS 0 This matter comes before the Court on Plaintiff s Forthwith Motion for Sanctions Against Defendant Harris, and the Court having reviewed Plaintiff s Motion, the relevant case law, the file and being fully advised in the premises: ORDERS, Plaintiff Motion for Sanctions is hereby GRANTED; FURTHER ORDERS, that Defendant is to comply with the Orders of this Court, the Federal Rules of Civil Procedure, and the District of Arizona Local Rules of this Court or face contempt; FURTHER ORDERS, that Defendant conduct himself consistent with the rules of decorum incumbent upon litigants in Federal court or face contempt; FUTHER ORDERS, that Plaintiff is awarded its attorney s fees and costs incurred in the filing of the Motion for Order to Show Cause and in the Motion for Sanctions, as set forth in its Affidavit of Attorney s fees set forth in Exhibit F.