Oppose the Nomination of Edward M. Chen to Federal Bench
yoyo
Please sign the petition below at
http://www.petitiononline.com/emc_bad/
To: U.S. Congress and President Obama
We write to you to register our serious concerns about Edward M.
Chen’s nomination to the U.S. federal court. Chen’s biased judicial
style has come to our attention through legal cases publicized on the
Internet. As tax payers who pay judges to do justice, We oppose his
nomination and confirmation.
Chen's ruling in the Netbula v. Symantec litigation shows his judicial
philosohpy. In 2006, Netbula, LLC, a small software company sued
Symantec Corporation for copyright infringement. Symantec made
numerous misrepresentations to the Court. Even the presiding judge had
found that Symantec “mischaracterize[d]” the record. However, when
Netbula requested a Court order to force Symantec to correct its court
filings, instead of upholding the integrity of the judicial process,
Chen denied Netbula's request and ordered Netbula to pay $20,000 to
Symantec. The following is but one example of how Chen distorts the
record.
On May 15, 2006, Netbula and Symantec held a confidential private
meeting. Netbula brought a stack of paper documents, and the parties
and attorneys discussed them. At the end of the meeting, Symantec
declined to take the Netbula documents. Then, it alleged in a Court
filing that “Symantec … provided the materials requested of them...
Netbula, on the other hand, did not provide any of the materials
requested of them.”
After Symantec refused to correct their misrepresentations, Netbula's
lawyer (a young black lady) filed a motion for Rule 11 sanctions.
Faced with indisputable evidence, Symantec finally admitted that
Netbula did bring some documents to the meeting.
Magistrate Chen heard the motion. After noting Netbula small and its
attorney a solo practitioner, he distorted the record and ordered
Netbula to pay $20,000.00 to Symantec. Chen wrote: “[Symantec’s]
statement was not misleading. Netbula had not produced all the
documents requested.”
To justify his ruling in favor of Symantec, Chen writes:
“The factual investigation [Symantec] needed to respond to [Netbula’s]
Rule 11 motion on the merits was not a task that could quickly be
accomplished. For example, a fair amount of time was reasonably
expended [by Symantec] to look into the history of events surrounding
the May 15, 2006, settlement meeting… the Court concludes that an
award of $20,000 [to Symantec] is reasonable.”
In fact, three Symantec attorneys had an email discussion on May 16,
2006 about the documents Netbula brought to the meeting the previous
day. Chen awarded Symantec attorneys for making a false statement that
was refuted by their own email.
The above is just one example of Chen’s contortionist jurisprudence.
For more details, please review misconduct complaint No. 07-89078
filed with the Ninth Circuit. The Netbula v. Symantec case information
can be found on the web site http://www.american-justice.org
Chen’s judicial philosohpy raises serious concerns on whether he can
be true to the oath of a judge -- to "do equal right to the poor and
to the rich."
For this reason, we request Your Honor not to appoint Chen to the
lifetime tenure of Article III Judge of the United States.
Sincerely,
The Undersigned
copyright
Title: We write to you to register
We write to you to register our serious concerns about Edward M. Chen抯
nomination to the U.S. federal court. Chen抯 biased judicial style has
come to our attention through legal cases publicized on the Internet.
As tax payers who pay judges to do justice, We oppose his nomination
and confirmation.
Chen's ruling in the Netbula v. Symantec litigation shows his judicial
philosohpy. In 2006, Netbula, LLC, a small software company sued
Symantec Corporation for copyright infringement. Symantec made
numerous misrepresentations to the Court. Even the presiding judge had
found that Symantec 搈ischaracterize[d]?the record. However, when
Netbula requested a Court order to force Symantec to correct its court
filings, instead of upholding the integrity of the judicial process,
Chen denied Netbula's request and ordered Netbula to pay $20,000 to
Symantec. The following is but one example of how Chen distorts the
record.
On May 15, 2006, Netbula and Symantec held a confidential private
meeting. Netbula brought a stack of paper documents, and the parties
and attorneys discussed them. At the end of the meeting, Symantec
declined to take the Netbula documents. Then, it alleged in a Court
filing that 揝ymantec ?provided the materials requested of them...
Netbula, on the other hand, did not provide any of the materials
requested of them.?
After Symantec refused to correct their misrepresentations, Netbula's
lawyer (a young black lady) filed a motion for Rule 11 sanctions.
Faced with indisputable evidence, Symantec finally admitted that
Netbula did bring some documents to the meeting.
Magistrate Chen heard the motion. After noting Netbula small and its
attorney a solo practitioner, he distorted the record and ordered
Netbula to pay $20,000.00 to Symantec. Chen wrote: 揫Symantec抯]
statement was not misleading. Netbula had not produced all the
documents requested.?
To justify his ruling in favor of Symantec, Chen writes:
揟he factual investigation [Symantec] needed to respond to [Netbula抯]
Rule 11 motion on the merits was not a task that could quickly be
accomplished. For example, a fair amount of time was reasonably
expended [by Symantec] to look into the history of events surrounding
the May 15, 2006, settlement meeting?the Court concludes that an award
of $20,000 [to Symantec] is reasonable.?
In fact, three Symantec attorneys had an email discussion on May 16,
2006 about the documents Netbula brought to the meeting the previous
day. Chen awarded Symantec attorneys for making a false statement that
was refuted by their own email.
The above is just one example of Chen抯 contortionist jurisprudence.
For more details, please review misconduct complaint No. 07-89078
filed with the Ninth Circuit. The Netbula v. Symantec case information
can be found on the web site http://www.american-justice.org
Chen抯 judicial philosohpy raises serious concerns on whether he can be
true to the oath of a judge -- to "do equal right to the poor and to
the rich."
For this reason, we request Your Honor not to appoint Chen to the
lifetime tenure of Article III Judge of the United States.
reply
Keith Kamisugi (not verified) on Thu, 08/13/2009 - 20:34
Title: This comment by anonymous
This comment by anonymous appears to be part of an astroturf campaign
by a person or persons with ties to Netbula, a company by the way that
"has been profitable since 1997" (so I don't know how the poor-rich
oath quote fits).
reply
koala on Fri, 08/14/2009 - 00:50
Title: I actually don't know if this
I actually don't know if this would be considered astroturf... sounds
like a grudge to me.
Netbula was formed in July 1996. (JSUF at 1.) Mr. Dongxiao Yue
("Yue") is the owner and only employee of Netbu-. la. (Id.)
and
When discovery extended longer than expected in this action, on May
18, 2007, the Court considered the parties' Request to Extend
Dates for Discovery, Dispositive Motions, and Trial. At that time, the
Court maintained the prior trial date of October 1, 2007, and set a
firm deadline of August 21, 2007 for hearing dispositive motions.
(Minute Order, Docket No. 140.) Given that Order, Plaintiff had the
responsibility to adhere to Local Rule 7-2(a) and file any motion for
summary judgment at least thirty-five days before the Court's August
21, 2007 deadline for hearing dispositive motions. See Civ. L.R. 7-2
(a). Indeed, Civ. L.R. 56-1 expressly provides that "motions for
summary judgment or summary adjudication must be noticed as provided
in Civil L.R. 7-2 and 7-3." Here, the applicable filing deadline of
July 17, 2007 passed two weeks before Plaintiff filed its cross-
motions.
...what did Netbula expect the judge to do?
Although I do sympathize...
reply
Anonymous Coward (not verified) on Sat, 08/15/2009 - 17:49
Title: Netbula expected the judge
Netbula expected the judge could stop Symantec making false
statements. The judge could simply deny Netbula's motion. But ordering
Netbula pay Symantec attorney FEE is unjust, because it was Symantec
lied, not Netbula.
reply
koala on Sat, 08/15/2009 - 18:43
Title: Oh, is this to me?Because the
Oh, is this to me?
Because the order denied sanctions based on the untimeliness of
Plaintiff’s motion, the Court does not reach Plaintiff’s objections to
Magistrate Judge Chen’s dicta on the merits of Plaintiff’s claims for
sanctions.
Because the order denied sanctions based on the untimeliness of
Plaintiff’s motion, the Court does not reach Plaintiff’s objections to
Magistrate Judge Chen’s dicta on the merits of Plaintiff’s claims for
sanctions.
(D. Mass. 1994). Since Defendant was the prevailing party on the Rule
11 motion, the magistrate judge had discretion to award it attorney’s
fees. The award was neither clearly erroneous nor contrary to law.
I would take the issue up with Netbula's attorney and not the judge
here... perhaps going with 1 young attorney against a team of Symantec
corporate lawyers was a bad idea. (What can you do?)
Again, I sympathize. I really do...
reply
Anonymous Coward (not verified) on Sat, 08/15/2009 - 19:26
Title: The Nebula base is over. The
The Nebula base is over. The current question is about Edward Chen's
intergrity.
Whenever someone nominated, people would check through the past. Only
at this time, a judge is judged by others.
reply
koala on Sat, 08/15/2009 - 21:25
Title: Right. I'm saying Judge Chen
Right. I'm saying Judge Chen followed precedent, which is usually how
the law works in this country. I'm sorry; your case is no example to
judging anyone's integrity.
The case only shows the ineptitude of Netbula's attorney and the
ability of huge corporations to hire good attorneys. Am I wrong?
reply
rameyko on Sun, 08/16/2009 - 00:51
Title: This is clearly a problem of
This is clearly a problem of someone confusing dissatisfaction with
one aspect of the case with the outcome of another. Whether or not
Symantec lied with respect to the discovery request is irrelevant to
the award of reasonable attorneys' fees to the prevailing party on the
Rule 11 motion. The Rule 11 motion was clearly untimely, which means
that the party opposing the motion, Symantec, prevailed, thus allowing
them to be rewarded attorneys fees.
One supposes that our anonymous commenter finds the notion unjust
because he/she assumes that IF the motion had been timely, Symantec
would have been sanctioned. Thus, it was unfair to award attorneys
fees because Symantec had been a bad actor in one sense. But even
taking such an assertion as true, it does not matter legally speaking
how badly Symantec may have acted if the motion was obviously
untimely. A party doesn't get to avoid attorneys' fees just because
the other party did something wrong in another part of the lawsuit.
For better or for worse, the practice of law is transcribed by
technical rules. The even enforcement of those rules may not always
result in what satisfies our larger notions of "justice."
reply
Anonymous Coward (not verified) on Sun, 08/16/2009 - 07:54
Title: judge Chen turned "[Netbula]
judge Chen turned "[Netbula] did not provide ALL material" to "not
provided ANY documents", and that is twisted the fact. This is
something about intergrity.
The public hearing will welcome everyone to address opinions.
The oppose party, e.g. Republic senators will focus on the problems.
reply
koala on Sun, 08/16/2009 - 12:06
Title: How would the situation have
How would the situation have changed if the judge did do so? It's
true that not all requested documents were produced, right?
reply
Anonymous Coward (not verified) on Sun, 08/16/2009 - 12:21
Title: Symantec accused Netbula did
Symantec accused Netbula did not provide ANY docs. Netbula filed
Rule-11 motion and requested saction. On the hearing, Symantec
admitted that Netbula did provide docs, but then changed a topic and
accussed Netbula did not provide ALL docs.
Judge Chen wrote “[Symantec’s] statement was not misleading. Netbula
had not produced all the documents requested.”
Get it? twisted the fact by changing topix.
reply
koala on Sun, 08/16/2009 - 12:26
Title: Did you... did you just
Did you... did you just change your website to omit the court findings
that are prejudicial to your cause?
reply
Anonymous Coward (not verified) on Sun, 08/16/2009 - 13:35
Title: the website stayed there for
the website stayed there for years.
http://american-justice.org/
reply
Anonymous (not verified) on Sun, 08/30/2009 - 20:26
Title: Based on the above,
Based on the above, Magistrate Judge Edward M. Chen is a wicked,
primitive crook, or worse than that. He lacks the basic character
required for a decent member of the society, let alone a U.S. District
Judge. Don't let such scum screwed the laws of the U.S. Say no to
Chen!
reply
Anonymous Coward (not verified) on Sun, 09/06/2009 - 13:26
Title: As you can read from the
As you can read from the related case documents, the May 15, 2006
meeting in the Netbula v. Symantec case was a private meeting between
the parties before Symantec answered the complaint. None of the
parties had any obligation to bring ALL documents -- the case did not
even have discovery plan yet. And the meeting was confidential.
Before Edward M. Chen's ruling, former Magistrate Judge Wayne D.
Brazil chided Symantec in a hearing about that meeting:
//////////
THE COURT (JUDGE BRAZIL asking Symantec lawyer): WERE YOU AT THAT
MEETING, MAY 15TH?
MR. WAKEFIELD (Symantec lawyer): I WAS, YOUR HONOR.
THE COURT: OKAY. AND THEY SAID -- THEY SAY THEY PRODUCED A BUNCH OF
DOCUMENTS, SHOWED, DISCLOSED, OFFERED FOR YOU GUYS TO KEEP. NO, NO, WE
DON'T WANT THEM PIECEMEAL. WE WANT THE WHOLE 9 YARDS, OTHERWISE WE
DON'T GET PAID ENOUGH MONEY.
//////////
Now, it's worth noting that someone as frank as Judge Brazil got no
Article III appointment.
Edward M. Chen's fraud is apparent to a 3-year old. Symantec accused
Netbula for not bringing ANY documents to the May 15 meeting. Symantec
did so to gain advantage in discovery. With the evidence (their own
email), Symantec later admitted that they lied.
Edward M. Chen wanted to award Symantec. But he could not do so if
Symantec was the liar. So he had to twisted Symantec's words to make
them not a lie. That's why he mischaraterized Symantec's written
statement to the Court, from accusing Netbula of not bringing "ANY"
documents to not bringing "ALL" documents.
BUT IT SAYS IN THERE 50 BUCKS PER23 COPY ROYALTY LICENSE. AND THEY
APPARENTLY SAID THAT BACK IN MAY24 AND THE MAY 15TH BUSINESS.25 WERE
YOU AT THAT MEETING, MAY 15TH?
reply
Anonymous Coward (not verified) on Sun, 09/06/2009 - 13:44
Title: Edward M. Chen also seem to
Edward M. Chen also seem to lack the basic understanding of the legal
jargon. Netbula's rule 11 motion was filed 3 months after the alleged
violations in their affirmative defneses filed in the Court.
In Chen's ruling against Netbula, Chen wrote: "The instant case
involves contentions made in motions, and not pleadings." And then
Chen concluded that Netbula's motion was too late. (Check rule 11,
there was no time requirement).
Apparerntly, Chen did not that Affirmative defenses are pleadings. How
can he be a judge if he does not understand the legal teminology?
Another part of Chen's fraud was the following. Symantec accused
Netbula of cheating the office by claiming that Netbula was founded in
1997 but its copyright said 1996. But one can easily verify Netbula
was founed in 1996.
Chen admitted that Symantec was wrong. But then he twisted the record.
He wrote: "Netbula should have asked Defendants to withdraw the
contention because Netbula was incorporated earlier in Delaware. It
could have easily document such to Defendants’ satisfaction. Netbula
did not do so."
That's blatant lie made by Mr. Chen. Netbula's certificate of service
clearly showed that Netbula served the Rule 11 motion 23 days before
filing it, giving Symantec more than 21 days to correct its false
statements. Netbula filed the Rule 11 motion only after Symantec
refused to withdraw their false statements from the court record.
copyright
reply
Anonymous Coward (not verified) on Sun, 09/06/2009 - 14:03
Title: Both Edward M. Chen and
Both Edward M. Chen and Martin J. Jenkins were accused of judicial
fraud. There were judicial misconduct complaints filed against these
two for their fraudulent rulings. Search "martin j. jenkins judicial
misconduct" on Google, and you will see the documents.
The story was that Edward M. Chen lied to cover Symantec. Netbula's
owner criticized Chen in a blog. Jenkins saw the blog and retaliated
against Netbula by using the so called Jenkins-Laporte Doctrine.
It is all dirty business.
copyright
Whether the motion was untimely has nothing to do with whether Edward
M. Chen was a liar.
The untimeliness of any motion is not an excuse for Edward M. Chen to
lie about the basic facts underlying the dispute.
Edward M. Chen's conclusion was that Netbula's motion was too late --
it was filed 3 months after the alleged violation in defendant's
Affirmative Defenses. Chen based this conclusion on his
misundetstanding of the legal term "pleading." As it is known to an
educated person, "affirmative defenses" are pleadings not motions. So
Chen screwed up by his failure to check his law dictionary.
Even if Netbula's motion was late, it does not make it automatically
sanctionable for a $20 fine. Chen had to twisted things around to make
Netbula look bad.
District Judge Martin J. Jenkins affirmed Chen. But Jenkins admitted
that Affirmative defenses are pleadings, but then he say Netbula
should bring the motion at the end of the case. So Netbula's motion
was too early.
From Chen's "too late" and Jenkins's "too early", that is affirmation
on other grounds.
But that's not the issue here though. Let's not divert the attention
from the legal dispute of whether Netbula's motion was too late or too
early. But focus on whether Edward M. Chen lied.
copyright
Fri, 08/07/2009 - 08:53 Edward Chen Jacqueline Nguyen
Wow, just days after nominating Judge Jacqueline Nguyen to serve on
the District Court of Central California, word comes out that
President Obama has just nominated Judge Edward Chen to serve as
federal district judge on the U.S. District Court for the Northern
District of California. This seat is particular significant because
this court has been...
the home of the most prominent Supreme Court decisions affecting Asian
Americans as ethnic groups, including Korematsu v. U.S. (upholding the
imprisonment of Japanese Americans during World War II - a decision
that was later overturned by the Honorable Marilyn Patel in a petition
for writ of error coram nobis, vacating Korematsu's conviction on
grounds of "manifest injustice"), Yick Wo v. Hopkins (striking down
discrimnatory laundry ordinances in San Francisco), Lau v. Nichols,
(mandating biligual education program); and Wong v. Hampton (striking
down federal civil service rules exclusing noncitizens from
employment).
According to this press release from the Asian American Bar
Association:
Chen would be the first Asian American district judge on the bench in
the 150-year history of that district. He was also the first Asian
American magistrate judge when he was appointed to that position on
April 23, 2001.
Under Article III of the U.S. Constitution, federal judges require
confirmation by the U.S. Senate and serve with lifetime tenure.
Magistrate Judges have limited terms and serve as judicial officers of
the district courts and exercise the jurisdiction delegated to them by
law and assigned by federal district judges.
“I’ve known and worked with Judge Chen for more than 37 years and seen
him become a great attorney and an outstanding jurist,” said attorney
Dale Minami of Minami Tamaki LLP, who worked with Chen on the
successful case to overturn the wartime conviction of Fred Korematsu
for defying President Roosevelt's internment order.
Garner Weng, President of the Asian American Bar Association of the
Greater Bay Area (AABA) noted that while there were a number of
excellent Asian American candidates, “Judge Chen earned this
nomination for his record of public service and his experience as a
federal magistrate. We are extremely proud of his nomination and of
his participation in AABA over the years.”
"Judge Chen will be a tremendous addition to the bench and has a wide
range of support from diverse groups, including the public interest,
law enforcement, legal, and minority communities," said Edwin Prather,
President of the Asian Pacific Bar of California and a former clerk
for Chen. Prather also said that Chen received the 2007 Barristers
Choice Award, an honor voted on by the membership of BASF's Barristers
Club and awarded to a jurist who has made extraordinary efforts to
educate and encourage lawyers new to the courtroom.
Russell Roeca, President of the Bar Association of San Francisco,
echoed Prather's comments and praised Senator Feinstein for the
nomination. “The Bar Association of San Francisco has long valued and
advocated for a diverse judiciary and noted the complete lack of
Latino and Asian American judges on the district court. In
recommending Judge Chen to the President, Senator Feinstein has
initiated a historical appointment.” Roeca also said that Chen
received an “Exceptionally Well Qualified” rating from BASF's
Judiciary Committee.
“Judge Chen enjoys a solid reputation as an intelligent, reasonable,
even-handed and diligent judge,” said San Francisco City Attorney
Dennis Herrera. Chen “is a balanced and impartial judge whose
temperament is well suited to the bench.”
"Judge Chen combines compassion and fairness with toughness and
intellect in tacking difficult issues," said attorney Ismail J.
Ramsey, who has appeared numerous times before Chen. "He has always
brought a practical approach to the issues, while ensuring that the
rights of all those appearing before him were honored and making
certain that the community was protected."
“Judge Chen has earned a reputation as an evenhanded jurist who is
constantly mindful of the role that judges fulfill in society as
keepers of the rule of law and the public trust in our system of
justice,” said David Wong, president of the San Francisco Deputy
Sheriffs' Association.
Chen graduated from the UC Berkeley School of Law where he earned
membership in the Order of the Coif, the highest honor society at the
school, and served on the California Law Review. He clerked for U.S.
District Judge Charles B. Renfrew and U.S. Court of Appeals Chief
Judge James R. Browning.
After his clerkships, Chen practiced as a litigation associate with
the law firm of Coblentz, Cahen, McCabe & Breyer (now Coblentz, Patch,
Duffy & Bass). While with the Coblentz firm and then as a staff
attorney with the ACLU of Northern California, Chen joined the legal
team representing Fred Korematsu.
The Asian American Bar Association of the Greater Bay Area (AABA) was
founded in 1976 to provide Asian American attorneys with a vehicle for
the unified expression of opinions and positions on matters of concern
to all Asian American attorneys. The largest local Asian American bar
association in the country, AABA is also one of the largest minority
bar associations in California. For more information, visithttp://aaba-bay.com.
Good luck to Judge Chen!
Average:
Cancel rating
Poor
Okay
Good
Great
Awesome
No votes yet
curtis's blog Share This!
Anonymous Coward (not verified) on Thu, 08/13/2009 - 20:13
Title: We write to you to register
We write to you to register our serious concerns about Edward M. Chen抯
nomination to the U.S. federal court. Chen抯 biased judicial style has
come to our attention through legal cases publicized on the Internet.
As tax payers who pay judges to do justice, We oppose his nomination
and confirmation.
Chen's ruling in the Netbula v. Symantec litigation shows his judicial
philosohpy. In 2006, Netbula, LLC, a small software company sued
Symantec Corporation for copyright infringement. Symantec made
numerous misrepresentations to the Court. Even the presiding judge had
found that Symantec 搈ischaracterize[d]?the record. However, when
Netbula requested a Court order to force Symantec to correct its court
filings, instead of upholding the integrity of the judicial process,
Chen denied Netbula's request and ordered Netbula to pay $20,000 to
Symantec. The following is but one example of how Chen distorts the
record.
On May 15, 2006, Netbula and Symantec held a confidential private
meeting. Netbula brought a stack of paper documents, and the parties
and attorneys discussed them. At the end of the meeting, Symantec
declined to take the Netbula documents. Then, it alleged in a Court
filing that 揝ymantec ?provided the materials requested of them...
Netbula, on the other hand, did not provide any of the materials
requested of them.?
After Symantec refused to correct their misrepresentations, Netbula's
lawyer (a young black lady) filed a motion for Rule 11 sanctions.
Faced with indisputable evidence, Symantec finally admitted that
Netbula did bring some documents to the meeting.
Magistrate Chen heard the motion. After noting Netbula small and its
attorney a solo practitioner, he distorted the record and ordered
Netbula to pay $20,000.00 to Symantec. Chen wrote: 揫Symantec抯]
statement was not misleading. Netbula had not produced all the
documents requested.?
To justify his ruling in favor of Symantec, Chen writes:
揟he factual investigation [Symantec] needed to respond to [Netbula抯]
Rule 11 motion on the merits was not a task that could quickly be
accomplished. For example, a fair amount of time was reasonably
expended [by Symantec] to look into the history of events surrounding
the May 15, 2006, settlement meeting?the Court concludes that an award
of $20,000 [to Symantec] is reasonable.?
In fact, three Symantec attorneys had an email discussion on May 16,
2006 about the documents Netbula brought to the meeting the previous
day. Chen awarded Symantec attorneys for making a false statement that
was refuted by their own email.
The above is just one example of Chen抯 contortionist jurisprudence.
For more details, please review misconduct complaint No. 07-89078
filed with the Ninth Circuit. The Netbula v. Symantec case information
can be found on the web site http://www.american-justice.org
Chen抯 judicial philosohpy raises serious concerns on whether he can be
true to the oath of a judge -- to "do equal right to the poor and to
the rich."
For this reason, we request Your Honor not to appoint Chen to the
lifetime tenure of Article III Judge of the United States.
and
Although I do sympathize...
reply
reply
reply
Anonymous Coward (not verified) on Sun, 08/16/2009 - 07:54
Title: judge Chen turned "[Netbula]
judge Chen turned "[Netbula] did not provide ALL material" to "not
provided ANY documents", and that is twisted the fact. This is
something about intergrity.
The public hearing will welcome everyone to address opinions.
The oppose party, e.g. Republic senators will focus on the problems.
reply
koala on Sun, 08/16/2009 - 12:06
Title: How would the situation have
How would the situation have changed if the judge did do so? It's
true that not all requested documents were produced, right?
reply
Anonymous Coward (not verified) on Sun, 08/16/2009 - 12:21
Title: Symantec accused Netbula did
Symantec accused Netbula did not provide ANY docs. Netbula filed
Rule-11 motion and requested saction. On the hearing, Symantec
admitted that Netbula did provide docs, but then changed a topic and
accussed Netbula did not provide ALL docs.
Judge Chen wrote “[Symantec’s] statement was not misleading. Netbula
had not produced all the documents requested.”
Get it? twisted the fact by changing topix.
reply
koala on Sun, 08/16/2009 - 12:26
Title: Did you... did you just
Did you... did you just change your website to omit the court findings
that are prejudicial to your cause?
reply
Anonymous Coward (not verified) on Sun, 08/16/2009 - 13:35
Title: the website stayed there for
the website stayed there for years.
http://american-justice.org/
reply
Anonymous (not verified) on Sun, 08/30/2009 - 20:26
Title: Based on the above,
Based on the above, Magistrate Judge Edward M. Chen is a wicked,
primitive crook, or worse than that. He lacks the basic character
required for a decent member of the society, let alone a U.S. District
Judge. Don't let such scum screwed the laws of the U.S. Say no to
Chen!
Anonymous Coward (not verified) on Sun, 09/06/2009 - 14:29
reply
Anonymous Coward (not verified) on Sun, 09/06/2009 - 14:42
Title: To Keith Kamisugi, we cannot
To Keith Kamisugi, we cannot blindly support Chen because he is an
Asian. We need to examine his character. There are a lot of qualified
Asian persons for federal judgeship. A biased Asian judge will
disgrace all Asians.
From some of the posting here, some of the defenders of Chen seem to
be attacking Netbula's small size. That's so wrong. Chen ruled against
Netbula exactly because Symantec was big. Asian minorities often face
injustice because their small numbers and lesser resources. We don't
need a snobbish Asian judge. Some of you here know Mr. Chen, so ask
him why he lied.
I would certainly like to have the oppurtunity to question him why he
lied.
reply
Anonymous Coward (not verified) on Sun, 09/06/2009 - 15:07
Title: FYI, if you don't know what
FYI, if you don't know what Rule 11 of the FRCP is, please check
http://www.law.cornell.edu/rules/frcp/Rule11.htm
By presenting to the court a pleading, written motion, or other paper
— whether by signing, filing, submitting, or later advocating it — an
attorney or unrepresented party certifies that to the best of the
person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after
a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on belief or a
lack of information.
(4) Nature of a Sanction.
A sanction imposed under this rule must be limited to what suffices to
deter repetition of the conduct or comparable conduct by others
similarly situated. The sanction may include nonmonetary directives;
an order to pay a penalty into court; or, if imposed on motion and
warranted for effective deterrence, an order directing payment to the
movant of part or all of the reasonable attorney's fees and other
expenses directly resulting from the violation.
reply
Anonymous Coward (not verified) on Sun, 09/06/2009 - 15:23
Title: More to Keith Kamisugi, you
More to Keith Kamisugi, you wrote Netbula was "'a company by the way
that "has been profitable since 1997' (so I don't know how the poor-
rich oath quote fits)."
Many small companies are profitable. But that does not mean they have
the billions to available to buy off judges or their families. In
fact, before Judge Martin J. Jenkins knew Netbula was a small company,
he ruled in favor of Netbula, and ruled that defendants
"mischarzterize" record.
Jenkins made a 180 degree turn, essentially slapping his own face,
after learning that Netbula was small and Netbula's owner critized
Chen.
The only protection we minorities can have is the law. That's the only
protection we can get.
We don't need judges that is untruthful to the law and don't need
judges that distort the facts.
copyright
To: U.S. Congress and President Obama
federal court. Chen’s biased judicial style has come to our attention
through legal cases publicized
on the Internet. As tax payers who pay judges to do justice, We oppose
his nomination and
confirmation.
Chen's ruling in the Netbula v. Symantec litigation shows his judicial
philosohpy. In 2006,
Netbula, LLC, a small software company sued Symantec Corporation for
copyright infringement.
Symantec made numerous misrepresentations to the Court. Even the
presiding judge had found
requested a Court order
to force Symantec to correct its court filings, instead of upholding
the integrity of the judicial
process, Chen denied Netbula's request and ordered Netbula to pay
$20,000 to Symantec. The
following is but one example of how Chen distorts the record.
On May 15, 2006, Netbula and Symantec held a confidential private
meeting. Netbula brought a
stack of paper documents, and the parties and attorneys discussed
them. At the end of the
meeting, Symantec declined to take the Netbula documents. Then, it
alleged in a Court filing that
the other hand, did not
After Symantec refused to correct their misrepresentations, Netbula's
lawyer (a young black lady)
filed a motion for Rule 11 sanctions. Faced with indisputable
evidence, Symantec finally admitted
that Netbula did bring some documents to the meeting.
Magistrate Chen heard the motion. After noting Netbula small and its
attorney a solo practitioner,
he distorted the record and ordered Netbula to pay $20,000.00 to
Symantec. Chen wrote:
“[Symantec’s] statement was not misleading. Netbula had not produced
all the documents
requested.”
Rule 11 motion on the
merits was not a task that could quickly be accomplished. For example,
a fair amount of time was
reasonably expended [by Symantec] to look into the history of events
surrounding the May 15,
[to Symantec] is
reasonable.”
Oppose the Nomination of Edward M. Chen to Federal Bench Petition
http://www.petitiononline.com/emc_bad/
1 of 2 http://www.petitiononline.com/emc_bad/
In fact, three Symantec attorneys had an email discussion on May 16,
2006 about the documents
Netbula brought to the meeting the previous day. Chen awarded Symantec
attorneys for making a
false statement that was refuted by their own email.
For more details, please
review misconduct complaint No. 07-89078 filed with the Ninth Circuit.
The Netbula v. Symantec
case information can be found on the web site http://www.american-justice.org
be true to the oath of a
judge -- to "do equal right to the poor and to the rich."
For this reason, we request Your Honor not to appoint Chen to the
lifetime tenure of Article III
Judge of the United States.
The Undersigned
View Current Signatures
The Oppose the Nomination of Edward M. Chen to Federal Bench Petition
to U.S. Congress and President Obama was
created by American Justice Group and written by Equal Justice Under
Law (forequa...@gmail.com). This
petition is hosted here at www.PetitionOnline.com as a public service.
There is no endorsement of this petition,
express or implied, by Artifice, Inc. or our sponsors. For technical
support please use our simple Petition Help form.
tags: chen Corruptioon court edward Federal judge Judicial M.
Send Petition to a Friend - Petition FAQ - Start a Petition -
Contributions - Privacy - Media Kit
PetitionOnline - DesignCommunity - ArchitectureWeek - Great Buildings
- Archiplanet - Search
http://www.PetitionOnline.com/emc_bad/petition.html © 1999-2007
Artifice, Inc. - All Rights Reserved.
share: blogger del.icio.us digg facebook furl reddit slashdot send to
a friend
Oppose the Nomination of Edward M. Chen to Federal Bench Petition
http://www.petitiononline.com/emc_bad/
2 of 2 http://www.petitiononline.com/emc_bad/
PETITION SIGNATUES www.petitiononline.com/emc_bad/
NumberName Email Comments Address
1 carol Shi Edward Chen does not represent the Asian American
community, nor does he represent justice in the court room.
He bases his rulings completely on whichever party has the
most money and power, not on legal standards. We cannot
blindly support Chen because he is Chinese. He does
nothing for the Asian community, and if you look closely at
his rulings, he purposely rules against Asians, regardless of
whether they are legally correct. Obama must remove him
as a magistrate, not promote him to be a District Court
judge. Fremont, California
2 Steven Li I am concerned about basic human rights violated by such
corrupt judge. I oppose his nomination. Santa Clara, California
3 Yong Li
yli0...@yahoo.com
This judge mistreated his own race. From "did not provide
ANY document" to "not provide All document" trick game
and shame!
4 Bo Liu Please don't appoint Edward Chen. His integrity is
questioned. Redwood City, California
5 Feng Ying I oppose his nomination.
6 Lily Fan remove Chen from Federal Court !
7 Weidian Ma weidi...@msBn.icaosmed judicial style
8 linda wong No Edward Chen !!!
9 Peter H. J. Chen demonstrated a pattern of bias and prejudice, he
should be removed from Court.
10 Mike Tran I oppose the Nomination of Chen.
11 Bin Xie
bxi...@gmail.com
I am an Chinese American, but I strongly oppose the
Nomination of Edward M. Chen to Federal Bench
13 Ben Wang I oppose his appointment
14 Kao Li justice for all
15 Ying Lu The courtroom door is open to all
16 Peter Lin No Edward Chen !!!
17 Xiangling Li Chen is not good as a Judge.
18 Hong Jun I oppose injustice.
19 Qin Wang Chen can not represent justice California
20 Bin Zhang Please remove Chen from the Court.
21 Fengling Zhen I oppose injustice.
22 Michael Lin Obama must remove Chen as a magistrate, not promote
him to be a District Court judge.
23 Ping Zhao Remove Chen from the Court
24 Lishen Ying Remove Chen from the Court and protect human rights.
Page 1
PETITION SIGNATUES www.petitiononline.com/emc_bad/
NumberName Email Comments Address
25 Sharon Chen Chen should be removed from the Court due to his
misconducts at legal cases.
26 Ming Qin opposition
27 lisa Fen Chen is NOT qulified to be appointed.
28 Huilan Yang against corruption in judicial system
29 Jack Meyer I've lost hope in the judicial system.
30 Eric Zhu Chen is a disgrace to all Asians
31 Joy Z. I hope this man is punished
32 Ting G Edward Chen is a liar
33 J Qian remove chen from office immediately
34 Ken Zhang Edward Chen - RESIGN NOW!
35 Mary Fisher this magistrate's behavior is an abomination
36 Paul K actions
37 Henry our court system's blatant lies are finally revealed here
38 Wilson Jose chen's actions offend all minorities
39 M Ronald NO TO CHEN!
40 Lucy Sharma As an Asian American, I'm especially angered to see
this
man be appointed. What will happen to my rights?
41 Meena Sampath How could the state bar even give Edward Chen a
license?
42 K Wang This man is the epitome of injustice
43 Qin Feng What an awful person!
44 Gary Lin How does he sleep at night?
45 Xu K i wonder if he still considers himself human
46 Jason Gupta i fully support this petition
47 Lina Tao obama was supposed to help civil rights, not remove them
by nominating edward chen
48 Susie Chen edward chen is social injustice at its peak
49 Xing P. I hope Obama regrets nominating Edward Chen and
immediately retracts it!
50 Alexander Chen EDWARD CHEN MUST RESIGN NOW!
51 Ju Xia Chen - God will punish you
52 Hong Zheng Chen will be punished
53 B Garcia CHEN - LEAVE OFFICE!
54 John Durham I am a parent, and I am very glad my son did not choose
to
go into law. It's people like Edward Chen that make the
entire US corrupt.
55 fang Shih No to Edward Chen
56 Yong Yang we need JUSTICE not injustice.
57 Kunyang Chen No to a corrupt judge
58 Jin Fan No to injustice !
Page 2
PETITION SIGNATUES www.petitiononline.com/emc_bad/
NumberName Email Comments Address
59 Linda Lei We are concerned about basic human rights violated by
this corrupt judge. Milpitas California
60 haiqun yun Chen?s judicial conduct is poor.
61 Xiaoling Please reconsider the Nomination of Chen.
62 Kevin Thompson
kmt...@comcast.net
Judicial corruption is out of control in this country. The
Catholic priest scandal has nothing on the betrayals of
public trust occurring in our courts, which are accountable
to no one. How much longer are our legislators going to
ignore the problem?
63 Ming Shi I Oppose the Nomination of Edward M. Chen to Federal
Bench
64 Yue Bai I oppose the nomination of Edward M Chen
65 Jon Steele Obey and defend the Constitution or its treason
66 li ying ii...@126.com she(chen) tooo bad to chinese
67 Randy Pentico He can not be trusted.
68 hanjuan jin We need real justice in the system
69 Ronald E. Jenks, Sr. Take America back!
70 Shelton Liu As a Chinese American, I oppose the Nomination of Chen.
San Jose
71 John Stevens Obama needs to choose another prominent candidate to
fill
Seat.
72 Sondra Clark We need to know Chen's birthplace , if he was born
outside
the United States, he can't become a U.S. Federal judge.
73 Ming Hua I am not happy when Chen was appointed to the Federal
Bench.
74 Xiao Hua No to Chen.
75 Ailan Shih The nomination of Edward Chen to Federal Bench is a big
mistake
76 Qing He No to Injustice. No to Chen.
77 Nancy Liang I don't fell safe with Edward Chen.
78 Shihong Chen No to Chen
79 Mingjun Zhao I oppose Edward Chen.
80 Li Kai I oppose Chen
81 Huang Ping choose another candidate instead of Chen.
82 Mike L. Tran I don't believe Chen based on his record.
83 Ting Zhang No to Chen.
84 Lucy Yang We need justice.
85 Zilan Bai Chen demonstrates a poor judicial conduct.
86 Baichao Li Based on Chen's record, I don't trust him.
87 Edward Zhang Chen can be replaced by any one if we don't care an
nominee?s integrity
Page 3
PETITION SIGNATUES www.petitiononline.com/emc_bad/
NumberName Email Comments Address
88 Zhiquang lei Chen made clear errors in the past cases, I oppose the
Nomination of Chen.
89 peter Lin please replace him
90 Dalun Zheng I don't trust Chen
91 Eric Li No to corruption in judicial system
92 Bowen zhang Chen is not qulified to be a judge
93 Zhu, Ping I am concerned my human rights
94 yongping zhu
95 Dr. Wendy Xia If a judge abuse the doctrine of judicial immunity,
there
will be justice for no one.
96 Hong Sun
97 Boping Song
98 JAMES
99 Gary Multer There is no evidence showing that Chen was a good
magistrate.
100 Yin Lu
101 Yawen Chen
102 Longjun Wu
103 Dr. Bojun Song Corruption in the judiciary negatively affects the
implementation of the principles of fair trial and erodes the
rule of law
104 Wenping Feng
105 Scott Li
106 Jack Zhang
107 Meiyun Lin I have concerns about Chen's judicial philosophy
108 PAUL I read a litigant 's complaint against Chen, I have concerns
about Chen's integrity.
109 Lucy Liang
110 Beverly Wong
111 Robert Lackman
hubaoq...@yahoo.com
Proverbs 18:5 It is not good to be partial to the wicked or
to deprive the inocent of justice
112 Qiling Yang
113 Tao Zhao I am a Chinese American. I oppose the Nomination of
Chen becaue we need justice.
114 Robert Bensley brilliantvideo@gmKaeielp.c ohmim out Boston
Massachusetts
115 TAMARA
116 Chunbo Zhang Distrot the records and bully a small compmny, Chen's
integrity is questioned.
117 Ying Zhang
118 Xiaohua Shih
Page 4
PETITION SIGNATUES www.petitiononline.com/emc_bad/
NumberName Email Comments Address
119 Guo, Hongying
120 Yang He
121 Yong Ping
122 Eric Zhou Based on the errors made by Chen in the cases of 2006, I
oppose the Nomination of Chen.
123 Joy Zhao Chen?s judicial philosohpy raises serious concerns on
whether he can be true to do equal right to the poor and to
the rich.
124 Chi Zhang I oppose Chen's nomination and confirmation.
125 Ye Chen
126 Wenke Wang
127 Jin Lin
128 Tao Li No to Chen, He can not do equal right to all based on the
Netbula v. Symantec case
129 Xinglian Zhao Chen?s contortionist jurisprudence make me sick
130 Andrew Xia
131 Yiming
132 Michael
133 Andrew Lee I oppose the nomination of Edward Chen because he made
a biased judgement toward a small company. How can I
trust him in any other cases?
134 Penny Woo Judge of the U.S. District Court should be a person who
can constantly exercise objective judgement.
135 Aljerin Butler, Jr.albutlerjr@hotmaIitl .dcooems happen some time.
Framingham, Massachusetts
136 Lisa Wu Chen is not good as a magistrate, how can he become a
District Judge ? California
137 Peter Wong Chen made clear errors in the case Netbula v. Symantec
because he was able to abuse the doctrine of judicial
immunity. CA
138 Qiang Wei
139 Qing He Look at the case Netbula v. Symantec, I cannot trust him
in
any other cases.
140 Kai Li
141 Tianming Lu
142 Yiang Yu
143 Pingyiang
144 Yuming Lu
145 Bo Wen
146 Liping Yang Keep Chen out !
Page 5
PETITION SIGNATUES www.petitiononline.com/emc_bad/
NumberName Email Comments Address
147 Li Yue Chen's ruling in the Netbula v. Symantec litigation, Chen
is
not good Judge.
148 Xing Li I oppose the nomination of Chen
149 Qiling Li
150 Andy Liu I don't want to pay my tax money to Chen because he has
manifested bias.
151 Ping Zhu This system is full of flaws and liars, how could we
expect
to get a qualified judge from the liars?
152 Bob Shieh
153 Stella Lin
154 Lisa Chhi
155 Larry Fell
156 Marilyn Nakamura Keep Chen out of our courtrooms!
157 Brandon Gupta
158 Rose Zhang
159 Mason Li
160 Sasha Karrach
161 barry liu
162 Carrie Sok
163 Zihao Wu
164 ray ip
165 Ramya Syed what an awful man
166 Dan Pasahan
167 Lawson Gabtuck
168 Michael He
169 Maria Kotak
170 Shuzo Yamagami
171 Meiling Poon I can't believe he's even a judge
172 Sihong Chen I cannot blindly support Chen because he is Chinese.
173 Fang Liu
174 Lanfang He Based on Chen's ruling in the Netbula v. Symantec, I
and
my family oppose the nomination of Chen.
175 adolph rubio I DON'T THINK HE'S THE RIGHT MAN
176 Ari Cohn ac...@majicom.hceolmlo 1514 Alta Glen Dr. #25; San 177
AGBA Leon an
178 Liang Feng Keep him out. Massachusetts
179 Jing Fei Zhu Say no to Chen
180 Lily Fan
181 Fengmei Yu
182 Jack Chen
Page 6
PETITION SIGNATUES www.petitiononline.com/emc_bad/
NumberName Email Comments Address
183 Qiming Li
184 Cindy Liu Chen is actually purposely ruling on behalf of parties
with
money and power, thereby eliminating the rights of all
citizens. San jose, California
185 Wen Zhao Chen is not a right man
186 Xiangling
187 Bin Yang We are concerned about basic human rights violated by
this corrupt judge.
188 Ying Liu
189 Wenhua Zhu
190 Wang, Jun Don't let Chen to manipulate his status as a minority to
appear as though he is furthering civil rights, California
191 LiKai Wang
192 Andrew Liqun Li Oppose someone with a trace recorde like Mr Chen's
to be
on the federal bench
193 Benton Bain Oppose the Nomination of Edward M. Chen to Federal
Bench
194 Bill E.
I neither oppose nor support this nomination. I am not a
supporter of President Obama, or of the current majority
party in Congress. But I can see nothing in the information
provided here which shows bias or shows this person is in
any way unfit for a judicial appointment. Obviously any
court case involves a dispute as to the facts, and a judge
has to make a decision to place more weight on one set of
evidence than the other. I know nothing about this judge
and nothing about this court case other that what I have
read here, but from what I can gather, this petition is being
organized by people who may be connected with the
loosing side in this particular court case. That is no reason
to disqualify someone from a judicial appointment.
195 Doyle F. Harrell Any judge should represent all parties equally.
Obviously
this is not the case with Mr, Chen.
196 Doyle F. Harrell Any judge should represent all parties equally.
Obviously
this is not the case with Mr, Chen.
197 Darlene Crawford
dar...@dcrawford.org
Please watch who gets on the bench. We are depending on
you.
198 Darlene Crawford Please watch who gets on the bench. We are
depending on
you.
199 Arthur Gnaegy No way this should go through at all 7399 club Drive
200 Debbie Diefenderfer No way this should happen
Page 7
PETITION SIGNATUES www.petitiononline.com/emc_bad/
NumberName Email Comments Address
201 Dalene Cornelia Say "NO" to Chen
202 Debra Biffert bi...@pop.ctctel.cIo moppose Ed Chen's nomination to
Federal Bench
203 Xukai Li I oppose the nomination of Chen after reading a
litigant's
complaint against Chen's misconducts. Redwood, California
204 Gaiwen Shih
205 Edmund Gruebele I Oppose the attached petition.......
206 Peter Huang
The improper practices by Chen in Federal District Court
highlight problems in the judicial system, which need to be
changed. The absolute immunity is required for the benefit
of the public, not for the protection of malicious or corrupt
judges.
207 Fang Lin I Oppose the Nomination of Chen
208 bill dillon yet another non transparent
209 Dayne Penney Please oppose this nomination
210 Christine Chang I "OPPOSE" the nomination of Chen to Federal Bench
because my own painful experience of Chen's extremely
bias and prejudice judgments against plaintiffs despite
mounting evidence of disabled plaintiffs who are injured
tremendously by the defendants. I "OPPOSE" the
nomination of Chen who disallowed plaintiffs taking
discovery then abruptly judged against plaintiffs without
reinstating discovery helping the defendants take advantage
of plaintiffs who are lay persons. I "OPPOSE" the
nomination of Chen who is extremely bias and prejudice
against plaintiffs and could not uphold law and U.S.
Constitution.
211 Doris Ulrich Please remove Chen
212 David Colacchio Truth and Justice
213 Carl Grula Opposed Lansdale PA
214 Bill Sparks bsparks@sparks-Dcoo.c nomot vote for E.M. Chen to
Federal Bench
215 Debbie Darnold Not a good choice Hannibal
216 Colin Nicholas colin...@gmaiwl.ceo nmeed judges of integirty and
honesty
217 Barbara Williamson oppose Judge Chen
218 David L. Cox dav...@cableonTey.npeictal of Obama's actions
219 Eva Anda an...@west.net Please consider these concerns 5142
Hollister Ave #147
220 Colleen Crook I am against Edward M. Chen rising to the Federal
Bench.
221 Richard O. Koenig This person is not suited for this position!
Beaufort, SC
222 Fake Name Bogus Petition by Idiots Not a Real Person
223 Woodrow Crook bad, bad approval people!
Page 8
PETITION SIGNATUES www.petitiononline.com/emc_bad/
NumberName Email Comments Address
224 Yongping Zhou
Edward Chen has no basic qualification to be appointed,
his dishonesty to the law is the reason to keep him out. Out,
Edward Chen
225 Shaomin Xing It is sad that minority against minority
Massachusetts
226 Robert Rodi
I oppose the nomination of Edward M. Chen to the Federal
Bench
227 George Mattesongeorge@crookeId ojupsptoicsee. cthoem Nomination of
Edward Chen Avon Park, Florida 33825
228 Dell H. Bean dell@blackelkoIu otfpiptotseer tsh.isc onmomination
PO Box 1277
229 Eric Orchard Oppose Edward Chen for federal branch
230 Glenn Taggart oppose the nomination
231 David Mount
President Obama, I am certain you can nominate someone
with a better judicial record than this.
232 Rosalina Aglialoro
I OPPOSE THE NOMINATION OF EDWARD CHEN
TO THE FEDERAL BENCH!!!
233 Hongying Li
His immoral behavior as a magistrate shows that he is not
qualified this position.
234 Ping Xu Please choose another person with good record.
235 Bin Xia We need a Judge for justice, keep Chen out.
236 John S. Larrimorjaemeslarrimore@I oypaphooos.ec otmhe
nominationtion of Ed Chen
237 Qingshen Wang
As a Chinese American, I'm especially angered to
see this man be appointed. What will happen to my
rights?
238 Liang Zhu CHEN - LEAVE OFFICE!
239 Qixing Wang
240 David Jacobson no trust for Mr Chen
241 Bev J
I oppose the nomination of Edward M. Chen to the
Federal Bench
242 Tom McDonald Equal justice for all
243 Sheikh Rami Phasraonafohr desl-adnef oSrda@dVeew IreVbb.otvte.nnet
244 Bohdan Lukaschewsky please reconsider
245 Sue Flynn some more of the president's crap
246 Janet
We cannot have a judge who knowingly distorts the
truth.
247 Dale Not another liar on the bench
248 Joseph Caro vote no on Chen
249 Ewin Hogarth Stop Obama's nominee!! Missouri
250 James Fauth opposed to him
251 Rebecca Hollingsworth do better than this, sir!
252 Thomas Johnson
There are already enough corporate-owned yesmen
on the supreme court, please do not
recommend another of their ilk for a seat on the
federal bench.
253 Lynn Please appoint someone who upholds the law
Page 9
PETITION SIGNATUES www.petitiononline.com/emc_bad/
NumberName Email Comments Address
254 geri james Oppose the nomination of Edward M. Chen
255 LYDIA APODACA Why would we the USA want to repeat mistakes?
256 Barbara Adamese Oppose Nomination of E. M. Chen to Federal Bench
257 Joe Mansueto Thank you!
258 Denny Chen Oppose Edward Chen to federal bench
Page 10
copyright
Facts:
(1) Chen has ties with defendant;
(2) Chen donates money to defendant;
(3) Chen refuses to recuse himself;
(4) Chen forbids discovery;
(5) Chen dismisses plaintiff’s case;
(6) Chen blasts plaintiff as delusional;
(7) Chen hides the truth from the Senate!
U.S. District Court
California Northern District (San Francisco)
CIVIL DOCKET FOR CASE #: 3:07-cv-04005-EMC
Chang v. Rockridge Manor Condominium et al
Assigned to: Magistrate Judge Edward M. Chen
Case in other court: 08-15539
08-16348
08-16753
Cause: 42:1983 Civil Rights Act
Date Filed: 08/03/2007
Date Terminated: 07/03/2008
Jury Demand: Plaintiff
Nature of Suit: 440 Civil Rights: Other
Jurisdiction: Federal Question
Plaintiff
Christine Chang
individually and as guardian ad litem for Eric Sun, disabled
represented by Christine Chang
Alameda, CA 94501
PRO SE
Plaintiff
Eric Sun
disabled
TERMINATED: 05/06/2008 represented by Eric Sun
PRO SE
V.
Defendant
Rockridge Manor Condominium
TERMINATED: 02/21/2008 represented by Sara B. Allman
Allman & Nielsen
100 Larkspur Landing Circle
Suite 212
Larkspur, CA 94939
415/461-2700
Fax: 415-461-2726
Email: all-...@comcast.net
ATTORNEY TO BE NOTICED
Defendant
Rockridge Manor Homeowners Asso
TERMINATED: 02/21/2008 represented by Sara B. Allman
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Rockridge Manor Board of Directors
TERMINATED: 02/21/2008 represented by Sara B. Allman
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Charles Blakeney
Rockridge Manor President of Board of Directors
TERMINATED: 02/21/2008 represented by Sara B. Allman
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Eva Ammann
Rockridge Manor Manager represented by Edward Joseph Rodzewich
Valerian Patterson & Stratman
1650 Harbor Bay Parkway, Suite 100
Alameda, CA 94502
510-521-0612
Fax: 510-337-0125
Email: Edward.R...@farmersinsurance.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
Truck Insurance Exchange represented by Lee J. Danforth , Esq.
Coddington, Hicks & Danforth
555 Twin Dolphin Drive, Suite 300
Redwood City, CA 94065
(650) 592-5400
Email: LDan...@CHDLawyers.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Richard Stuart Baum
Coddington, Hicks & Danforth
555 Twin Dolphin Drive, Suite 300
Redwood City, CA 94065
650-592-5400
Fax: 650-592-5027
Email: RB...@CHDLawyers.com
ATTORNEY TO BE NOTICED
Defendant
University of California Berkeley represented by Gaylynn Kirn Conant
Lombardi Loper & Conant, LLP
Lake Merritt Plaza
1999 Harrison Street
Suite 2600
Oakland, CA 94612-3541
510-433-2600
Fax: 510-433-2699
Email: g...@llcllp.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
Robert Birgeneau
UC Berkeley Chancellor represented by Gaylynn Kirn Conant
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Alan Kolling
UC Berkeley Public Records Coordinator represented by Gaylynn Kirn
Conant
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Susan Von Seeburg
UC Berkeley General Counsel represented by Gaylynn Kirn Conant
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Victoria Harrison
UC Berkeley Police Department represented by Gaylynn Kirn Conant
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Adan Tejada
UC Berkeley Police Department Lieutenant represented by Gaylynn Kirn
Conant
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Tom Klatt
UC Berkeley Police Department Manager represented by Gaylynn Kirn
Conant
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Constance Peppers Celaya
UC Berkeley Police Department Dispatcher represented by Gaylynn Kirn
Conant
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Pamela Zimba represented by Andrew Raymond Adler
Boornazian Jensen & Garthe
P.O. Box 12925
555 12th St., Suite 1800
Oakland, CA 94604-2925
510-834-4350
Fax: 510-839-1897
Email: aad...@bjg.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Alan Edward Swerdlow
Boornazian Jensen & Garthe
555 - 12th Street
Suite 1800
P.O. Box 12925
Oakland, CA 94604-2925
510-834-4350
Fax: 510-839-1897
Email: aswe...@bjg.com
TERMINATED: 01/11/2008
ATTORNEY TO BE NOTICED
Defendant
Albert Coombes represented by Albert Frank Coombes
Law Offices of Albert F. Coombes
15915 Ventura Blvd.
Penthouse 4
Encino, CA 91436
818-986-1533
Fax: 818-986-1657
Email: coomb...@aol.com
ATTORNEY TO BE NOTICED
Defendant
The Regents of the University of California represented by Gaylynn
Kirn Conant
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Date Filed # Docket Text
08/03/2007 1 COMPLAINT; summons issued against Robert Birgeneau, Alan
Kolling, Susan Von Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt,
Constance Peppers Celaya, Pamela Zimba, Albert Coombes, Rockridge
Manor Condominium, Rockridge Manor Homeowners Asso, Rockridge Manor
Board of Directors, Charles Blakeney, Eva Ammann, Truck Insurance
Exchange, University of California Berkeley (Filing fee $ 350, receipt
number 3461100905). Filed by Christine Chang. (slh, COURT STAFF)
(Filed on 8/3/2007) (Entered: 08/06/2007)
08/03/2007 2 ADR SCHEDULING ORDER: Case Management Statement due by
10/31/2007. Case Management Conference set for 11/7/2007 01:30 PM.
(Attachments: # 1 EMC Standing Order; # 2 Case Management Standing
Order)(slh, COURT STAFF) (Filed on 8/3/2007) (Entered: 08/06/2007)
08/03/2007 CASE DESIGNATED for Electronic Filing. (slh, COURT
STAFF) (Filed on 8/3/2007) (Entered: 08/06/2007)
09/26/2007 3 CONSENT to Proceed Before a US Magistrate Judge by
Christine Chang. (slh, COURT STAFF) (Filed on 9/26/2007) (Entered:
10/01/2007)
09/26/2007 4 SUMMONS Returned Executed by Christine Chang. Robert
Birgeneau served on 9/7/2007, answer due 9/27/2007; Alan Kolling
served on 9/7/2007, answer due 9/27/2007; Susan Von Seeburg served on
9/7/2007, answer due 9/27/2007; Victoria Harrison served on 9/7/2007,
answer due 9/27/2007; Adan Tejada served on 9/7/2007, answer due
9/27/2007; Tom Klatt served on 9/7/2007, answer due 9/27/2007;
Constance Peppers Celaya served on 9/7/2007, answer due 9/27/2007;
Rockridge Manor Condominium served on 9/7/2007, answer due 9/27/2007;
Rockridge Manor Homeowners Asso served on 9/7/2007, answer due
9/27/2007; Rockridge Manor Board of Directors served on 9/7/2007,
answer due 9/27/2007; Charles Blakeney served on 9/7/2007, answer due
9/27/2007; Eva Ammann served on 9/7/2007, answer due 9/27/2007; Truck
Insurance Exchange served on 9/7/2007, answer due 9/27/2007;
University of California Berkeley served on 9/7/2007, answer due
9/27/2007. (slh, COURT STAFF) (Filed on 9/26/2007) (Entered:
10/01/2007)
10/05/2007 5 MOTION for Default Judgment as to defendant Rockridge
Manor Homeowners Asso filed by Christine Chang. (slh, COURT STAFF)
(Filed on 10/5/2007) (Entered: 10/09/2007)
10/05/2007 6 MOTION for Default Judgment as to defendant Rockridge
Manor Board of Directors filed by Christine Chang. (slh, COURT STAFF)
(Filed on 10/5/2007) (Entered: 10/09/2007)
10/05/2007 7 MOTION for Default Judgment as to defendant Rockridge
Manor President of Board of Directors Charles Blakeney filed by
Christine Chang. (slh, COURT STAFF) (Filed on 10/5/2007) (Entered:
10/09/2007)
10/05/2007 8 MOTION for Default Judgment as to defendant Rockridge
Manor Manager Eva Ammann filed by Christine Chang. (slh, COURT STAFF)
(Filed on 10/5/2007) (Entered: 10/09/2007)
10/05/2007 9 MOTION for Default Judgment as to defendant Truck
Insurance Exchange filed by Christine Chang. (slh, COURT STAFF) (Filed
on 10/5/2007) (Entered: 10/09/2007)
10/05/2007 10 MOTION for Default Judgment as to defendant University
of California Berkeley filed by Christine Chang. (slh, COURT STAFF)
(Filed on 10/5/2007) (Entered: 10/09/2007)
10/05/2007 11 MOTION for Default Judgment as to defendant University
of California Berkeley Chancellor Robert Birgeneau filed by Christine
Chang. (slh, COURT STAFF) (Filed on 10/5/2007) (Entered: 10/09/2007)
10/05/2007 12 MOTION for Default Judgment as to defendant University
of California Berkeley Public Records Coordinator Alan Kolling filed
by Christine Chang. (slh, COURT STAFF) (Filed on 10/5/2007) (Entered:
10/09/2007)
10/05/2007 13 MOTION for Default Judgment as to defendant University
of California Berkeley Police Department Chief Victoria Harrison filed
by Christine Chang. (slh, COURT STAFF) (Filed on 10/5/2007) (Entered:
10/09/2007)
10/05/2007 14 MOTION for Default Judgment as to defendant University
of California Berkeley Police Department Lieutenant Adan Tejada filed
by Christine Chang. (slh, COURT STAFF) (Filed on 10/5/2007) (Entered:
10/09/2007)
10/05/2007 15 MOTION for Default Judgment as to defendant University
of California Berkeley Police Department Manager Tom Klatt filed by
Christine Chang. (slh, COURT STAFF) (Filed on 10/5/2007) (Entered:
10/09/2007)
10/05/2007 16 MOTION for Default Judgment as to defendant University
of California Berkeley Police Department Dispatcher Constance Celaya
filed by Christine Chang. (slh, COURT STAFF) (Filed on 10/5/2007)
(Entered: 10/09/2007)
10/10/2007 17 First MOTION to Dismiss for Lack of Jurisdiction and
failure to state claim filed by Albert Coombes. Motion Hearing set for
11/28/2007 10:30 AM in Courtroom C, 15th Floor, San Francisco.
(Coombes, Albert) (Filed on 10/10/2007) (Entered: 10/10/2007)
10/17/2007 18 MOTION to Set Aside Default /Application for Relief
from Default/Opposition to Motion for Default Judgment and Leave to
File Motion to Dimisss filed by Robert Birgeneau, Alan Kolling, Susan
Von Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt, Constance
Peppers Celaya, The Regents of the University of California. Motion
Hearing set for 11/28/2007 10:30 AM in Courtroom C, 15th Floor, San
Francisco. (Conant, Gaylynn) (Filed on 10/17/2007) Modified on
10/18/2007 (ewn, COURT STAFF). (Entered: 10/17/2007)
10/17/2007 19 MEMORANDUM in Support re 18 MOTION to Set Aside
Default /Application for Relief from Default/Opposition to Motion for
Default Judgment and Leave to File Motion to Dimisss filed byThe
Regents of the University of California, Robert Birgeneau, Alan
Kolling, Susan Von Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt,
Constance Peppers Celaya. (Related document(s) 18 ) (Conant, Gaylynn)
(Filed on 10/17/2007) (Entered: 10/17/2007)
10/17/2007 20 Declaration of GayLynn Kirn Conant in Support of Motion/
Application for Relief from Default filed byRobert Birgeneau, Alan
Kolling, Susan Von Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt,
Constance Peppers Celaya, The Regents of the University of California.
(Conant, Gaylynn) (Filed on 10/17/2007) (Entered: 10/17/2007)
10/17/2007 21 Declaration of Constance Peppers Celaya in Support of
Application for Relief from Default filed byRobert Birgeneau, Alan
Kolling, Susan Von Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt,
Constance Peppers Celaya, The Regents of the University of California.
(Conant, Gaylynn) (Filed on 10/17/2007) (Entered: 10/17/2007)
10/17/2007 22 Declaration of Tejada in Support of 18 MOTION to Set
Aside Default /Application for Relief from Default/Opposition to
Motion for Default Judgment and Leave to File Motion to Dimisss filed
byRobert Birgeneau, Alan Kolling, Susan Von Seeburg, Victoria
Harrison, Adan Tejada, Tom Klatt, Constance Peppers Celaya, The
Regents of the University of California. (Related document(s) 18 )
(Conant, Gaylynn) (Filed on 10/17/2007) (Entered: 10/17/2007)
10/17/2007 23 Declaration of Tom Klatt in Support of 18 MOTION to Set
Aside Default /Application for Relief from Default/Opposition to
Motion for Default Judgment and Leave to File Motion to Dimisss filed
byRobert Birgeneau, Alan Kolling, Susan Von Seeburg, Victoria
Harrison, Adan Tejada, Tom Klatt, Constance Peppers Celaya, The
Regents of the University of California. (Related document(s) 18 )
(Conant, Gaylynn) (Filed on 10/17/2007) (Entered: 10/17/2007)
10/17/2007 24 Declaration of Susan Von Seeburg in Support of 18
MOTION to Set Aside Default /Application for Relief from Default/
Opposition to Motion for Default Judgment and Leave to File Motion to
Dimisss filed byRobert Birgeneau, Alan Kolling, Susan Von Seeburg,
Victoria Harrison, Adan Tejada, Tom Klatt, Constance Peppers Celaya,
The Regents of the University of California. (Related document(s) 18 )
(Conant, Gaylynn) (Filed on 10/17/2007) (Entered: 10/17/2007)
10/17/2007 25 Declaration of Jim Taylor in Support of 18 MOTION to
Set Aside Default /Application for Relief from Default/Opposition to
Motion for Default Judgment and Leave to File Motion to Dimisss filed
byRobert Birgeneau, Alan Kolling, Susan Von Seeburg, Victoria
Harrison, Adan Tejada, Tom Klatt, Constance Peppers Celaya, The
Regents of the University of California. (Related document(s) 18 )
(Conant, Gaylynn) (Filed on 10/17/2007) (Entered: 10/17/2007)
10/17/2007 26 Proposed Order re 18 MOTION to Set Aside Default /
Application for Relief from Default/Opposition to Motion for Default
Judgment and Leave to File Motion to Dimisss by Robert Birgeneau, Alan
Kolling, Susan Von Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt,
Constance Peppers Celaya, The Regents of the University of California.
(Conant, Gaylynn) (Filed on 10/17/2007) (Entered: 10/17/2007)
10/17/2007 27 CERTIFICATE OF SERVICE by Robert Birgeneau, Alan
Kolling, Susan Von Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt,
Constance Peppers Celaya, The Regents of the University of California
re 18 MOTION to Set Aside Default /Application for Relief from Default/
Opposition to Motion for Default Judgment and Leave to File Motion to
Dimisss (Conant, Gaylynn) (Filed on 10/17/2007) (Entered: 10/17/2007)
10/17/2007 28 MOTION to Dismiss Pursuant to FRCP 12(b)(6) or, in the
Alternative, Motion for More Definite Statement [F.R.C.P. 12(e)[ filed
by Robert Birgeneau, Alan Kolling, Susan Von Seeburg, Victoria
Harrison, Adan Tejada, Tom Klatt, Constance Peppers Celaya, The
Regents of the University of California. Motion Hearing set for
11/28/2007 10:30 AM in Courtroom C, 15th Floor, San Francisco.
(Conant, Gaylynn) (Filed on 10/17/2007) (Entered: 10/17/2007)
10/17/2007 29 MEMORANDUM in Support of Motion to Dismiss filed
byRobert Birgeneau, Alan Kolling, Susan Von Seeburg, Victoria
Harrison, Adan Tejada, Tom Klatt, Constance Peppers Celaya, The
Regents of the University of California. (Related document(s) 28 )
(Conant, Gaylynn) (Filed on 10/17/2007) (Entered: 10/17/2007)
10/17/2007 30 Request for Judicial Notice in Support of Defendants
Motion to Dismiss filed byRobert Birgeneau, Alan Kolling, Susan Von
Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt, Constance Peppers
Celaya, The Regents of the University of California. (Related document
(s) 28 ) (Conant, Gaylynn) (Filed on 10/17/2007) (Entered: 10/17/2007)
10/17/2007 31 Proposed Order Granting Defendants' Motion to Dismiss
by Robert Birgeneau, Alan Kolling, Susan Von Seeburg, Victoria
Harrison, Adan Tejada, Tom Klatt, Constance Peppers Celaya, The
Regents of the University of California. (Conant, Gaylynn) (Filed on
10/17/2007) (Entered: 10/17/2007)
10/17/2007 32 CERTIFICATE OF SERVICE by Robert Birgeneau, Alan
Kolling, Susan Von Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt,
Constance Peppers Celaya, The Regents of the University of California
re Motion to Dismiss (Conant, Gaylynn) (Filed on 10/17/2007) (Entered:
10/17/2007)
10/18/2007 33 CONSENT to Proceed Before a US Magistrate Judge by
Robert Birgeneau, Alan Kolling, Susan Von Seeburg, Victoria Harrison,
Adan Tejada, Tom Klatt, Constance Peppers Celaya, The Regents of the
University of California.. (Conant, Gaylynn) (Filed on 10/18/2007)
(Entered: 10/18/2007)
10/18/2007 34 CONSENT to Proceed Before a US Magistrate Judge by
Albert Coombes.. (Coombes, Albert) (Filed on 10/18/2007) (Entered:
10/18/2007)
10/18/2007 35 CERTIFICATE OF SERVICE by Albert Coombes re 34 Consent
to Proceed Before a US Magistrate Judge (Coombes, Albert) (Filed on
10/18/2007) (Entered: 10/18/2007)
10/18/2007 36 CERTIFICATE OF SERVICE by Christine Chang re 15 MOTION
for Default Judgment as to, 12 MOTION for Default Judgment as to, 8
MOTION for Default Judgment as to, 14 MOTION for Default Judgment as
to, 16 MOTION for Default Judgment as to, 9 MOTION for Default
Judgment as to, 5 MOTION for Default Judgment as to, 13 MOTION for
Default Judgment as to, 6 MOTION for Default Judgment as to, 11 MOTION
for Default Judgment as to, 7 MOTION for Default Judgment as to, 10
MOTION for Default Judgment as to (slh, COURT STAFF) (Filed on
10/18/2007) (Entered: 10/23/2007)
10/25/2007 37 ADR Clerks Notice re: Non-Compliance with Court Order.
(tjs, COURT STAFF) (Filed on 10/25/2007) (Entered: 10/25/2007)
10/25/2007 38 ADR Certification (ADR L.R. 3-5b) of discussion of ADR
options (Conant, Gaylynn) (Filed on 10/25/2007) (Entered: 10/25/2007)
10/25/2007 39 NOTICE of need for ADR Phone Conference (ADR L.R. 3-5
d) (Conant, Gaylynn) (Filed on 10/25/2007) (Entered: 10/25/2007)
10/25/2007 40 ADR Certification (ADR L.R. 3-5b) of discussion of ADR
options (Coombes, Albert) (Filed on 10/25/2007) (Entered: 10/25/2007)
10/29/2007 41 CASE MANAGEMENT STATEMENT (Separate) filed by Albert
Coombes. (Coombes, Albert) (Filed on 10/29/2007) (Entered: 10/29/2007)
10/29/2007 42 CERTIFICATE OF SERVICE by Albert Coombes re 41 Case
Management Statement (Coombes, Albert) (Filed on 10/29/2007) (Entered:
10/29/2007)
10/31/2007 43 CASE MANAGEMENT STATEMENT filed by Robert Birgeneau,
Alan Kolling, Susan Von Seeburg, Victoria Harrison, Adan Tejada, Tom
Klatt, Constance Peppers Celaya, The Regents of the University of
California. (Conant, Gaylynn) (Filed on 10/31/2007) (Entered:
10/31/2007)
10/31/2007 44 CERTIFICATE OF SERVICE by Robert Birgeneau, Alan
Kolling, Susan Von Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt,
Constance Peppers Celaya, The Regents of the University of California
re 43 Case Management Statement (Conant, Gaylynn) (Filed on
10/31/2007) (Entered: 10/31/2007)
10/31/2007 48 Memorandum in Opposition re defendant's 28 Motion to
Dismiss filed by Christine Chang. (slh, COURT STAFF) (Filed on
10/31/2007) (Entered: 11/02/2007)
10/31/2007 49 EXHIBITS to 48 Memorandum in Opposition filed by
Christine Chang. (Related document(s) 48 ) (slh, COURT STAFF) (Filed
on 10/31/2007) (Entered: 11/02/2007)
11/01/2007 45 CASE MANAGEMENT STATEMENT filed by Pamela Zimba.
(Adler, Andrew) (Filed on 11/1/2007) (Entered: 11/01/2007)
11/01/2007 46 CONSENT to Proceed Before a US Magistrate Judge by
Pamela Zimba.. (Adler, Andrew) (Filed on 11/1/2007) (Entered:
11/01/2007)
11/01/2007 47 CLERK'S NOTICE of Impending Reassignment to U.S.
District Judge (bpf, COURT STAFF) (Filed on 11/1/2007) (Entered:
11/01/2007)
11/02/2007 50 CONSENT to Proceed Before a US Magistrate Judge by
Rockridge Manor Condominium, Rockridge Manor Homeowners Asso,
Rockridge Manor Board of Directors, Charles Blakeney.. (Allman, Sara)
(Filed on 11/2/2007) (Entered: 11/02/2007)
11/02/2007 51 MOTION to Shorten Time filed by Rockridge Manor
Condominium, Rockridge Manor Homeowners Asso, Rockridge Manor Board of
Directors, Charles Blakeney. (Allman, Sara) (Filed on 11/2/2007)
(Entered: 11/02/2007)
11/02/2007 52 Proposed Order by Rockridge Manor Condominium,
Rockridge Manor Homeowners Asso, Rockridge Manor Board of Directors,
Charles Blakeney. (Allman, Sara) (Filed on 11/2/2007) (Entered:
11/02/2007)
11/02/2007 53 MOTION to Set Aside Default filed by Rockridge Manor
Condominium, Rockridge Manor Homeowners Asso, Rockridge Manor Board of
Directors, Charles Blakeney. (Allman, Sara) (Filed on 11/2/2007)
(Entered: 11/02/2007)
11/02/2007 54 MEMORANDUM in Support filed byRockridge Manor
Condominium, Rockridge Manor Homeowners Asso, Rockridge Manor Board of
Directors, Charles Blakeney. (Allman, Sara) (Filed on 11/2/2007)
(Entered: 11/02/2007)
11/02/2007 55 Declaration of Paul A. Conroy in Support of Motion for
Relief From Default filed byRockridge Manor Condominium, Rockridge
Manor Homeowners Asso, Rockridge Manor Board of Directors, Charles
Blakeney. (Allman, Sara) (Filed on 11/2/2007) (Entered: 11/02/2007)
11/02/2007 56 Declaration of Adelio Zunino in Support of Motion for
Relief from Default filed byRockridge Manor Condominium, Rockridge
Manor Homeowners Asso, Rockridge Manor Board of Directors, Charles
Blakeney. (Allman, Sara) (Filed on 11/2/2007) (Entered: 11/02/2007)
11/02/2007 57 Declaration of Charles Blakeney in Support of Motion
for Relief From Default filed byRockridge Manor Condominium, Rockridge
Manor Homeowners Asso, Rockridge Manor Board of Directors, Charles
Blakeney. (Allman, Sara) (Filed on 11/2/2007) (Entered: 11/02/2007)
11/02/2007 58 Declaration of Scott Halbrook in Support of Motion for
Relief From Default filed byRockridge Manor Condominium, Rockridge
Manor Homeowners Asso, Rockridge Manor Board of Directors, Charles
Blakeney. (Allman, Sara) (Filed on 11/2/2007) (Entered: 11/02/2007)
11/02/2007 59 MOTION for Summary Judgment filed by Rockridge Manor
Homeowners Asso. (Allman, Sara) (Filed on 11/2/2007) (Entered:
11/02/2007)
11/02/2007 60 MEMORANDUM in Support re 59 MOTION for Summary Judgment
filed byRockridge Manor Homeowners Asso. (Related document(s) 59 )
(Allman, Sara) (Filed on 11/2/2007) (Entered: 11/02/2007)
11/02/2007 61 Declaration of Paul A. Conroy in Support of 59 MOTION
for Summary Judgment, 60 Memorandum in Support filed byRockridge Manor
Homeowners Asso. (Related document(s) 59 , 60 ) (Allman, Sara) (Filed
on 11/2/2007) (Entered: 11/02/2007)
11/02/2007 62 Request for Judicial Notice in Support of Motion for
Summary Judgment filed byRockridge Manor Homeowners Asso. (Allman,
Sara) (Filed on 11/2/2007) (Entered: 11/02/2007)
11/02/2007 63 MOTION to Dismiss filed by Rockridge Manor Homeowners
Asso. (Allman, Sara) (Filed on 11/2/2007) (Entered: 11/02/2007)
11/02/2007 64 MEMORANDUM in Support of Motion to Dismiss filed
byRockridge Manor Homeowners Asso. (Allman, Sara) (Filed on 11/2/2007)
(Entered: 11/02/2007)
11/05/2007 65 CERTIFICATE OF SERVICE by Rockridge Manor Condominium,
Rockridge Manor Homeowners Asso, Rockridge Manor Board of Directors,
Charles Blakeney Amended Proof of Service (Allman, Sara) (Filed on
11/5/2007) (Entered: 11/05/2007)
11/05/2007 66 CLERK'S NOTICE Case Management Conference set for
11/14/2007 01:30 PM. Case Management Statement due by 11/9/2007. (bpf,
COURT STAFF) (Filed on 11/5/2007) (Entered: 11/05/2007)
11/05/2007 67 MOTION to Dismiss Notice of Motion and Motion to
Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted
and for a More Definitive Statement filed by Pamela Zimba. (Swerdlow,
Alan) (Filed on 11/5/2007) (Entered: 11/05/2007)
11/05/2007 68 Declaration of Andrew J. Adler in Support of 67 MOTION
to Dismiss Notice of Motion and Motion to Dismiss for Failure to State
a Claim Upon Which Relief Can Be Granted and for a More Definitive
Statement filed byPamela Zimba. (Attachments: # 1 Exhibit Exhibit 1# 2
Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4)(Related
document(s) 67 ) (Swerdlow, Alan) (Filed on 11/5/2007) (Entered:
11/05/2007)
11/05/2007 69 Proposed Order Granting Motion to Dismiss by Pamela
Zimba. (Swerdlow, Alan) (Filed on 11/5/2007) (Entered: 11/05/2007)
11/05/2007 70 Request for Judicial Notice In Support of Motion to
Dismiss for More Definite Statement filed byPamela Zimba. (Swerdlow,
Alan) (Filed on 11/5/2007) (Entered: 11/05/2007)
11/05/2007 71 Proposed Order On Request for Judicial Notice In
Support of Motion to Dismiss for Failure to State a Claim and For More
Definite Statement by Pamela Zimba. (Swerdlow, Alan) (Filed on
11/5/2007) (Entered: 11/05/2007)
11/05/2007 72 CERTIFICATE OF SERVICE by Pamela Zimba (Swerdlow, Alan)
(Filed on 11/5/2007) (Entered: 11/05/2007)
11/05/2007 73 Memorandum in Opposition re defendant Albert Coombes'
17 MOTION to Dismiss filed by Christine Chang. (slh, COURT STAFF)
(Filed on 11/5/2007) (Entered: 11/06/2007)
11/05/2007 74 MOTION to Appoint Guardian ad Litem filed by Christine
Chang. Motion Hearing set for 11/28/2007 10:30 AM. (slh, COURT STAFF)
(Filed on 11/5/2007) (Entered: 11/06/2007)
11/08/2007 76 CONSENT to Proceed Before a US Magistrate Judge by
Truck Insurance Exchange. (slh, COURT STAFF) (Filed on 11/8/2007)
(Entered: 11/09/2007)
11/09/2007 75 CASE MANAGEMENT STATEMENT Defendants Case Management
Conference Statement filed by Rockridge Manor Condominium, Rockridge
Manor Homeowners Asso, Rockridge Manor Board of Directors, Charles
Blakeney. (Allman, Sara) (Filed on 11/9/2007) (Entered: 11/09/2007)
11/13/2007 77 STIPULATION AND ORDER TO SET ASIDE DEFAULT (As to Truck
Insurance Exchange). Signed by Judge Edward M.Chen on 11/13/07. (bpf,
COURT STAFF) (Filed on 11/13/2007) (Entered: 11/13/2007)
11/13/2007 78 CLERK'S NOTICE Continuing Motion Hearing Motion Hearing
reset for 12/20/2007 09:30 AM in Courtroom C, 15th Floor, San
Francisco. (bpf, COURT STAFF) (Filed on 11/13/2007) (Entered:
11/13/2007)
11/13/2007 79 PLAINTIFF'S CASE MANAGEMENT STATEMENT and Proposed
Hearing Date for Motions filed by Christine Chang. (slh, COURT STAFF)
(Filed on 11/13/2007) (Entered: 11/15/2007)
11/13/2007 Proposed Order granting hearing date and Application for
Guardian Ad Litem submitted by Christine Chang. (slh, COURT STAFF)
(Filed on 11/13/2007) (Entered: 11/15/2007)
11/14/2007 82 CONSENT to Proceed Before a US Magistrate Judge by Eva
Ammann. (slh, COURT STAFF) (Filed on 11/14/2007) (Entered: 11/16/2007)
11/15/2007 80 Minute Entry: Initial Case Management Conference held
on 11/14/2007 before Edward M. Chen. A trial date has not been set. No
formal discovery and no initial disclosures until further order by
this Court. No defaults will be taken at this juncture as all named
defendants have appeared either generally or specially. Plaintiff
shall file an Application to Appoint Counsel for Guardian Ad Litem by
11/26/07. Plaintiff shall have until 12/24/07 to decide whether to
proceed with the application to be appointed with counsel represented
her in her capacity as guardian ad litem, or to withdraw her
application and have Eric Sun dismissed from the case. Case continued
to: 01/16/08 at 10:30 a.m. for various motions. (Date Filed:
11/15/2007). (Tape #1:40-2:06 p.m..) (bpf, COURT STAFF) (Date Filed:
11/15/2007) (Entered: 11/15/2007)
11/15/2007 81 CASE MANAGEMENT SCHEDULING ORDER: Motions Hearing reset
for 1/16/2008 10:30 AM in Courtroom C, 15th Floor, San Francisco..
Signed by Judge Edward M. Chen on 11/15/07. (bpf, COURT STAFF) (Filed
on 11/15/2007) (Entered: 11/15/2007)
11/20/2007 84 SUMMONS Returned Executed by Christine Chang. Pamela
Zimba served on 10/5/2007; Albert Coombes served on 9/26/2007. (slh,
COURT STAFF) (Filed on 11/20/2007) (Entered: 11/27/2007)
11/21/2007 83 MOTION to Appoint Guardian ad Litem filed by Christine
Chang. Motion Hearing set for 1/16/2008 10:30 AM. (slh, COURT STAFF)
(Filed on 11/21/2007) (Entered: 11/27/2007)
11/28/2007 85 ORDER by Judge Edward M. Chen Denying 5 Plaintiffs'
Motion for Default Judgment; Denying 6 Plaintiffs' Motion for Default
Judgment; Denying 7 Plaintiffs' Motion for Default Judgment; Denying 8
Plaintiffs' Motion for Default Judgment; Denying 10 Plaintiffs' Motion
for Default Judgment; Denying 11 Plaintiffs' Motion for Default
Judgment; Denying 12 Plaintiffs' Motion for Default Judgment; Denying
13 Plaintiffs' Motion for Default Judgment; Denying 14 Plaintiffs'
Motion for Default Judgment; Denying 15 Plaintiffs' Motion for Default
Judgment; Denying 16 Plaintiffs' Motion for Default Judgment; and
Finding as Moot 18 Defendants' Motion to Set Aside Default/Default
Judgment; Finding as Moot 53 Defendants' Motion to Set Aside Default/
Default Judgment. (emcsec, COURT STAFF) (Filed on 11/28/2007)
(Entered: 11/28/2007)
11/29/2007 86 ORDER by Judge Edward M. Chen Denying 83 Plaintiffs'
Application/Motion to Appoint Counsel for Guardian Ad Litem. (emcsec,
COURT STAFF) (Filed on 11/29/2007) (Entered: 11/29/2007)
12/05/2007 87 *** FILED IN ERROR. PLEASE REFER TO DOCUMENT 88 . ***
First MOTION to Dismiss Plaintiff's Complaint filed by Truck Insurance
Exchange. Motion Hearing set for 1/16/2008 10:30 AM in Courtroom C,
15th Floor, San Francisco. (Baum, Richard) (Filed on 12/5/2007)
Modified on 12/5/2007 (feriab, COURT STAFF). (Entered: 12/05/2007)
12/05/2007 88 First MOTION to Dismiss Plaintiff's Complaint filed by
Truck Insurance Exchange. Motion Hearing set for 1/16/2008 10:30 AM in
Courtroom C, 15th Floor, San Francisco. (Attachments: # 1 Memorandum
of Points & Authorities in Support of Motion)(Baum, Richard) (Filed on
12/5/2007) (Entered: 12/05/2007)
12/05/2007 89 Proposed Order re 88 First MOTION to Dismiss
Plaintiff's Complaint by Truck Insurance Exchange. (Baum, Richard)
(Filed on 12/5/2007) (Entered: 12/05/2007)
12/21/2007 90 ORDER. Signed by Judge Edward M. Chen on 12/21/07.
(bpf, COURT STAFF) (Filed on 12/21/2007) (Entered: 12/21/2007)
12/21/2007 96 Letter from Christine Chang re appointment of counsel.
(sv, COURT STAFF) (Filed on 12/21/2007) (Entered: 12/28/2007)
12/26/2007 91 Memorandum in Opposition re 88 First MOTION to Dismiss
Plaintiff's Complaint filed by Christine Chang. (sv, COURT STAFF)
(Filed on 12/26/2007) (Entered: 12/26/2007)
12/26/2007 92 EXHIBITS re 91 Memorandum in Opposition filed
byChristine Chang. (Related document(s) 91 ) (sv, COURT STAFF) (Filed
on 12/26/2007) (Entered: 12/26/2007)
12/26/2007 93 Memorandum in Opposition re 59 MOTION for Summary
Judgment, 63 MOTION to Dismiss filed byChristine Chang. (sv, COURT
STAFF) (Filed on 12/26/2007) (rcs, COURT STAFF). (Entered: 12/26/2007)
12/26/2007 94 Memorandum in Opposition re 67 MOTION to Dismiss Notice
of Motion and Motion to Dismiss for Failure to State a Claim Upon
Which Relief Can Be Granted and for a More Definitive Statement filed
byChristine Chang. (sv, COURT STAFF) (Filed on 12/26/2007) (Entered:
12/26/2007)
12/26/2007 95 MOTION/Application for Reconsideration filed by
Christine Chang. Motion Hearing set for 1/16/2008 10:30 AM. (sv, COURT
STAFF) (Filed on 12/26/2007) (Entered: 12/26/2007)
12/31/2007 97 Reply to Opposition 94 re Motion to Dismiss for Failure
to State a Claim upon which Relief can be Granted or, in the
alternative, for a more definite statement filed by Pamela Zimba.
(Adler, Andrew) (Filed on 12/31/2007) Modified on 1/2/2008 (sv, COURT
STAFF). (Entered: 12/31/2007)
12/31/2007 98 Reply to Opposition 94 and Certificate of Service filed
by Albert Coombes. (Coombes, Albert) (Filed on 12/31/2007) Modified on
1/2/2008 (sv, COURT STAFF). (Entered: 12/31/2007)
01/02/2008 99 Reply Memorandum 63 in Support of Defendants' Motion to
Dismiss filed by Robert Birgeneau, Alan Kolling, Susan Von Seeburg,
Victoria Harrison, Adan Tejada, Tom Klatt, Constance Peppers Celaya,
The Regents of the University of California. (Conant, Gaylynn) (Filed
on 1/2/2008) Modified on 1/3/2008 (sv, COURT STAFF). (Entered:
01/02/2008)
01/02/2008 100 CERTIFICATE OF SERVICE by Robert Birgeneau, Alan
Kolling, Susan Von Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt,
Constance Peppers Celaya, The Regents of the University of California
re 99 Reply Memorandum, in Support of Defendants' Motion to Dismiss
(Conant, Gaylynn) (Filed on 1/2/2008) (Entered: 01/02/2008)
01/02/2008 101 REPLY to Response to Motion to Dismiss filed byTruck
Insurance Exchange. (Attachments: # 1 Supplement Proof of Service)
(Baum, Richard) (Filed on 1/2/2008) (Entered: 01/02/2008)
01/02/2008 102 Reply Memorandum of Points and Authorities in Support
of Defendant Rockridge Manor Homeowners' Association's Motion for
Summary Judgment 59 filed by Rockridge Manor Condominium, Rockridge
Manor Homeowners Asso, Rockridge Manor Board of Directors, Charles
Blakeney. (Allman, Sara) (Filed on 1/2/2008) Modified on 1/3/2008 (sv,
COURT STAFF). (Entered: 01/02/2008)
01/02/2008 103 Reply Memorandum 63 of Points and Authorities in
Support of Defendant Rockridge Manor Homeowners' Association's Motion
to Dismiss filed by Rockridge Manor Condominium, Rockridge Manor
Homeowners Asso, Rockridge Manor Board of Directors, Charles Blakeney.
(Allman, Sara) (Filed on 1/2/2008) Modified on 1/3/2008 (sv, COURT
STAFF). (Entered: 01/02/2008)
01/02/2008 105 MOTION for Reconsideration re appointment of counsel
filed by Christine Chang. (sv, COURT STAFF) (Filed on 1/2/2008)
(Entered: 01/04/2008)
01/03/2008 104 ORDER by Judge Edward M. Chen Denying 95 Plaintiffs'
Application/Motion for Reconsideration to Appoint Counsel for Guardian
Ad Litem. (emcsec, COURT STAFF) (Filed on 1/3/2008) (Entered:
01/03/2008)
01/11/2008 106 *** FILED IN ERROR. PLEASE SEE DOCKET # 107 . ***
NOTICE of Change In Counsel by Andrew Raymond Adler for Defendant
Pamela Zimba (Adler, Andrew) (Filed on 1/11/2008) Modified on
1/14/2008 (ewn, COURT STAFF). (Entered: 01/11/2008)
01/11/2008 107 NOTICE of Change In Counsel by Andrew Raymond Adler
for Defedant Pamela Zimba (Adler, Andrew) (Filed on 1/11/2008)
(Entered: 01/11/2008)
01/16/2008 108 Minute Entry: Motion Hearing held on 1/16/2008 before
Edward M. Chen. Court took matter under submission (Date Filed:
1/16/2008). (Court Reporter Belle Ball.) (bpf, COURT STAFF) (Date
Filed: 1/16/2008) (Entered: 01/16/2008)
01/16/2008 109 SUMMONS Returned Executed by Christine Chang. Eva
Ammann served on 1/16/2008. (slh, COURT STAFF) (Filed on 1/16/2008)
(Entered: 01/22/2008)
02/13/2008 110 ORDER by Judge Edward M. Chen Granting 17 28 63 67 88
Defendants' Motion to Dismiss or, in the Alternative, for a More
Definite Statement; and Granting 59 Defendant's Motion for Summary
Judgment. (emcsec, COURT STAFF) (Filed on 2/13/2008) (Entered:
02/13/2008)
02/20/2008 111 MOTION to Dismiss, MOTION for More Definite Statement
filed by Eva Ammann. (slh, COURT STAFF) (Filed on 2/20/2008) (slh,
COURT STAFF). (Entered: 02/21/2008)
02/20/2008 112 MEMORANDUM OF POINTS AND AUTHORITIES in Support re 111
MOTION to Dismiss, MOTION for More Definite Statement filed by Eva
Ammann. (Related document(s) 111 ) (slh, COURT STAFF) (Filed on
2/20/2008) (slh, COURT STAFF). (Entered: 02/21/2008)
02/20/2008 113 MOTION for Summary Judgment filed by Eva Ammann. (slh,
COURT STAFF) (Filed on 2/20/2008) (slh, COURT STAFF). (Entered:
02/21/2008)
02/20/2008 114 MEMORANDUM OF POINTS AND AUTHORITIES in Support re 113
MOTION for Summary Judgment filed by Eva Ammann. (Related document(s)
113 ) (slh, COURT STAFF) (Filed on 2/20/2008) (slh, COURT STAFF).
(Entered: 02/21/2008)
02/21/2008 115 CLERK'S NOTICE re: Failure to E-File and/or Failure to
Register as an E-Filer re 111 , 112 , 113 , 114 . (slh, COURT STAFF)
(Filed on 2/21/2008) (Entered: 02/21/2008)
02/21/2008 116 JUDGMENT in favor of Defendants Rockridge Manor
Homeowners Association, Rockridge Manor Condominium, Rockridge Manor
Board of Directors, Rockridge Manor President of Board of Directors
Charles Blakeney, and Charles Blakeney ONLY.. Signed by Betty Fong,
Deputy Clerk on 2/21/08. (bpf, COURT STAFF) (Filed on 2/21/2008)
(Entered: 02/21/2008)
02/21/2008 117 AMENDED JUDGMENT in favor of Defendants Rockridge
Manor Homeowners Association, Rockridge Manor Condominium, Rockridge
Manor Board of Directors, Rockridge Manor President of Board of
Directors Charles Blakeney, and Charles Blakeney (only).. Signed by
Betty Fong, Deputy Clerk on 2/21/08. (bpf, COURT STAFF) (Filed on
2/21/2008) (Entered: 02/21/2008)
02/22/2008 118 CLERK'S NOTICE Continuing Motion Hearing Motion
Hearing set for 3/26/2008 10:30 AM in Courtroom C, 15th Floor, San
Francisco. (bpf, COURT STAFF) (Filed on 2/22/2008) (Entered:
02/22/2008)
02/29/2008 119 FIRST AMENDED COMPLAINT against Robert Birgeneau,
Susan Von Seeburg, Victoria Harrison, Adan Tejada, Constance Peppers
Celaya, Pamela Zimba, Albert Coombes, The Regents of the University of
California, Eva Ammann. Filed by Eric Sun, Christine Chang. (slh,
COURT STAFF) (Filed on 2/29/2008) (Entered: 03/06/2008)
02/29/2008 120 MOTION and MEMORANDUM OF POINTS AND AUTHORITIES in
Support to Appoint Counsel for Plaintiff Chang to Serve as Guardian ad
Litem filed by Christine Chang, Eric Sun. Motion Hearing set for
4/23/2008 10:30 AM. (slh, COURT STAFF) (Filed on 2/29/2008) (Entered:
03/06/2008)
02/29/2008 121 Declaration in Support of 120 MOTION to Appoint
Counsel for Plaintiff Chang to Service as Guardian ad Litem filed by
Christine Chang, Eric Sun. (Related document(s) 120 ) (slh, COURT
STAFF) (Filed on 2/29/2008) (Entered: 03/06/2008)
02/29/2008 122 Declaration of Hiawatha Harris, M.D. in Support of 120
MOTION to Appoint Counsel for Plaintiff Chang to Serve as Guardian ad
Litem filed by Christine Chang, Eric Sun. (Related document(s) 120 )
(slh, COURT STAFF) (Filed on 2/29/2008) (Entered: 03/06/2008)
02/29/2008 123 NOTICE OF APPEAL as to 110 Order filed by Christine
Chang, Eric Sun. Filing fee not paid. (slh, COURT STAFF) (Filed on
2/29/2008) (USCA Case No. 08-15539) (Entered: 03/06/2008)
02/29/2008 124 Declaration in Support of 123 Notice of Appeal filed
by Christine Chang, Eric Sun. (Related document(s) 123 ) (slh, COURT
STAFF) (Filed on 2/29/2008) (Entered: 03/06/2008)
03/06/2008 125 Transmission of Notice of Appeal and Docket Sheet to
US Court of Appeals re 123 Notice of Appeal. (slh, COURT STAFF) (Filed
on 3/6/2008) (Additional attachment(s) added on 3/6/2008: # 1 new
appeal) (slh, COURT STAFF). (Entered: 03/06/2008)
03/06/2008 Copy of Notice of Appeal and Docket sheet mailed to all
counsel. (slh, COURT STAFF) (Filed on 3/6/2008) (Entered: 03/06/2008)
03/06/2008 126 Mailed request for payment of docket fee to appellant
(cc to USCA) (slh, COURT STAFF) (Filed on 3/6/2008) (Entered:
03/06/2008)
03/07/2008 127 ORDER by Judge Edward M. Chen denying 120 Motion to
Appoint ad Litem. (bpf, COURT STAFF) (Filed on 3/7/2008) (Entered:
03/07/2008)
03/07/2008 128 MOTION for Reconsideration filed by Christine Chang.
Motion Hearing set for 4/23/2008 10:30 AM. (slh, COURT STAFF) (Filed
on 3/7/2008) (Entered: 03/10/2008)
03/11/2008 129 ORDER by Judge Edward M. Chen denying 128 Motion for
Reconsideration re 123 Notice of Appeal filed by Eric Sun, Christine
Chang, 128 MOTION for Reconsideration filed by Christine Chang (bpf,
COURT STAFF) (Filed on 3/11/2008) (Entered: 03/11/2008)
03/12/2008 Certified copy of 129 Order sent to USCA. (slh, COURT
STAFF) (Filed on 3/12/2008) (Entered: 03/12/2008)
03/14/2008 132 TRANSCRIPT of Proceedings held on 1/16/08 before Judge
Chen. Court Reporter: Belle Ball. (slh, COURT STAFF) (Filed on
3/14/2008) (Entered: 03/17/2008)
03/17/2008 130 Second MOTION to Dismiss filed by Albert Coombes.
Motion Hearing set for 4/22/2008 10:30 AM in Courtroom C, 15th Floor,
San Francisco. (Coombes, Albert) (Filed on 3/17/2008) (Entered:
03/17/2008)
03/17/2008 131 MOTION to Dismiss Pursuant to FRCP 12(b)(6) or, in the
Alternative, Motion for Summary Judgment [F.R.C.P. 56] filed by Robert
Birgeneau, Alan Kolling, Susan Von Seeburg, Victoria Harrison, Adan
Tejada, Tom Klatt, Constance Peppers Celaya, The Regents of the
University of California. Motion Hearing set for 4/23/2008 10:30 AM in
Courtroom C, 15th Floor, San Francisco. (Conant, Gaylynn) (Filed on
3/17/2008) (Entered: 03/17/2008)
03/17/2008 133 ORDER re briefing schedule re 111 MOTION to Dismiss
MOTION for More Definite Statement filed by Eva Ammann, 113 MOTION for
Summary Judgment filed by Eva Ammann. Signed by Judge Edward M. Chen
on 3/17/08. (bpf, COURT STAFF) (Filed on 3/17/2008) (Entered:
03/17/2008)
03/17/2008 134 USCA Case Number 08-15539 for 123 Notice of Appeal.
(slh, COURT STAFF) (Filed on 3/17/2008) (Entered: 03/17/2008)
03/17/2008 135 Proposed Order re 130 Second MOTION to Dismiss by
Albert Coombes. (Coombes, Albert) (Filed on 3/17/2008) (Entered:
03/17/2008)
03/17/2008 136 MEMORANDUM OF POINTS AND AUTHORITIES in Support re 131
MOTION to Dismiss Pursuant to FRCP 12(b)(6) or, in the Alternative,
Motion for Summary Judgment [F.R.C.P. 56] MOTION to Dismiss Pursuant
to FRCP 12(b)(6) or, in the Alternative, Motion for Summary Judgment
[F.R.C.P. 56] by Robert Birgeneau, Alan Kolling, Susan Von Seeburg,
Victoria Harrison, Adan Tejada, Tom Klatt, Constance Peppers Celaya,
The Regents of the University of California (Conant, Gaylynn) (Filed
on 3/17/2008) Modified on 3/19/2008 (slh, COURT STAFF). (Entered:
03/17/2008)
03/17/2008 137 CERTIFICATE OF SERVICE by Albert Coombes re 135
Proposed Order Granting Defendant's Motion to Dismiss Plaintiffs'
First Amended Complaint (Coombes, Albert) (Filed on 3/17/2008)
(Entered: 03/17/2008)
03/17/2008 138 Declaration of Constance Peppers Celaya in Support of
131 MOTION to Dismiss Pursuant to FRCP 12(b)(6) or, in the
Alternative, Motion for Summary Judgment [F.R.C.P. 56] MOTION to
Dismiss Pursuant to FRCP 12(b)(6) or, in the Alternative, Motion for
Summary Judgment [F.R.C.P. 56] filed byRobert Birgeneau, Alan Kolling,
Susan Von Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt,
Constance Peppers Celaya, The Regents of the University of California.
(Related document(s) 131 ) (Conant, Gaylynn) (Filed on 3/17/2008)
(Entered: 03/17/2008)
03/17/2008 139 Declaration of Victoria Harrison in Support of 131
MOTION to Dismiss Pursuant to FRCP 12(b)(6) or, in the Alternative,
Motion for Summary Judgment [F.R.C.P. 56] MOTION to Dismiss Pursuant
to FRCP 12(b)(6) or, in the Alternative, Motion for Summary Judgment
[F.R.C.P. 56] filed byRobert Birgeneau, Alan Kolling, Susan Von
Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt, Constance Peppers
Celaya, The Regents of the University of California. (Related document
(s) 131 ) (Conant, Gaylynn) (Filed on 3/17/2008) (Entered: 03/17/2008)
03/17/2008 140 Declaration of Susan Von Seeburg in Support of 131
MOTION to Dismiss Pursuant to FRCP 12(b)(6) or, in the Alternative,
Motion for Summary Judgment [F.R.C.P. 56] MOTION to Dismiss Pursuant
to FRCP 12(b)(6) or, in the Alternative, Motion for Summary Judgment
[F.R.C.P. 56] filed byRobert Birgeneau, Alan Kolling, Susan Von
Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt, Constance Peppers
Celaya, The Regents of the University of California. (Related document
(s) 131 ) (Conant, Gaylynn) (Filed on 3/17/2008) (Entered: 03/17/2008)
03/17/2008 141 Declaration of Adan Tejada in Support of 131 MOTION to
Dismiss Pursuant to FRCP 12(b)(6) or, in the Alternative, Motion for
Summary Judgment [F.R.C.P. 56] MOTION to Dismiss Pursuant to FRCP 12(b)
(6) or, in the Alternative, Motion for Summary Judgment [F.R.C.P. 56]
filed byRobert Birgeneau, Alan Kolling, Susan Von Seeburg, Victoria
Harrison, Adan Tejada, Tom Klatt, Constance Peppers Celaya, The
Regents of the University of California. (Related document(s) 131 )
(Conant, Gaylynn) (Filed on 3/17/2008) (Entered: 03/17/2008)
03/17/2008 142 Proposed Order re 131 MOTION to Dismiss Pursuant to
FRCP 12(b)(6) or, in the Alternative, Motion for Summary Judgment
[F.R.C.P. 56] MOTION to Dismiss Pursuant to FRCP 12(b)(6) or, in the
Alternative, Motion for Summary Judgment [F.R.C.P. 56] by Robert
Birgeneau, Alan Kolling, Susan Von Seeburg, Victoria Harrison, Adan
Tejada, Tom Klatt, Constance Peppers Celaya, The Regents of the
University of California. (Conant, Gaylynn) (Filed on 3/17/2008)
(Entered: 03/17/2008)
03/17/2008 143 CERTIFICATE OF SERVICE by Robert Birgeneau, Alan
Kolling, Susan Von Seeburg, Victoria Harrison, Adan Tejada, Tom Klatt,
Constance Peppers Celaya, The Regents of the University of California
re 131 MOTION to Dismiss Pursuant to FRCP 12(b)(6) or, in the
Alternative, Motion for Summary Judgment [F.R.C.P. 56] MOTION to
Dismiss Pursuant to FRCP 12(b)(6) or, in the Alternative, Motion for
Summary Judgment [F.R.C.P. 56] (Conant, Gaylynn) (Filed on 3/17/2008)
(Entered: 03/17/2008)
03/18/2008 144 CLERK'S NOTICE Continuing Motion Hearing Motion
Hearing set for 4/30/2008 10:30 AM in Courtroom C, 15th Floor, San
Francisco. (bpf, COURT STAFF) (Filed on 3/18/2008) (Entered:
03/18/2008)
03/20/2008 145 MOTION to Dismiss filed by Pamela Zimba. Motion
Hearing set for 5/14/2008 02:30 PM in Courtroom C, 15th Floor, San
Francisco. (Adler, Andrew) (Filed on 3/20/2008) (Entered: 03/20/2008)
03/20/2008 146 MEMORANDUM of Points and Authorities in support re 145
MOTION to Dismiss by Pamela Zimba (Adler, Andrew) (Filed on 3/20/2008)
Modified on 4/9/2008 (slh, COURT STAFF). (Entered: 03/20/2008)
03/20/2008 147 Proposed Order re 145 MOTION to Dismiss by Pamela
Zimba (Adler, Andrew) (Filed on 3/20/2008) Modified on 4/9/2008 (slh,
COURT STAFF). (Entered: 03/20/2008)
03/24/2008 150 Declaration re Late Service of defendant Eva Ammann's
Motion to Dismiss and Summary Judgment filed by Christine Chang. (slh,
COURT STAFF) (Filed on 3/24/2008) (Entered: 03/25/2008)
03/24/2008 151 MOTION for Recusal filed by Christine Chang. (slh,
COURT STAFF) (Filed on 3/24/2008) (Entered: 03/25/2008)
03/24/2008 152 AFFIDAVIT in Support re 151 MOTION for Recusal by
Christine Chang. (slh, COURT STAFF) (Filed on 3/24/2008) (Entered:
03/25/2008)
copyright
NORTHERN DISTRICT OF CALIFORNIA
NETBULA, LLC, a Delaware limited liability company,
Plaintiff,
vs.
BINDVIEW DEVELOPMENT CORPORATION, a Texas Corporation, SYMANTEC
CORPORATION, a Delaware Corporation, ERIC J. PULASKI, an individual,
and DOES 1-10, inclusive,
Defendants.
Case No.: C-06-0711-MJJ
PLAINTIFF NETBULA, LLC’S MOTION FOR LEAVE TO FILE MOTION FOR
RECONSIDERATION OR PERMISSION TO APPEAL AND TO STAY ENTRY OF JUDGMENT
PENDING APPEAL
Date:
Time:
Dept: Courtroom 11
Judge: The Honorable Martin J. Jenkins
INTRODUCTION.. - 4 -
STATEMENT OF ISSUES. - 4 -
STATEMENT OF FACTS. - 6 -
ARGUMENT.. - 12 -
ISSUES ON CLAIMS NOT ADJUDICATED.. - 12 -
Issue 1: The allegation that BindView made unauthorized copies of the
Netbula RPC SDK in developing the bv-CIS software was not addressed by
the Defendants or the Court Order. - 12 -
ISSUES ON THE LICENSE DEFENSE.. - 14 -
Issue 2: Whether BindView’s development of the bv-Control for Internet
Security (“bv-CIS”), which was developed with Netbula ONC RPC SDK,
constituted a transfer of the Netect, Inc. license from Netect, Inc.
to BindView.. - 15 -
Issue 3: Whether the one distribution license (which Plaintiff
contends was non-exclusive and subject to limitations) for Netbula’s
runtime library which Netect, Inc. purchased in July 1998 was legally
transferred to its parent company Netect, Ltd, which sold all of its
stock to BindView in 1999. - 17 -
Issue 4: Whether BindView’s distribution of the bv-Control for
Internet Security (“bv-CIS”), which contained “pwrpc32.dll”, was done
with a distribution license. - 17 -
Issue 5: Whether the Symantec-Buena Vista Acquisition Corp-BindView
reverse triangular merger allowed Symantec to legally acquire the
licenses originally granted to Netect, Inc.. - 18 -
Issue 6: Whether a copyright owner’s burden in proving that a
copyright defendant exceeded the scope of a copyright license in a
copyright infringement action leads to the conclusion that the
copyright owner has the burden to prove the scope or terms of the
copyright license itself - 19 -
Issue 7: Whether copyright owner has the burden to prove that a
copyright defendant has assented to the restrictions of a copyright
license in an infringement action. - 21 -
Issue 8: Whether Plaintiff should have been allowed additional
discovery on the Netect licenses. - 22 -
ISSUES ON THE FRAUD AND CONTRACT CLAIMS. - 23 -
Issue 9: Whether BindView promised to Netbula on November 7, 2005 that
it would pay a reasonable amount of license fee for each copy of
Netbula software BindView made or authorized others to make. - 23 -
Issue 10: Whether BindView refused to provide a complete license usage
report and pay royalties and interests. - 24 -
ALTERNATIVE MOTION FOR STAY JUDGMENT PENDING APPEAL.. - 26 -
CONCLUSION.. - 27 -
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE that Plaintiff Netbula, LLC, pursuant to Civil
Local Rule 7-9, hereby does move for leave to file a Motion for
Reconsideration on the Court’s Order granting Defendants’ motions for
summary judgment. In the alternative, Plaintiff moves for a stay of
entry of judgment and permission to appeal the Order. Plaintiff’s
Motion is based on this Notice of Motion and Motion, and the Proposed
Order, all of which the Plaintiff files concurrently, and upon such
other matters as may be presented to the Court.
INTRODUCTION
The Court entered an order on September 10, 2007 granting
Defendants’ motions for summary judgment on all claims. Docket No. 288
(“the Order”). Plaintiff believes that the Order did not consider many
of the facts or did not consider the facts in a light most favorable
to the Plaintiff. For instance, the allegation in the First Amended
Complaint (“FAC”) that Defendants made unauthorized copies of the
Netbula ONC RPC SDK was not addressed by the Order. Plaintiff further
believes that the Order did not consider some of Plaintiff’s valid
legal arguments on its claims. Moreover, since the Court finds the
terms of the license a deciding factor in the case, and since
Plaintiff had been previously denied the opportunity to conduct
further discovery on Netect, justice requires that Plaintiff be
allowed additional discovery on Netect than outright dismissal of the
Plaintiff’s claims. Plaintiff thus moves for leave to file a motion
for reconsideration.
In the alternative, Plaintiff requests the Court to stay entry
of judgment pending an appeal. Because Plaintiff does not have a
signed license agreements with most of its customers and Defendants
issued unlimited licenses to many of their customers, the Order may
cause irreparable damage to Plaintiff’s software business.
STATEMENT OF ISSUES
Plaintiff presents the following issues for reconsideration.
Issue 1: Whether BindView made unauthorized copies of the
Netbula RPC SDK in developing the bv-CIS software.
Issue 2: Whether BindView’s development of the bv-Control for
Internet Security (“bv-CIS”), which was developed with Netbula ONC RPC
SDK, constituted a transfer of the Netect, Inc. license from Netect,
Inc. to BindView.
Issue 3: Whether the one distribution license (which Plaintiff
contends was non-exclusive and subject to limitations) for Netbula’s
runtime library which Netect, Inc.. purchased in July 1998 was legally
transferred to its parent company Netect, Ltd, which sold all of its
stock to BindView in 1999.
Issue 4: Whether BindView’s distribution of the bv-Control for
Internet Security (“bv-CIS”), which contained “pwrpc32.dll”, was done
with a distribution license.
Issue 5: Whether the Symantec-Buena Vista Acquisition Corp-
BindView reverse triangular merger allowed Symantec to legally acquire
the licenses originally granted to Netect, Inc..
Issue 6: Whether a copyright owner’s burden in proving that a
copyright defendant exceeded the scope of a copyright license in a
copyright infringement action leads to the conclusion that the
copyright owner has the burden to prove the scope or terms of the
copyright license itself.
Issue 7: Whether a copyright owner has the burden to prove that
a copyright defendant has assented to the restrictions of a copyright
license in an infringement action.
Issue 8: Whether Plaintiff should have been allowed additional
discovery on the Netect licenses.
Issue 9: Whether BindView promised Netbula on November 7, 2005
that it would pay a reasonable amount of license fee for each copy of
Netbula software BindView made or authorized others to make.
Issue 10: Whether BindView refused to provide a complete license
usage report and pay royalties and interests.
STATEMENT OF FACTS
Plaintiff Netbula, LLC was formed in July 1996. Joint Statement
of Undisputed Facts (“JSUF”) at ¶1.
Netect LTD was incorporated in July 1996, under the laws of Israel.
JSUF at ¶7.
Netect, Inc.. was incorporated in April 1997, under the laws of
Delaware. It was dissolved on June 15, 2006.
BindView Development Corporation was founded in May 1990, under the
laws of Texas. JSUF at ¶12.
On March 1, 1999 BindView Development Corporation acquired Netect LTD
(“Netect”) by a share purchase. JSUF at ¶ 13. Pulaski Decl, Ex. 1.
(The “Netect” in the 1999 share purchase agreement was “NETECT LTD, an
Israeli Corporation”. See Pulaski Decl, Ex. 1.)
“[O]nly the ownership of Netect’s stock changed, with no assets
conveyed”. Defendants’ Reply in Support of Motion for Summary
Judgment., p.3:23-23, Docket 253. “Netect continued to survive as a
corporation after its stock was acquired by BindView.” Id. at pp.
5:24-6-1.
BindView continued to develop and sell HackerShield after its
acquisition of Netect, and sold the product as bv-Control for Internet
Security or “bv-CIS.” JSUF at ¶15.
BindView’s development of bv-CIS was “handled by developers and
testers employed by the company, primarily in India.” Pulaski
Declaration at 8, Docket 218, p.4:3-10 (emphasis added). According to
Dr. Yue’s testing of the bv-CIS software, bv-CIS made increasingly
more use of Netbula RPC from version 7.10 to version 8.10. Yue Decl at
¶¶94-102, Docket 238, pp.22:12-24:2.
On October 2, 2005, BindView provided Symantec with a disclosure
letter. JSUF at ¶ 21. The disclosure letter was attached as Ex. B,
BV00677-691, to Declaration of Vonnah Brillet (“Brillet Decl”) in
opposition to Defendants’ motion for summary judgment. Page 15
(BV00691) of the BindView disclosure letter states the following:
[[[CONFIDENTIAL MATERIAL REDACTED]]]
Also according to the disclosure letter, as of October 2, 2005,
Netect, Inc.., a Delaware corporation, was a subsidiary of Netect LTD.
Brillet Decl, Ex. B, page 2 of the BindView Disclosure Letter (BV678)
filed under seal.
As of October 2, 2005, BindView India Private Limited,
organized under the laws of India, was a subsidiary of Entevo
Corporation; Entevo Corporation, a subsidiary of BindView Development
Corporation, was a Delaware Corporation. Brillet Decl, Ex. B, page 2
of the BindView Disclosure Letter (BV678).
Throughout the history of Netbula, it only executed a few
signed license agreements with its customers. No written license
agreement between Netbula and Netect, Inc.. has been found. Netbula
has found two backup copies of software that include the name Netect
in the software. There is a match between the back copy of the
software in Netbula’s possession with the name Netect and the software
in BindView’s bv-CIS product. JSUF at ¶¶5, 8 and 9.
The file distributed with BindView’s bv-CIS software contains a
reference to “Netect LTD. Dev License, Non-Distributable”. The
“rpcgen.exe” file in BindView’s possession contains the text “Netect
LTD. One user ONC RPC Dev License.” JSUF at ¶10.
Netbula has found two references to Netect, Inc.. with address
in Boston in its customer list for Netbula RPC software. JSUF at ¶ 8.
The list was attached in Brillet Decl, Ex. A, NB-0000760. The part on
Netect is reproduced in the image below:
The list was in table format with six columns[1]. The columns
are (1) “year-month”, (2) “product name abbreviation”, (3) “license
type”, (4)“operating system type”, (5) “customer name” and (6)
“customer address”. The first line reads: “1998-07”, “PWRPC”,
“LIM_DIS”, “NT/95”, “1”, “212 Northern Ave. Fish Pier, West 1, Ste
300, BOSTON, MA 02210”. The second line reads: “1998-07”, “ONCRPC”,
“SDK”, “NT/95”, “1”, “212 Northern Ave. Fish Pier, West 1, Ste 300,
BOSTON, MA 02210”.
Based on the information above, the parties stipulated that “[i]
n July 1998, Netect Inc. purchased one user development license for
Netbula ONC RPC SDK and one distribution license (both of which
Plaintiff contends were non-exclusive and subject to limitations) for
Netbula’s runtime library.” JSUF at ¶ 7.
On September 28, 2005, Netbula received an email from David
Gayler at BindView, without disclosing that BindView had used Netbula
RPC. In subsequent communications, Mr. Gayler did not disclose that
BindView had used Netbula RPC, but inquired about a company named
Netect. On October 3, 2005, after noticing the news about the Symantec
acquisition of BindView, Yue suspected that BindView had used
PowerRPC. Yue Decl at ¶¶26-29.
From October 3, 2005 to October 18, 2005, Plaintiff sent
multiple requests for BindView to provide license usage information
for Netbula RPC, including “multiple or even unlimited licenses”.
However, as of October 18, 2005, Netbula had not been informed on
which BindView product was using Netbula RPC. JSUF at ¶¶ 22-27.
On October 25, 2005, Jeff Margolis, the BindView Vice President
who led the legal and financial aspect[2] of BindView’s acquisition of
Netect, sent Netbula an email advising Plaintiff that it would need
approximately 680 additional licenses to accommodate any overrun
BindView claimed that Netect had purchased in July 1998. JSUF at ¶ 30.
Brillet Decl, Ex. J, Margolis Depo. p.45:15-21. BindView denied that
it sold site licenses. Yue Decl at ¶36.
On October 26, 2005, D.C. Toedt, BindView’s general counsel,
sent an email to Yue, repeating the same 1680 license usage count and
offered Netbula to accept $24,000 or choose litigation. JSUF at ¶ 32.
Brillet Decl, Ex. A, NB-0000972-5 (D.C. Toedt’s October 26, 2005
email).
Shortly afterwards, Yue found that a large Virginia university
acquired a site license in 1999 or 2000. Yue Decl at ¶42. On November
1, 2005, Yue emailed a lawyer on how soon a lawsuit can be filed
against BindView. On November 2, 2005, Yue sent a letter to Eric J.
Pulaski and John Thompson, stating that BindView’s October 25, 2005
report was untrue and that BindView issued site licenses. JSUF at ¶¶
33-36. The letter also threatened legal action against BindView.
On November 7, 2005, Pulaski telephoned Yue at Netbula. Without
announcing his presence to Yue, D.C. Toedt took notes of the telephone
conversation. According to D.C. Toedt’s notes, Pulaski told Yue: “We
want to reach a reasonable solution – pay the full amount we owed
you.” On how to count site licenses, Pulaski told Yue: “We’ll check on
site licenses – work out some kind of average # of admins”. On
pricing, Toedt’s notes read: “99 -$50 for runtime license”, “prepay –
different price”. More details of Toedt’s notes are in JSUF at ¶ 38.
According to Yue and Pulaski, there were also discussions on BindView
paying interest in the telephone conversation. Yue Decl at ¶53.
Pulaski Depo. pp.25:21-26:1, attached as Ex. F of Brillet Declaration.
Mr. Pulaski testified as follows about the November 7, 2005
telephone conversation:
“I recall telling Don that, you know, first of all, we had no idea
that this stuff was in our code. We had no idea that we were violating
any license agreement. We would be totally open with him about all the
data that we had and if whatever we owed, we wanted -- we'd be happy
to pay plus interest.”
Pulaski Depo. pp.25:21-26:1, Ex. F of Brillet Declaration
On November 8, 2005, BindView filed a definitive proxy
statement with the SEC, which included warranties on intellectual
property and absence of litigation or litigation threats. JSUF at ¶
40. Defendants contend that the proxy statement was only intended for
BindView share holders.
On November 21, 2005, D.C. Toedt emailed Mr. Yue a summary of
HackerShield/bv-CIS licenses granted by BindView and supporting
details. The report indicated that 54 site licenses were issued, with
1627 non-site licenses. JSUF at ¶ 46. Yue and Pulaski then scheduled a
telephone conference at “2:00PM central time Nove 23, 2005” to discuss
the BindView report. JSUF at ¶ 47.
Netbula found that BindView again omitted significant data from its
reports, including information regarding site licenses issued from
1999 to 2000 and usage of Netbula's RPC SDK by BindView's computer
programmers in India. First Amended Complaint, Docket 38, p.18:5-13.
See also, Yue Decl at ¶¶ 68-70 on the discussion on incomplete data.
On November 23, 2005, before the scheduled telephone call to Mr.
Pulaski, Mr. Yue telephoned a royalty consultant and consulted him on
interest rates on royalty payments. The bill for the consulting
service was attached as Ex. A, NB-00003672 of Brillet Declaration. The
telephone statement was attached as Ex. A, NB-00003663-6 of Brillet
Declaration. A note prepared by Mr. Yue for the scheduled telephone
conference was attached as Ex. A, NB-0000840 of Brillet Declaration.
Mr. Yue called Mr. Pulaski as scheduled. D.C. Again, Toedt took
notes of this November 23, 2005 telephone conversation without
announcing his presence. Pulaski offered $50,000 as payment for the
license fees BindView owed and refused to provide any more
information. According to Toedt’s notes, Pulaski computed the license
fees as follows
“1681 consoles w/54 site licenses,… 10 per site, 2221 – we’ve paid
1000 = 1221. Sept. quote $20k for 1,000. We’ll pay 40k for 2000 more
+ dev licenses -> $50k”
D.C. Toedt’s notes attached to Brillet Declaration, Docket 240, p.50.
Mr. Pulaski told Mr. Yue that there was a $50,000 limit set by
Symantec and his hands were tied. Mr. Yue contended that from
BindView’s report, non-site license customers purchased up to 70
copies, indicating an unlimited site license should be larger. Mr.
Pulaski then suggested that one way to count the number of copies is
to audit the customers. Mr. Yue immediately agreed to such an
approach. But Mr. Pulaski went on saying that regardless of the
situation, all BindView could pay was $50,000. Yue Decl at ¶70.
After the November 23, 2005 telephone conversation, the parties
had some additional communications. JSUF at ¶ 51-53.
On January 6, 2006, Symantec acquired BindView through a
reverse triangular merger using a shell company Buena Vista
Acquisition Corp, which merged into BindView, and leaving BindView as
the surviving company. JSUF at ¶ 54.
Mr. Yue noticed the completion of the Symantec acquisition and
went back to read merger agreement filed with SEC in October 2005 in
more detail and noticed that there was a settlement limit of $50,000
in the merger agreement. Mr. Yue then concluded that BindView and
Pulaski had no intention to honor their promise to pay full royalty
from the very beginning. Yue Decl at ¶¶ 81-82.
ARGUMENT
ISSUES ON CLAIMS NOT ADJUDICATED
Issue 1: The allegation that BindView made unauthorized copies of
the Netbula RPC SDK in developing the bv-CIS software was not
addressed by the Defendants or the Court Order
Plaintiff’s First Amended Complaint alleged seven types of infringing
acts by Defendants. FACT at ¶24. One of them was: “BindView made
copies of Netbula's SDK license containing the “pwrpc32.dll” file for
use by multiple BindView programmers in India (BindView's new
geographical software-development nexus) without authorization.” FAC
at ¶24, Docket No. 38, p.10:25-27. Defendants did not address this
allegation in their Motion for Summary Judgment at all.
It was an undisputed fact that Netect, Inc. had only one (1) user
development license. JSUF at ¶ 7. It is also undisputed that
BindView’s development of bv-CIS was “handled by developers and
testers employed by the company, primarily in India.” Pulaski
Declaration at 8, Docket 218, p.4:3-10. According to Dr. Yue’s testing
of the bv-CIS software, bv-CIS made increasingly more use of Netbula
RPC from version 7.10 to version 8.10. Yue Decl at 94-102, Docket 238,
pp.22:12-24:2. BindView had been using Netbula RPC to create newer
versions of bv-CIS.
Even assuming BindView lawfully obtained the one user license
originally granted to Netect, Inc.., it violated Plaintiff’s copyright
by making multiple copies of the ONC RPC SDK and allowing multiple
programmers to use the SDK to develop bv-CIS. Without the proper
developer licenses, bv-CIS developed by BindView was an unlawful
adaptation or derivative work of Netbula ONC RPC SDK.
On November 23, 2005, when Eric J. Pulaski discussed with Yue on the
telephone about BindView’s usage of Netbula software, Pulaski made the
following calculation of the license fees owed:
“1681 consoles w/54 site licenses,… 10 per site, 2221 – we’ ve paid
1000 = 1221. Sept. quote $20k for 1,000. We’ll pay 40k for 2000 more
+ dev licenses -> $50k”
D.C. Toedt’s notes attached to Brillet Declaration, Docket 240, p.50.
Based on Pulaski’s estimate, BindView had about 10 developers that
used bv-CIS. In Exhibit B attached to Brillet’s Declaration opposing
Defendants’ motion for summary judgment, there are multiple email
messages among BindView’s developers in India discussing the use of
Netbula RPC in association of bv-CIS. In Exhibit E attached to
Brillet’s Declaration opposing Defendants’ motion for summary
judgment, there are source code pages which included Netbula header
files and showed names of developers who wrote the source code.
Defendants did not deny they had multiple programmers using the
Netbula ONC RPC SDK. Mr. Pulaski and other witnesses could have
testified as to how many BindView developers used Netbula ONC RPC SDK.
ISSUES ON THE LICENSE DEFENSE
To prove a license defense, Defendants BindView and Symantec must show
that they had valid licenses to Netbula RPC software. Since Netbula
did not even know BindView existed until September 2005 and since
BindView admitted that whatever licenses Netect had on Netbula RPC
were not transferred to BindView when BindView acquired Netect LTD in
1999 (See Ex. B, BV00677-691, attached to Declaration of Vonnah
Brillet), to prove a license defense, BindView must overcome the
following three hurdles:
1) Netect LTD had both development and distribution licenses for
Netbula RPC;
2) Netect LTD continue to hold the licenses it had after it sold
its stock to BindView in 1999 – in other words, Netect LTD’s change of
ownership did not trigger transfer of licenses;
3) BindView lawfully acquired the Netect LTD licenses without any
transfer;
In the cases analyzed in the court Order, the question was whether a
company continued to have copyright or patent licenses after it sold
its stock to another company[3]. Applying those cases to the instant
case, the inquiry is whether Netect LTD continued to lawfully possess
its licenses (without triggering an impermissible transfer) after it
sold its stock to BindView.
Defendants contended that the stock sale by Netect did not
violate license agreements, because “[t]he sale of all the stock in a
company to an unrelated third party did not constitute a ‘sale,
transfer, or assignment’ of assets to that third party, and thus a
right of first refusal held by the prior owner of the assets was not
triggered”. Defendants’ Motion for Summary Judgment as to the
Copyright Claim, p.15:7-9. Plaintiff contended that Netect LTD’s sale
of its stock constituted a transfer under federal law or policy.
Because the parties were unable to locate the 1998 Netect license
agreement to establish the controlling state law, the Court found that
Plaintiff could not prove that the Netect’s sale of its stock
constituted a transfer or assignment of Netect’s license rights.
However, this analysis only means that Netect LTD continued to
possess whatever license rights it had after it became a subsidiary of
BindView in 1999, without triggering a transfer from the old Netect
LTD to the new Netect LTD owned by BindView. In other words,
Defendants only proved that the Netect licenses lawfully stayed with
Netect.
BindView did not prove that Netect LTD had a distribution license to
start with -- only Netect Inc, the Delaware subsidiary of Netect LTD,
had a distribution license. There was no evidence that Netect Inc’s
distribution license was lawfully transferred to its Israeli parent,
Netect LTD. Moreover, even assuming that Netect LTD had a license,
BindView did not show how it lawfully obtained the license from Netect
LTD without a transfer. BindView and Netect LTD did not merge, they
remained separate entities.
Issue 2: Whether BindView’s development of the bv-Control for
Internet Security (“bv-CIS”), which was developed with Netbula ONC RPC
SDK, constituted a transfer of the Netect, Inc. license from Netect,
Inc. to BindView
It is undisputed that BindView, instead of Netect LTD or Netect,
Inc.., developed the bv-Control for Internet Security software using
Netbula RPC.
BindView continued to develop and sell HackerShield after its
acquisition of Netect, and sold the product as bv-Control for Internet
Security or “bv-CIS.” Netect’s offices were closed after the BindView
acquisition.
JSUF at ¶ 15.
Based on the information in BindView’s October 2, 2005 disclosure
letter (Brillet Decl, Ex. B, BV00678), the following diagram shows the
relationship of relevant entities in October 2005 and the movement of
Netbula RPC software.
Figure 1: BindView and the related subsidiaries as of October 2, 2005
(See BV00678)
As explained above, the “operation of law” theory only leads to the
conclusion that the Netect licenses stayed with Netect. BindView’s
development of bv-Control for Internet Security with Netbula RPC was
thus done with a transfer of the Netbula ONC RPC development license
from Netect, Inc.. to BindView. By moving development of bv-CIS to
India, BindView’s further impermissibly transferred the Netect, Inc.
license to the Indian company[4].
Issue 3: Whether the one distribution license (which Plaintiff
contends was non-exclusive and subject to limitations) for Netbula’s
runtime library which Netect, Inc. purchased in July 1998 was legally
transferred to its parent company Netect, Ltd, which sold all of its
stock to BindView in 1999
Paragraph 7 of the Joint Statement of Undisputed Facts (“JSUF”) refers
to Netect LTD and Netect, Inc.. These were two different companies. As
of October 2005, Netect LTD was an Israeli company owned by BindView.
Netect, Inc. was a Delaware Corporation, owned by Netect LTD. See
Brillet Decl, Ex. B, BV00678, Docket 240.
JSUF at ¶ 7 stipulated that Netect, Inc. purchased one user
development license for Netbula ONC RPC SDK and one distribution
license (which Plaintiff contends was non-exclusive and subject to
limitations) for Netbula runtime library. However, there was no
evidence that Netect Ltd had any distribution license. There was also
no evidence that Netect, Inc.. lawfully transferred the licenses it
purchased to Netect LTD.
JSUF at ¶ 13 stipulated that BindView acquired Netect by share
purchase in an agreement dated January 29, 1999. The “Netect” in the
share purchase agreement was “NETECT LTD, an Israeli Corporation”. See
Pulaski Decl, Ex. 1.
There was no evidence that Netect LTD had any distribution license at
the time BindView purchased Netect LTD’s stock in 1999 or any time
afterwards. It was Netect, Inc., a Delaware Corporation, which had one
distribution license (which Plaintiff contends was non-exclusive and
subject to limitations) for the Netbula runtime library. There was
also no evidence that Netect, Inc. merged into its parent company,
Netect LTD.
Issue 4: Whether BindView’s distribution of the bv-Control for
Internet Security (“bv-CIS”), which contained “pwrpc32.dll”, was done
with a distribution license
JSUF at ¶ 15 stated that BindView sold the bv-CIS products,
which was developed with Netbula RPC and contained the “pwrpc32.dll”
runtime. Netect, Inc., though it continued to exist, was inactive. In
other words, it was BindView that distributed the Netbula runtime
library. The question is whether BindView had a distribution license.
Neither Netect LTD nor Netect, Inc. merged with BindView.
Instead, Netect LTD and Netect, Inc. both continued their existence as
separate legal entities. BindView only bought Netect LTD’s stock.
Defendants admitted that “only the ownership of Netect’s stock
changed, with no assets conveyed”. Def Reply in Support of Motion for
Summary Judgment as to Copyright Infringement., p.3:23-23, Docket 253.
Defendants also admitted that “Netect continued to survive as a
corporation after its stock was acquired by BindView.” Id. at pp.
5:24-6-1. In other words, the licenses Netect, Inc. had stayed with
Netect, Inc..
Therefore, BindView did not have a distribution license;
BindView’s distribution of Netbula runtime library was done without
any license.
Issue 5: Whether the Symantec-Buena Vista Acquisition Corp-
BindView reverse triangular merger allowed Symantec to legally acquire
the licenses originally granted to Netect, Inc..
Symantec and BindView did not merge. Symantec acquired BindView
via a process called a reverse triangular merger. The process
involves three phases: (1) Symantec created a shell company called
Buena Vista Acquisition Corp with directors appointed by Symantec; (2)
Buena Vista Acquisition Corp merged with and into BindView; (3)
BindView came out as the surviving corporation, but became a wholly
owned subsidiary of Symantec. See SQL Solutions v. Oracle Corp., 1991
WL 626458 (N.D. Cal. 1991) for an example of such merger.
It is important to note that in the reverse triangular merger,
BindView did not merge with Symantec. Instead, BindView continued its
existence with its corporate structure intact. In SQL Solutions, SQL
became a subsidiary of Sybase via a reverse triangular merger. Judge
Patel applied California law and concluded that the mere change in the
control of the company (SQL) resulted in a transfer of a copyright
license, and the copyright owner (Oracle) had the right to terminate
the license. Using BindView as an analogy, the SQL court addressed the
issue of whether BindView continued to posses a copyright license it
had prior to the merger.
Even if the reverse triangular merger did not result in any
transfer of license from the old Netect, Inc.. to the new Netect, Inc.
(whose top level parent company is now Symantec), it does not lead to
the conclusion that Symantec itself acquired the 1998 licenses, it
only means Netect, Inc. continues to have those licenses.
Issue 6: Whether a copyright owner’s burden in proving that a
copyright defendant exceeded the scope of a copyright license in a
copyright infringement action leads to the conclusion that the
copyright owner has the burden to prove the scope or terms of the
copyright license itself
The parties stipulated that Netect, Inc. had a distribution
license (which Plaintiff contends was non-exclusive and subject to
limitations). The question is what that distribution license allows
Netect, Inc. to do. A copyright license is not an abstract concept. A
license cannot exist without terms. A license grant must contain a
specific set of rights and conditions. In fact, Defendants have to use
Netbula’s standard license agreements to extract the parts about
rights that are granted, but they refuse to acknowledge the
restrictions in the same standard license agreement. As the Court
noted during oral argument, Defendants cannot have it both ways.
The law is clear: "To prevail on its claim of copyright
infringement, [the copyright owner] must prove . . . `copying' of
protectible expression by [the accused infringer] beyond the scope of
[the] license."). See S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081,
1085 (9th Cir. 1989). In short, Plaintiff has the burden to prove
defendants exceeded the scope of the distribution license.
The question is who has the burden to prove the scope. Since a non-
exclusive[5] license cannot exist without a scope, and since a
defendant has the burden to prove a license defense, Plaintiff
contends that a copyright defendant has the burden to prove the scope
of the license; only then does the burden shift to the copyright owner
to show the copying exceeded the scope.
Defendants relied on Bourne v. Walt Disney Co., 68 F.3D 621, 36
U.S.P.Q.2D 1449 (2d Cir. 10/18/1995). In Plaintiff’s Opposition, it
analyzed Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115 (9th
Cir. 1999) in great detail, but did not touch Bourne. Bourne is
exactly like Sun Microsystems in that the defendant proved the scope
of the license.
In Bourne, there was a written agreement. “Bourne provided Disney with
a license to use the compositions ‘in synchronism with any and all of
the motion pictures which may be made by [Disney],’ Bourne argued that
these rights were insufficient to allow Disney to distribute the
compositions on videocassette.” Id. Bourne also claimed infringement
on Disney’s use of the compositions in TV commercials. The scope of
the license was proved by Disney, using the composition in Disney’s
motion pictures. “The only dispute is whether Disney's synchronization
of the Compositions with its home videocassettes and its use of the
Compositions in its television commercials fall within the scope of
the existing licenses.” The jury found Disney liable for infringement
in the television commercials, but found Disney’s use of the
composition on videocassette within the scope of the license. The
Second Circuit affirmed[6].
In this case, the pwrpc32.dll file BindView distributed had the text
“Netect LTD. Dev License, Non-Distributable” in it. Such text was part
of a license message intended to be shown to the user. Dr. Yue
testified that the text is visible to a customer in several ways. Yue
Decl at ¶¶14-15. In his expert deposition on August 13, 2007, Dr. Yue
showed how the text “Netect LTD. Dev License, Non-Distributable” was
displayed in Windows Event Log, a place where system administrators
check for system messages.
Defendants provided no evidence[7] that the Netect, Inc. distribution
license permitted the distribution of the “Netect LTD. Dev License,
Non-Distributable” pwrpc32.dll file.
Issue 7: Whether copyright owner has the burden to prove that a
copyright defendant has assented to the restrictions of a copyright
license in an infringement action
Defendants relied on Specht v. Netscape Communications Corp.,
150 F. Supp. 2d 585,
596 (S.D.N.Y. 2001), aff’d, 306 F.3d 17 (2d Cir. 2002) and various
state contract cases to conclude that a copyright owner must prove an
alleged infringer’s assent to the license restrictions. Such analysis
leads to conclusions that are against federal copyright law.
Software pirates work as follows: (1) obtain a legal copy of
software on CD media; (2) mass duplicate the CD media using CD
duplication equipment; (3) sell the duplicated CD media. Often times,
the software pirates don’t understand English and don’t have any use
of the software themselves. They simply copy and distribute, sometimes
at prices just a bit above their CD duplication costs. Applying
Defendants’ assent requirement to these software pirates will fail –
the software pirates may not even understand the licensing terms, and
there is no button for them to click regarding their agreement to
abide by any terms when they make their duplications.
Copyright is a creature of statute. The Copyright Act
explicitly preempts state law whenever exclusive rights protected by
copyright are involved. One of the exclusive rights of the copyright
owner is the right to duplicate the work.
Defendants reached the wrong conclusion because Specht was not a
copyright case at all. The Specht case is about whether the users of
a program agreed to a privacy policy that would allow the private
information of the user to be sent to the owner of the program. Specht
and other cases cited by Defendants fall in the category of state
contract law. In the instant case, the dispute is Defendants’
unsanctioned duplication of Plaintiff’s software, which involves
Plaintiff’s exclusive rights under the Copyright Act. As a result, the
governing law is “federal copyright policy: copyright licenses are
assumed to prohibit any use not authorized. Cf. Cohen, 845 F.2d at 853
(license analyzed to determine what uses it affirmatively permits)”.
See S.O.S. Inc. v. Payday Inc., 886 F.2d 1081 (9th Cir. 02/10/1989)
(emphasis added).
Issue 8: Whether Plaintiff should have been allowed additional
discovery on the Netect licenses
The evidence of Netect, Inc.’s “distribution license” was from these
two lines from Netbula’s sales records. See Brillet Decl, Ex. A,
NB-0000760.
The records above show the purchase date, the license type, the
operating system type, the customer name (“NETECT INC”), and the full
address. Even though the parties’ cannot find the original license
agreement, further discovery could determine the license terms.
Plaintiff requested further discovery regarding the Netect license,
such as the identities of former Netect employees. Had BindView
provided the identities of the Netect, Inc. employees who had the
authority to make software license purchases, Plaintiff could have
contacted these former Netect, Inc. employees and sought their
testimonies. Plaintiff moved for discovery that could lead to the
determination of the license terms. Docket 167, p.10:20-27. But, on
June 11, 2007, the Court denied Plaintiff’s discovery request. Docket
No.196. Under FRCP Rule 56(f), the Court “may refuse the application
for judgment or may order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be had or may make
such other order as is just.” Plaintiff should be granted additional
discovery to determine the Netect, Inc. “LIM-DIS” license for “NT/95”.
ISSUES ON THE FRAUD AND CONTRACT CLAIMS
Issue 9: Whether BindView promised Netbula on November 7, 2005
that it would pay a reasonable amount of license fee for each copy of
Netbula software BindView made or authorized others to make
On October 2, 2005, in BindView’s disclosure letter to
Symantec, it stated:
[[[[CONFIDENTIAL MATERIAL REDACTED]]]]
BindView’s initial report on October 25, 2005 claimed that it
only made 1681 copies. JSUF at ¶ 30. BindView denied that it sold
unlimited site licenses. Yue Decl at ¶36. On November 2, 2005, Netbula
sent a letter to Pulaski at BindView with a copy to Symantec, stating
that Netbula had found that BindView sold site licenses, contrary to
what BindView previously represented. JSUF at ¶ 36, Yue Decl at ¶ 43.
On November 7, 2005, Pulaski telephoned Yue. According to Toedt’s
notes, Pulaski made the following definitive representations: “We want
to … pay the full amount we owed you”, “We’ll check on site license –
work out some kind of average # of admins”. JSUF at ¶ 38. Pulaski
testified that he told Yue that “[w]e would be totally open with him
about all the data that we had and if whatever we owed, we wanted --
we'd be happy to pay plus interest.”
Issue 10: Whether BindView refused to provide a complete license
usage report and pay royalties and interests
On November 21, 2005, BindView made a second report. This
report did not include any site licenses for 1999-2000. Yet, Yue found
that a Virginia university purchased a site license in that time
frame. Yue Decl at ¶¶ 42, 68. On November 23, 2005, Yue first
consulted a royalty consultant on interest rate, and then telephoned
Pulaski to discuss the report.
Pulaski offered Yue $50,000 for license fee payment. Pulaski’s
justification for the $50,000 amount was based on his assumption that
an unlimited site license counted as 10 copies. According to Toedt’s
notes on the telephone conversation, Pulaski’s calculation was:
“1681 consoles w/54 site licenses,… 10 per site, 2221 – we’ve paid
1000 = 1221. Sept. quote $20k for 1,000. We’ll pay 40k for 2000 more
+ dev licenses -> $50k”
Yue contended that based on BindView’s own November 21, 2005
report, BindView customers purchased up to 70 copies instead of an
unlimited site license. Excerpts of the BindView report were included
as Ex. A, NB-0001052-76 attached to Brillet Declaration in Opposition
to Defendants’ Motion for Summary Judgment. From these spreadsheets,
there were BindView customers that purchased 20, 23, 28, 29, 50 or 70
copies. It is therefore unreasonable to claim that an unlimited site
license was only 10 copies. When Pulaski offered to audit its
customers, Yue agreed. However, Pulaski then declined to do the
audit. Yue Decl at 70.
Yue also pointed out that there was missing information in
BindView’s report, such as site licenses in 1999 and 2000. However,
Pulaski refused to discuss the royalty report any further and refused
to provide any further information. His words to Yue were to “take the
money and run”. Yue Decl at 68-71.
Defendants claimed that there was no evidence Defendants
breached the agreement by providing incomplete license information in
the November 21, 2005 report. However, this was not Plaintiff’s
allegation. The Court previously ruled “[t]he relevant representations
are Bindview’s alleged promises to fully report their use of the
PowerRPC product– not the factual assertions contained in the reports
themselves.” Docket No. 37 at p.5:16-18. Plaintiff viewed Defendants’
November 21, 2005 report as major step forward. It was BindView and
Pulaski’s refusal to provide further information that resulted in a
breach. Pulaski wanted to make the 1627 copies of non-site license and
54 site licenses the final count for the period of 1999-2005, and 10-
copy per site license as the number of copies for a site license.
On June 25, 2007, Defendants produced some CD production records for
the period of April 2004 to October 2005. Based on these records,
BindView made 4650 CD-ROMs for bv-CIS in a period of less than 18
months.
On June 14, 2007, Defendants finally produced some additional
spreadsheets for its sales of bv-CIS from 1999-2005. From these
records, Plaintiff’s expert identified 4585 non-site licenses
(including the 2134 downloads). See Ex. D to Brillet Declaration.
BindView reported 54 site licenses in the November 21, 2005 report.
That count was incomplete. Based on the partial license agreements
Defendants produced, Plaintiff identified 14 additional site licenses,
making the total number of known site licenses 68. One of the
additional site licenses was granted to Wachovia, which was listed as
1-copy in the November 21, 2005 report. Compaq was another purchaser
of site license which Defendants discussed in their motion to exclude
Plaintiff’s expert, but Compaq was not included in the November 21,
2005 report as a site license.
Plaintiff’s First Amended Complaint (“FAC”) alleged that BindView
granted Virginia Polytechnic Institute and State University a site
license. FAC at ¶24. However, BindView’s records only show this
customer purchasing one copy.
From the above, there was additional data available from BindView
regarding its distribution of Netbula RPC. BindView promised to
provide the information. But on November 23, 2005, BindView, through
Pulaski, refused to provide any further information. Their reason was
that regardless of the situation, BindView was bound by an agreement
with Symantec not to pay more than $50,000.
ALTERNATIVE MOTION FOR STAY JUDGMENT PENDING APPEAL
Plaintiff believes that it has a substantial likelihood of success on
appeal based on the merits. Plaintiff believes that an entry of
judgment would cause irreparable harm to its intellectual property and
endanger its very existence. "Under federal copyright law, . . . a
plaintiff that demonstrates a likelihood of success on the merits of a
copyright infringement claim is entitled to a presumption of
irreparable harm.” Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d
1115, 1119 (9th Cir. 1999). Although the Court granted Defendants’
summary judgment on the copyright claim, the Order involves
controlling questions of law on several fundamental issues as to which
there was substantial grounds for differences of opinion. Defendants
had distributed Plaintiff’s software to hundreds of corporations, many
of them with unlimited rights. Plaintiff sought copyright damages and
injunctive relief. Judgment in favor of Defendants means that
Plaintiff will not be able to assert any protection on its copyright.
Those corporations and other persons who acquired a copy of bv-CIS
software will be free to further copy and use Netbula’s component
without any restriction. Plaintiff has no way to show these
corporations and persons ever agreed to any Netbula licensing terms.
“What is fairly contemplated is that tribunals may properly stay
their own orders when they have ruled on an admittedly difficult legal
question and when the equities of the case suggest that the status quo
should be maintained.” Washington Metropolitan Area Transit Commission
v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977). Although
Plaintiff is a small company, whereas Defendants are large
corporations, the legal questions on copyright law are important to
the society as a whole. In many cases, a copyright owner (even
Defendants themselves) may have no way to show an infringer agreed to
any copy restriction. A stay of entry of judgment will not cause any
harm to Defendants. Accordingly, Plaintiff moves, in the alternative,
a stay of final judgment and permission to appeal. FRAP 8(a).
CONCLUSION
Based on the issues Plaintiff raised, Plaintiff respectfully
requests the Court to grant leave for file a motion for
reconsideration. In the alternative, Plaintiff requests the Court to
grant stay of entry of judgment pending appeal.
[1] Plaintiff produced the full, unredacted list to Defendants in
discovery.
[2] Margolis Depo. p.45:15-21:
Q. Did you participate in BindView's acquisition of Netect?
A. Yes.
Q. What was your role?
A. I generally led the acquisition of -- of the financial and legal
aspects of the acquisition of Netect.
[3] For instance, in SQL Solutions, Inc. v. Oracle Corp., No.
C-91-1079, 1991 U.S. Dist. LEXIS 21097, 1991 WL 626458, at *3 (N.D.
Cal. Dec. 18, 1991), the question is whether SQL continue to lawfully
own the copyright licenses after it became a subsidiary of Sybase,
Inc.
[4] According to BindView’s documents, the name of the Indian company
was BindView India Private Limited, which was 99% owned by Entevo
Corporation as of October 2005.
[5] An exclusive license must be evidenced by writing.
[6] Bourne seems to be in direct conflict with a Ninth Circuit case
dealing with very similar dispute, Cohen v. Paramount Pictures Corp.,
845 F.2d 851 (9th Cir. 1988). Cohen granted a license for Paramount to
use certain musical compositions in film and on television. Years
later, the VCR was developed. Paramount made videocassette tapes of
the film. The Ninth Circuit siding with Cohen, noted that “the license
must be construed in accordance with the purpose underlying federal
copyright law”, the court held “that the license did not give
Paramount the right to use the composition in connection with
videocassette production.” Id.
[7] Defendants attempted to use Plaintiff’s standard license forms to
reach a conclusion that the Netbula distribution license provided the
right to distribute the “Non-Distributable” copy, but such attempt to
have it both ways on Netbula’s standard license form is dubious at
most.
copyright
Edward M. Chen (Chinese name: 鄭一芳) is a Magistrate Judge in the
Northern District of California. President Obama recently nominated
Chen to the federal bench, and Chen’s confirmation is pending before
the U.S. Senate. Though Chen is a powerful figure, as responsible
members of the society, we shall provide rigorous objective proof that
Chen is a fraud.
A fraud deceives by telling lies. A lie is a knowing statement of
falsehood. To prove Chen a fraud, we need to provide some background
information. The purpose of providing this background is not to re-
litigate the underlying dispute, but to lay the factual basis of our
proof of Chen’s fraud.
Since Chen is a Magistrate Judge, his shows personal character in
cases he handled. Our case was a copyright lawsuit between a small
software company named Netbula, LLC and Symantec Corporation. In 1998,
Netbula issued a “one use dev” license to an Israeli company. Years
later, Symantec obtained the Netbula software via a series of
acquisitions, and distributed it all over the world without Netbula’s
authorization. Eventually, Netbula sued Symantec for copyright
infringement. The case number was C06-0711-MJJ (N.D. Cal).
The case looked like a run-of-the-mill software piracy matter,
except perhaps, it was a small entity sues a big company for copyright
theft, instead of the usual way, in which Symantec sues small guys for
stealing its software.
Before Symantec answered Netbula’s complaint, the parties agreed to
have a private confidential meeting to see if they could resolve the
dispute. Each side asked other side to bring documents to the meeting.
Symantec asked Netbula to bring its pricing records; Netbula asked
Symantec for nine categories of documents. On May 15, 2006, the
parties met. One Symantec executive and three Symantec lawyers, met
Netbula’s owner Dr. Yue and Netbula’s former attorney. Dr. Yue brought
a stack of paper documents with licensing and pricing information, and
put them on the conference table. The parties discussed the Netbula
documents. At the ending of the meeting, Dr. Yue asked the Symantec
executive whether he would like to keep the Netbula documents, he
declined.
The meeting did not result in a settlement. Symantec answered the
complaint and the Court was setting discovery plans. In the Court
filing, Symantec alleged that in the May 15, 2006 meeting “Symantec …
provided the materials requested of them... Netbula, on the other
Symantec, in its affirmative defenses, also accused Netbula of
“unclean hands.” Netbula’s copyright certificate stated that Netbula
published it software in September 1996. Symantec claimed that Netbula
did not exist until a year later. This, said Symantec, showed that
Netbula cheated the U.S. Copyright Office. However, Symantec did not
provide any factual basis for its accusation that Netbula did not
exist until 1997. In fact, a simple free online check with Delaware
Corporate Division can verify that Netbula was registered in July
1996, before the publication of the software. Netbula had no idea why
Symantec made the false accusation. In its Court papers, Netbula
pointed out that Symantec’s allegation was without basis. But Symantec
ignored Netbula’s protest, and continued to make the similar
accusations in its affirmative defenses filed with the Court in
December 2006.
Moreover, Symantec continued to tell the Court that Netbula did not
bring any documents to the May 15 meeting. Frustrated, on March 14,
2007, Netbula’s new lawyer, a young black woman, served a Rule 11
motion on defense counsel.
Under Rule 11 of the FRCP, after receiving the motion, Symantec’s
lawyers had a 21-day “safe-harbor” period to withdraw their
misrepresentations. After 21 days, the violations are complete for the
purpose of Rule 11.
Symantec’s counsel refused to correct or withdraw their prior court
filings. On April 6, 2007, after the expiration of the safe-harbor
period, Netbula filed the Rule 11 motion with the District Court. The
Docket No. was 103.
In Netbula’s motion, it listed five specific violations, including
the two violations above: (1) lying about the May 15, 2006 meeting;
(2) baseless accusation that Netbula cheated on its copyright
certificate. We chose these two violations here, because their
handling best demonstrates Chen’s judicial fraud.
In the briefing of the Rule 11 motion, Netbula showed a May 16,
2006 email sent by Symantec’s lawyer Jedediah Wakefield, in which he
discussed the documents Dr. Yue brought the previous day. That email
was copied to two other Symantec lawyers. Faced with this evidence,
Symantec admitted that Netbula did bring documents to the May 15
meeting.
Symantec also admitted that it was mistaken about the year of
Netbula’s formation. Their lawyers explained that they only checked
California records, but not Delaware records. However, in all their
prior court filings, they typed Netbula, LLC, a Delaware Limited
Liability Company. Even California records indicated that Netbula, LLC
was formed in Delaware.
Edward M. Chen, as the Magistrate Judge, heard the Rule 11 motion
on June 7, 2007. After he saw Netbula’s lawyer was a young solo
practitioner and the other side is the big company, he immediately
stated that he was inclined to deny Netbula’s motion.
On June 11, 2007, Chen issued his ruling. He denied Netbula’s
motion, and fined Netbula $20,000.00 for filing the motion.
Rule 11 of Federal Civil Procedure does not set any time limit. In
its motion papers, Netbula cited cases where Courts granted a Rule 11
motion a year after the violation. Chen disagreed with the cases. Chen
wrote:
Netbula’s Rule 11 motion was untimely because it was not filed until
many months after Defendants’ offending contentions were made… The
instant case involves contentions made in motions, and not pleadings.
(Quoting from Chen’s Ruling, Docket No. 193, p.3)
Netbula sought sanctions for Symantec’s false statements in its
Affirmative Defenses. Affirmative defenses are pleadings, not motions.
Chen got the exact opposite of the definition of “pleadings.” If Chen
did not make this mistake on purpose, he was not well versed in basic
legal terminology.
What Chen wrote next shows his fraud. On the May 15, 2006 meeting,
Chen wrote:
In any event, Defendants’ statement was not misleading. Netbula had
not produced all the documents requested.
Now, this is a big fat lie. Symantec accused Netbula of not
bringing ANY document. But Chen twisted it around, as if Symantec’s
accusation was that Netbula did not bring ALL documents. Chen’s lie
was designed to turn Symantec’s false statement into truth.
On the issue of when Netbula was founded. Chen wrote:
although it appears that Defendants’ could have easily determined the
date Netbula was organized in Delaware and thus presents the strongest
case for service of a Rule 11 motion, this issue illustrates why the
safe harbor provision is important… Netbula should have asked
Defendants to withdraw the contention because Netbula was incorporated
earlier in Delaware. It could have easily document such to Defendants’
satisfaction. Netbula did not do so. In fact, even in its reply brief,
Netbula failed to bring this corrective information to Defendants’ and
the presiding judge’s attention.
See Chen’s twisted logic and how he acted as Symantec lawyer? As
stated above, when Symantec made the false accusation, Netbula had no
clue why Symantec made it. Netbula had no duty to tell Symantec not to
make false statement to the court, but it actually did so in court
papers by pointing out that Symantec failed to provide supporting
facts for that allegation. Yet, Chen ruled that Netbula should have
told Symantec that it was founded in Delaware. But, Netbula did. From
day one of the case, Netbula presented itself as “a Delaware Limited
Liability Company.” Defense counsel typed those words in the caption
of their court papers. Moreover, Netbula filed the Rule 11 motion ONLY
AFTER Symantec refused to correct its wrong.
After putting the blame on Netbula by the above lies, Chen wrote
why Symantec should be awarded $20,000.00:
defense counsel’s credibility had been attacked, and they were
entitled to defend against the charge that they had acted frivolously,
a grave charge… the factual investigation needed to respond to the
Rule 11 motion on the merits was not a task that could quickly be
accomplished. For example, a fair amount of time was reasonably
expended to look into the history of events surrounding the May 15,
2006, settlement meeting. Given the circumstances, having reviewed the
opposition brief and affidavit, the Court concludes that an award of
$20,000 is reasonable.
Basically, Chen lied to turn into Symantec’s lie into the truth,
then awarded Symantec $20,000.00 for looking the history of the lie
that was refuted by their own email dated May 16, 2006. Chen awarded
Symantec $20,000.00 largely for checking their own emails sent the
next day. Chen’s fraud is undeniable. He reviewed the briefs and
affidavits, he knew these facts, yet he twisted the facts, he even
invented lies to cover defendants.
After Chen’s order, Netbula filed an Objection with District Judge
Martin J. Jenkins. On August 6, 2007, Jenkins agreed that Chen got the
definition of “pleading” wrong. Jenkins ruled that Netbula’s motion
was too early, rather than too late:
Plaintiff points out that the magistrate judge erroneously found that
the Rule 11 motion did not involve pleadings, since Plaintiff did
request that the Court impose sanctions on Defendants for claimed
mischaracterizations in their second amended answer. However, this
argument does not undermine the conclusion that the motion is
untimely… Rule 11 motion for sanctions arising from Defendants’
pleading was untimely because Plaintiff filed it too early by not
awaiting the end of the case.
Dr. Yue criticized Chen’s ruling in a blog article and filed a
judicial misconduct complaint against Chen at the Ninth Circuit. After
Jenkins learnt about the article, out of retaliation, he dismissed
Netbula’s lawsuit on August 31, 2007, under the Jenkins-Laporte
Doctrine.
Not all judges are as fraudulent and biased as Edward Milton Chen.
For instance, another Magistrate Judge had the following to say about
Symantec lawyers and the May 15, 2006 meeting:
THE COURT (asking Symantec lawyer): Were you at that meeting, May
15th?
MR. WAKEFIELD (Symantec lawyer): I was, Your Honor.
THE COURT: Okay. And they said -- they say they produced a bunch of
documents, showed, disclosed, offered for you guys to keep. No, no, we
don't want them piecemeal. We want the whole 9 yards, otherwise we
don't get paid enough money.
…
THE COURT: …Most litigants cannot come here because the profit per
partner is $900,000 a year. This is a mirage of an institution for
everybody except general motors. And that's shameful to our society.
So that's -- that's the context here.
Link to this post
Add Case Notes
Report this post to Administrator
Guest
2009-09-21
15:36:10
an irreversible mistake if Edward M. Chen is nominated to the Federal
Bench
To: U.S. Congressmen and President Obama
It will be an irreversible mistake if Edward M. Chen is nominated to
the Federal Bench.
Recently, Mr. Chen pulled off a Catch-22 on the plaintiffs in the U.S.
District Court case No. 3:07-cv-04005-EMC, which Mr. Chen mentioned in
his answer to the Senate Judiciary Questionnaire. On November 14,
2007, Mr. Chen ordered: “No formal discovery and no initial
disclosures until further order by this Court.” See Docket Entry No.
80. Three months later, Mr. Chen dismissed all of plaintiffs’ claims,
blaming plaintiff not offering any evidence to the contrary. See
Docket Entry 110.
I was the pro se plaintiff representing myself and my son in the case
above, against the University of California at Berkeley and its
officials (“U.C. Berkeley”). We, mother and son, are disabled, due to
the aggravated assault and battery by U.C. Berkeley employees, and
their continuing stalking and harassment. We filed suit in state
court. After the state court judge was compromised by defendants’ ex
parte communications, we filed federal claims in the U.S. District
Court. Judge Chen took the case.
U.C. Berkeley defendants did not dispute our allegations: its
employees’ aggravated assault and battery, stalking and harassment,
perjury in the state court procedures, ex-parte communication with the
state court judge, and conspiracy between U.C. Berkeley and
defendants. These were indisputable, based on state court trial
transcripts and hearing testimony.
After forbidding us to conduct discovery, Mr. Chen labeled our
injuries a theoretical matter, fantastic or delusional scenarios,
sheer speculation lacking plausibility, fantastic conspiracy, patently
fanciful and insubstantial. Mr. Chen exonerated the U.C. Berkeley
employees who filed affidavits, but avoided to mention the employees
who did not file affidavits. He twisted the facts about employee
defendants’ perjury, fraud, and ex parte communication with the state
judge, which were indisputable based on state court record. See,
Chen’s order dated February 13, 2008, Docket Entry No. 110.
I filed a motion for recusal and a supporting affidavit. Mr. Chen
refused to recuse himself from the case, Docket Entry No. 151, 152,
154. In his answer to the Senate Questionnaire, Mr. Chen stated that
he “denied the request because the plaintiff was claiming bias based
solely on an adverse ruling I had issued.” However, as I found out
recently, Mr. Chen received a B.A. from U.C. Berkeley in 1975, and
J.D. from U.C. Berkeley School of Law in 1979. A search of Chen’s name
at Berkeley Law - Home reveals that Mr. Chen has been giving seminars
at the defendant school, and presumably been receiving compensation
for his work at defendant school. Mr. Chen was also listed as a
significant donor to U.C. Berkeley law school in 2007-2008. In his
answer to the U.S. Senate Judiciary Committee, Mr. Chen concealed the
fact that U.C. Berkeley and its officials were named defendants in my
case, represented by Gaylynn Kirn Conant, also a U.C. Berkeley
graduate.
Mr. Chen’s biased, prejudiced, oppressive and crooked behavior against
the poor and powerless is shocking. He rules in favor of the rich and
powerful, from whom he receives praises and recommendations. Mr. Chen
will not uphold the laws and U. S. Constitution. It will be a tragic
mistake if Edward M. Chen climbs up to the lifetime tenure of the
federal bench.
Christine Chang _
Plaintiff of Case No. 3:07-cv-04005-EMC
Link to this post
Add Case Notes
Report this post to Administrator
Guest
2009-09-25
17:49:17
Re: an irreversible mistake if Edward M. Chen is nominated to the
Federal Bench
Edward Chen represents the worst of Injustice. He sells himself as
from a poor family son ready to do justice, yet he prey on a weak and
powerless to climb up the social ladder for his personal gain.
This is not a campaign against Chen personally, but for Justice.
Always remember, Justice does not fear Injustice, Justice has always
prevailed and will continue to prevail.
Those Senators providing cover for Chen, what are they afraid of? The
TRUTH? If that's the case, they are inviting insult on their own
dignity.
So, ask the Democrats to back away from their party line. The Rule of
Law and Justice outweighs any partisan considerations. There is a
greater issue at hand: whether the judicial branch can uphold the
principle of Equal Justice under Law, and the judicial branch is run
by individual judges.
Link to this post
Add Case Notes
Report this post to Administrator
Guest
2009-09-25
17:50:42
Re: an irreversible mistake if Edward M. Chen is nominated to the
Federal Bench
I can't express my gratitude enough to all of you. I have had such
awful feeling stuck in my throat for so long, but nowhere can I find
justice. If not for your help I would be fighting the lost cause, and
most likely lose our case in the Ninth Circuit Appeals Court.
Thank you expecially for your directing and drafting. You express our
struggle and pain much better than I could have.
I have faxed the complaint of judicial misconduct and statement of
facts to the Senate Judiciary Committee, and will be mailing six
copies to the Ninth Circuit. Thank.........you.
Christine
Link to this post
Add Case Notes
Report this post to Administrator
Guest
2009-10-10
03:35:41
Sad but True
Sad but True
No chance anything will be done. America has changed. Americans have
no standing, per se, in U.S. Courts any more. Lawyers may have
standing depending on their political affiliation or other grounds not
known to the public. We have some of the most brilliant, well-educated
and sophisticated criminals in history, donning black robes. I am not
exaggerating. Lawyers with great minds, Ivy League diplomas with blue
blood in their veins become judges and reign without regard to the
ideals of justice. They form a new class of privileged elitists.
Empowered by their cunning adoption of case law, shielded by a
brotherhood of their peers and protected with total immunity in the
guise of "independence," they have usurped our democracy without
firing a single shot. We the People no longer have a voice over one
third of our government! ONE THIRD! Our legislatures are preoccupied.
Our executive branch is consumed simply trying to stay out of their
sights.
Four of our beloved Supreme Court Justices found that a judge
receiving millions in campaign contributions from a litigant did not
create an appearance of impropriety.
Oh, did I mention that some of them are not from planet earth?
Link to this post
Add Case Notes
Report this post to Administrator
Guest
2009-10-10
05:59:59
Re: Sad but True
If scums and scams like Ed Chen gets a lifetime tenure, sitting high
and legislate from the bench, what becomes America? It is shameful
that Al Franken and Feinstein cutoff Sessions' questioning of Chen.
What was the hurry? Why can't they let the ranking Senator asks Chen
why he lied?
Too much dirty politics make America look bad in front of the world.
copyright
NORTHERN DISTRICT OF CALIFORNIA
DONGXIAO YUE,
Plaintiff,
v.
STORAGE TECHNOLOGY CORPORATION, a Delaware corporation; SUN
MICROSYSTEMS Inc., a Delaware corporation; Michael Melnick, an
individual; Julie DeCecco, an individual; Michael P. Abramovitz, an
individual; Lisa K. Rady, an individual; Jonathan Schwartz, an
individual; and DOES 1-1000, inclusive,
Defendants.
Case Nos. C07-05850-JW-EDL
NOTICE OF MOTION AND MOTION FOR DE NOVO DETERMINATION OF DEFENDANTS’
MOTION FOR ATTORNEY’S FEES
AND
OBJECTIONS TO THE RECOMMENDATION AND REPORT OF THE MAGISTRATE JUDGE ON
THE AWARD OF ATTORNEY’S FEES AND COSTS
Time: 9:00 AM
Date: November 3, 2008
Dept: 8, 4th Floor
Judge: The Honorable James Ware
NOTICE OF MOTION & MOTION FOR DE NOVO DETERMINATION & OBJECTIONS
TO ALL PARTIES AND THEIR COUNSEL:
Please take notice that at 9:00AM, on November 3, 2008 before U.S.
District Judge the Honorable James Ware at the San Jose Division of
the Northern District of California, pursuant to FRCP 72(b), 28 U.S.C.
636(b)(1), Civ. L.R. 72-3 and Civ. L.R. 7-2, copyright owner, pro sede
novo determination of Defendants’ motion for attorneys’ fees and costs
[Docket No. 53], which the court referred to Magistrate Judge Laporte.
Plaintiff respectfully objects to the Magistrate Judge’s Report and
Recommendation to award $219,949.90 to copyright Defendants Sun
Microsystems, Inc. and StorageTek et al. under Section 505 of the
Copyright Act [Docket No. 142]. Yue’s motion for de novo determination
of Defendants’ motion for attorneys’ fees and costs is based upon the
this notice, the 29 objections presented below, the Court’s record and
the Declaration of Dongxiao Yue (“Yue Decl.”), filed concurrently.
plaintiff Dongxiao Yue (“Dr. Yue” or “Yue”), will move the Court for
FACTUAL BACKGROUND
Since 1994, Yue, a Chinese software developer, had been developing
software named “PowerRPC.” In July 1996, Yue founded the company
“Netbula, LLC” (“Netbula”). This case involves the copyright of the
code Yue wrote before Netbula came to exist, with U.S. registration
number TXu 1-576-987 (“the `987 Copyright)1. Yue always owned this
copyright2.
In 2000, StorageTek purchased eight (8) PowerRPC SDK licenses and 1000
runtime licenses. Yue delivered PowerRPC to StorageTek on a CD with
license information printed on it: “8 Developers 1000 runtime”. This
information was also embedded in the software and would be displayed
on the computer screen when a user ran the software.
Soon afterward, StorageTek falsely claimed that it stopped using or
distributing PowerRPC. In fact, it developed many products with
PowerRPC and far exceeded the number of licenses. One StorageTek
product that incorporated PowerRPC is the “LibAttach” software. Lisa
K. Rady, the StorageTek program manager for the LibAttach software,
wrote in an internal email:
As you can see, we have exceeded the 1,000 distributions that we had
right to with Netbula…. I think it is obvious that engineering has not
and did not monitor the distributions on this product.
In the responding email, Michael Melnick, another StorageTek manager,
wrote:
The agreement is specific to platform (Win NT and 95/98 platforms)
types of Netbula software (PowerRPC SDK). This concerns me greatly...
At the time of these emails, StorageTek already developed LibAttach by
using PowerRPC on Windows 2000 – an unlicensed platform. StorageTek
also sold unlimited licenses which allowed StorageTek customers to
make unlimited copies of PowerRPC for unlimited concurrent use.
StorageTek also granted its customers “floating” licenses, which
limited the number of concurrent users but permitted unlimited number
of copies of PowerRPC. StorageTek only purchased eight (8) SDK
licenses in 2000. But more than eight users had used PowerRPC SDK on
multiple computers. See, Counts I-V of the First Amended Complaint
(“FAC”).
In 2004, StorageTek decided to upgrade PowerRPC. Concealing the fact
that it had exceeded the licenses, StorageTek purchased one (1)
PowerRPC SDK license and 1000 runtime licenses for a newer version of
PowerRPC. Again, StorageTek distributed more than 1000 copies of the
newer version of the PowerRPC, sold unlimited licenses and “floating”
licenses. See, Counts V-IX of the FAC.
In mid 2005, Yue started to suspect that StorageTek might have made
unauthorized copying of PowerRPC. In mid 2005, right before it was
acquired by Sun, StorageTek finally admitted that it had distributed
at least 7455 copies of PowerRPC. Yue later discovered evidence of
infringement on a far larger scale and continuing infringement as
recent as late 2007.
In December 2006, Netbula filed a civil action
against StorageTek and Sun, alleging infringement of the `063
Copyright, fraud, breach of contract and unfair competition (Case No.
C-06-07391, N.D. Cal, the “Netbula-Sun” case). Sun counter-claimed Yue
personally for allegedly infringing the Java trademark.
RELEVANT PROCEDURAL BACKGROUND
On October 22, 2007, acting pro se, Yue filed a FRCP 24(a) motion to
intervene and join as a party in Netbula-Sun, requesting injunctive
relief due to ongoing infringement of Yue’s personally owned
copyrights. Netbula-Sun was then presided over by Judge Jenkins and no
dispositive motion was pending. Yue’s motion was set for hearing on
November 27, 2007.
The next day, on October 23, 2007, Netbula deposed Michael Abramovitz,
a FRCP 30(b)(6) witness offered by Sun. After the deposition, Sun
filed a motion for summary judgment.
Netbula and Yue informed the District Court that Yue would have to
assert his own claims against Sun, multiple times3. They suggested
that the most efficient approach was for Yue to join Netbula-Sun; the
alternative would be for him to file a separate action.
Yue sought a stipulation from Sun for him to join Netbula-Sun. Sun
refused. Instead, Sun filed an “administrative” request to vacate the
hearing of Yue’s rule 24(a) motion to join Netbula-Sun and Yue’s
motion for injunctive relief. On October 31, 2007, in a hearing
without Yue’s participation, Judge Jenkins granted Sun’s request and
vacated the hearing of “Non-Party Dongxiao Yue’s” motions. After his
effort to join Netbula-Sun blocked, on November 19, 2007, Yue filed
the instant Yue v. Sun case (“Yue-Sun” or “Yue”, Case No. C07-05850),
alleging ten (10) counts of willful copyright infringement. The case
was assigned to District Judge the Honorable Susan Illston.
The following day, November 20, 2007, at a hearing in Netbula-Sun,
Judge Jenkins ordered Yue to “cease and desist” from filing pleadings
or speaking in court. The Judge and the parties also made it clear
that “the only copyright at issue” in Netbula-Sun was the `063
copyright. Judge Jenkins also suggested Sun to question the validity
of the assignment of the `063 copyright, so “he is not substituted in
as a party” in Netbula-Sun. See Doc. No. 64. Sun then filed a motion
to relate Yue-Sun to Netbula-Sun4. Because motion papers for relating
the cases must be filed in the earlier case ---Netbula-Sun, Yue did
not file any response to Sun’s motion to relate the cases in light of
the “cease and desist” order. On December 10, 2007, Yue filed the
First Amended Complaint (“FAC”), alleging willful direct and/or
secondary infringement by five individual defendants.
Sun’s motion for summary judgment in the Netbula-Sun case was heard on
December 14, 2007. At the hearing, Judge Jenkins re-iterated that Yue
– the pro se plaintiff in Yue-Sun -- may not speak to him. As to Yue-
Sun, the Judge stated that “it’s not completely overlapping with the
present [Netbula-Sun] claim.” As to Netbula’s copyright claim in
Netbula-Sun, Judge Jenkins stated: “this claim may survive.” See,
Exhibit B to the Declaration of Yue (transcript).
On December 17, 2007, Yue wrote a letter to Judge Jenkins, again
seeking clarification on whether he was allowed to file papers before
the Judge. Yue wrote, if permitted, he would file a “response” to
Sun’s motion to relate Yue-Sun to Netbula-Sun.
On January 2, 2008, Yue moved before Judge Illston for default
judgment against Sun and StorageTek. Sun filed an opposition. Yue
filed a reply brief on January 8, 2008. The next day, on January 9,
2008, a backdated order was entered to relate Yue-Sun to Netbula-Sun.
On January 10, 2008, the Executive Committee of the Court reassigned
Yue-Sun to Judge Jenkins. On January 18, 2008, Judge Jenkins granted
Sun’s motion for summary judgment as to the copyright claim in Netbula-
Sun.
On January 28, 2008, attorney Elena Rivkin noticed her appearance as
counsel for Yue in Yue-Sun. On February 21, 2008, Yue filed a motion
to proceed as a pro se plaintiff again.
On March 4, 2008, Judge Jenkins dismissed the instant case with
prejudice and entered final judgment against Yue. Judge Jenkins also
denied Yue’s request to proceed pro se.
On March 10, 2008, Yue filed a motion to disqualify Fenwick & West,
LLP (“Fenwick”) in the related Yue v. CSI case (Case No. C08-0019-JW).
Yue had complained about Fenwick’s apparent conflict of interest and
unprofessional conduct since 2007. This disqualification motion was
later consolidated with a motion to disqualify Fenwick in Yue-Sun.
On March 18, 2008, Yue filed a motion in the Yue v. CSI case and Yue-
Sun to disqualify Judge Jenkins under 28 U.S.C. §144 etc. Pursuant to
Civ. L.R. 3-15, Yue requested the Clerk to refer the motion to a
randomly assigned judge for determination. On the same day, Sun filed
a motion for attorney’s fees, seeking $92,000 in fees and costs. On
March 21, 2008, Judge Jenkins referred the attorney’s fees motion to
Magistrate Judge Elizabeth D. Laporte.
On March 26, 2008, Yue filed a motion for relief from judgment under
FRCP 60(b). On April 1, 2008, Yue filed an opposition to Sun’s motion
for attorney’s fees and a notice of appeal. On April 8, 2008, Sun
filed a reply brief to Yue’s opposition to the motion for attorney’s
fees, seeking $134,000 in fees and costs.
On April 9, 2008, this case was reassigned to U.S. District Judge the
Honorable James Ware.
On June 16, 2008, Yue filed a motion to strike Sun’s motion for
attorney’s fees for its counsel’s failure to comply with Civil Local
Rule 54-6, which states that Counsel must meet and confer to resolve
fee disputes. Sun never attempted to discuss its fee demand with Yue
before filing the motion.
On July 22, 2008, the hearing of Sun’s fee motion and Yue’s motion to
strike was held before Judge Laporte. Yue argued the motions himself.
On July 23, 2008, the Court signed an order that “allows Elena Rivkin
Franz to withdraw as counsel of record” for Yue and “[s]ubstituting
Dongxiao Yue as new counsel of record, in propria persona” in this
case. Doc. No. 136.
On July 23, 2008, Sun filed a declaration stating that an additional
$87,000 in fees had been incurred. On July 24, 2008, Judge Ware denied
the motion to disqualify Judge Jenkins as moot; denied the rule 60(b)
motion for lack of jurisdiction; denied the motion to disqualify
Fenwick.
On August 6, 2008, Magistrate Judge Laporte recommended that Sun be
awarded $219,949.90 in attorney’s fees and costs under §505 of the
Copyright Act.
OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
For the following reasons, Plaintiff respectfully objects to the
Magistrate Judge’s report and recommendation.
GENERAL OBJECTIONS
Objection 1: Catch-22 is Impermissible
To protect his copyrights, Yue first attempted to join Netbula-Sun;
Sun opposed Yue’s joinder request and the Court vacated Yue’s request
to join; since he could not join Netbula-Sun, Yue filed a separate
action; then Sun alleged that Yue was virtually represented in Netbula-
Sun, therefore Yue-Sun was duplicative and must be dismissed. No
matter what he did, Yue could not have his day in court to protect his
copyrights. This is a classic trap:
There was only one catch and that was Catch-22, which specified that a
concern for one's own safety in the face of dangers that were real and
immediate was the process of a rational mind. Orr was crazy and could
be grounded. All he had to do was ask; and as soon as he did, he would
no longer be crazy and would have to fly more missions. Orr would be
crazy to fly more missions and sane if he didn't, but if he was sane
he had to fly them. If he flew them he was crazy and didn't have to;
but if he didn't want to he was sane and had to. Yossarian was moved
very deeply by the absolute simplicity of this clause of Catch-22 and
let out a respectful whistle.
"That's some catch, that Catch-22," he observed.
"It's the best there is," Doc Daneeka agreed.
Rhodes v. Robinson, 380 F.3d 1123, 1129 (9th Cir. 2004) (quoting
Joseph Heller, Catch-22, at 47 (6th ed. 1976)). Catch-22 is a trap
with no way out. In this case, Yue could not have his day in court to
litigate the merits of his copyright claims no matter what he did.
Such Catch-22 scheme is impermissible, and Sun’s tactics must fail.
Objection 2: Defendants are not Prevailing Parties for the Purpose of
Section 505 of the Copyright Act
A defendant may be deemed the "prevailing party" under the Copyright
Act when it successfully defends against the significant claims
“actually litigated” in the action. Screenlife Establishment v. Tower
Video, Inc., 868 F. Supp. 47, 50 (S.D.N.Y. 1994). See also, Torres-
Negrón v. J & N Records, 504 F.3d 151, 164 (1st Cir. 2007) (“We have
made no ruling on [plainitff’s] claims of infringement. Therefore,
[defendant] has not prevailed on the merits of the copyright
infringement allegations and is not entitled to a fee award under the
statute.”). See also, Buckhannon Bd. & Care Home, Inc. v. W. Vir.
Dep't of Health & Human Res., 532 U.S. 598, 603-04 (2001) (“Our ‘[r]
espect for ordinary language requires that a plaintiff receive at
least some relief on the merits of his claim before he can be said to
prevail.’” (citing Hewitt v. Helms, 482 U.S. 755, 760 (1987)).
This makes sense. Without a ruling on the merits of the copyright
claims, it would be impossible to apply the Fogerty factors (such as
frivolousness and objective unreasonableness) and to determine whether
awarding fees would be faithful to the purpose of the Copyright Act.
See, Perfect 10 v. Ccbill LLC., 488 F.3d 1102 (9th Cir. 2007) (denying
attorney’s fees and costs because “Perfect 10's legal claims are not
frivolous or objectively unreasonable.”).
Defendants obtained final judgment in their favor solely on “virtual
representation” theories that were recently disapproved by the U.S.
Supreme Court in Taylor v. Sturgell. In this case and the related
Netbula-Sun case, Sun and StorageTek have not obtained finaljudgment
on the merits of any of the copyright claims. The factual allegations
and merits of the ten (10) claims in the instant Yue-Sun case were not
analyzed in the dismissal order. Therefore, Defendants were not
prevailing parties for the purpose of Section 505 of the Copyright
Act.
Objection 3: The Magistrate Judge Did Not Consider the Pivotal
Criterion Required by the Ninth Circuit for Awarding Fees under the
Copyright Act
In Berkla v. Corel Corp., 302 F.3d 909 (9th Cir. 2002), Corel Corp
successfully defended a copyright infringement claim. On whether Corel
should be awarded attorney’s fees under the Copyright Act, the Ninth
Circuit held:
courts may not rely on the Lieb factors if they are not `faithful to
the purposes of the Copyright Act.' Faithfulness to the purposes of
the Copyright Act is, therefore, the pivotal criterion." Fantasy, Inc.
v. Fogerty, 94 F.3d 553, 558 (9th Cir. 1996).
Berkla, 302 F.3d at 922-923. In denying fees award to the prevailing
defendant, the Ninth Circuit held that while the defendant did not
technically infringe copyright, its conduct “nevertheless constituted
a highly questionable business practice” and “[i]t would be
inconsistent with the Copyright Act's purposes to endorse
[defendant’s] improper appropriation of [plaintiff’s] product by
awarding fees.” Berkla, 302 F.3d at 923 (emphasis added).
Berkla is unambiguous in holding that awarding fees to a prevailing
defendant who engaged in questionable business practice would be
inconsistent with the purpose of the Copyright Act. The facts alleged
in the FAC include deceptive, fraudulent and oppressive conduct,
destruction of evidence and misappropriation of Plaintiff’s software.
Awarding fees to Defendants would thus be endorsing highly
questionable business practice.
Objection 4: The Court Lacked Jurisdiction to Adjudge the
Reasonableness of the Copyright Claims Post-Judgment because Judge
Jenkins Did Not Make Such Findings
In the dismissal order, Judge Jenkins did not make a finding of fact
or law on the merits of 10 infringement claims in Yue-Sun. The instant
Yue-Sun case was dismissed solely on the ground of non-party
preclusion by virtual representation.
In their motion for attorney’s fees, Sun argued extensively on the
merits of the copyright claims. For instance, citing Michael
Abramovitz’s declaration made in Netbula-Sun, they claimed that Sun
ceased the alleged infringement in late 2005; they say therefore Yue’s
claims were objectively unreasonable. Yue refuted Abramovitz’s
declaration with Abramovitz’s own deposition testimony. Sun then
switched to the allegations against Schwartz, knowing that Yue had no
chance to respond further.
But, in any case, Judge Jenkins’s dismissal order did not reach the
substantive issues of the copyright claims. The 10 infringement claims
accused Defendants of very specific unlawful acts. There was no ruling
that decided that any of the 10 claims failed to state a claim for
copyright infringement. There was no discovery, no adversarial process
taken to determine validity of the claims and truthfulness of the
facts.
Because the case is on appeal, the District Court does not have
jurisdiction to decide any substantive issues (such as objective
unreasonableness of the claims) that had not been resolved before
judgment. As stated above, the dismissal order was solely grounded on
the theory of virtual representation. No determination on the merits
of the 10-count infringement claims was ever made. Plaintiff will be
glad to have a chance to litigate the merits of these claims, if he is
allowed to do so following proper procedures.
Objection 5: Legal Fees on Collateral Matters are not Awardable under
the Copyright Act
"Under the American rule, absent contractual or statutory
authorization, a prevailing litigant ordinarily may not collect
attorneys' fees". International Union of Petroleum & Indus. Workers v.
Western Indus. Maint., Inc., 707 F.2d 425, 428 (9th Cir. 1983).
Defendants requested fees for the work related to the motion to
disqualify Judge Jenkins and the motion to disqualify Fenwick & West.
The motion to disqualify the judge was made pursuant to 28 U.S.C. §§
144 and 455. The motion to disqualify Fenwick was based on the rules
of professional conduct and Fenwick’s apparent conflict of interest
and direct communications to Yue on Netbula matters. These collateral
matters were separate from and independent of the merits of the case.
In fact, both disqualification motions were originally filed in the
Yue v. CSI case and were later cross-filed in Yue-Sun. Defendants
cited no authority to show that the fees arising under the rules of
professional conduct and 28 U.S.C. 144 and 455 are awardable under the
Copyright Act5.
Objection 6: Post-Judgment Legal Fees are not Awardable under the
Copyright Act
Final judgment in the case was entered on March 4, 2008. The action
had been terminated. Therefore, there had been no longer a “civil
action” under the Copyright Act pending before the District Court.
Brayton Purcell Llp v. Recordon & Recordon, 487 F. Supp.2d 1124
(N.D.Cal. 2007). The post-judgment matters did not arise under the
Copyright Act and related fees are not awardable under the Copyright
Act. Yue did not even have a chance to contest these additional fees
--- defendants simply submitted supplemental declarations with
additional fees demands.
Objection 7: “Fees upon fees” are not Awardable under the Copyright
Act
Over $60,000 of the Defendants’ fees was for preparing and filing
their motion for attorney’s fees. Such “fees upon fees” were not
authorized by the Copyright Act. See, e.g., Identity Arts v. Best Buy
Enterprise Services Inc., No. C 05-4656 PJH. (N.D.Cal. 3-26-2008) (Doc.
167) (“defendants have not submitted any controlling authority
regarding the availability of fees upon fees vis-a-vis the Copyright
Act specifically. Accordingly, the court declines to award such
fees.”)
Objection 8: The Magistrate Did Not Make a Detailed Lodestar Analysis
Defendants requested over $220,000.00 in attorneys fees. About
$150,000.00 of which was incurred after the case was terminated. In
computing an award, the Court should provide a "detailed account of
how it arrives at appropriate figures for `the number of hours
reasonably expended' and `a reasonable hourly rate.'" Hensley v.
Eckerhart, 461 U.S. 424, 436 (1983). Determining a reasonable hourly
rate is a critical inquiry. Jordan v. Multnomah County, 815 F.2d 1258,
1262 (9th Cir. 1987) (citing Blum v. Stenson, 465 U.S. 886, 895 n. 11
(1984)). The Court may not merely refer to the rates actually charged
to the prevailing party. Chalmers v. City of Los Angeles, 796 F.2d
1205, 1210-11 (9th Cir. 1985). As for the number of hours, only hours
found to have been reasonably expended may be allowed. Hensley, 461
U.S. at 434. The fee applicant must justify her claim by submitting
detailed time records. U.S. v. City and County of San Francisco, 699
F. Supp. 762 (N.D. Cal. 1988). The documentation submitted should be
sufficient to satisfy the Court that the hours expended were actual,
non-duplicative and reasonable, and to apprise the Court of the nature
of the activity and the claim on which the hours were spent. See
Hensley, 461 U.S. at 437. The Magistrate Judge made no lodestar
analysis to determine the reasonable rates of and reasonable hours
spent by the attorneys. For instance, Pulgram’s rate increased from
$625 per hour in December 2007 to $690 per hour in January 2008. Why
the two different rates were reasonable were not analyzed. Also, as
Yue pointed out at the hearing before Magistrate Judge Laporte, many
of the fee entries did not make sense, such as an entry for
negotiating a protective order and entries about conferring with
“counsel for Plaintiff” while Plaintiff was a pro se. See, Yue Decl.,
Ex.C (transcript).
Objection 9: Block Billing Made it Impossible to Determine the
Reasonableness of Fees
In Defendants’ fee schedule, there were numerous entries where an
attorney billed many hours (up to 11.30 hours a day) in a single time
slot, without providing the details. See Objection 28 below for some
examples. “[B]lock billing — the lumping together of multiple tasks in
a single time entry — makes it impossible to determine the
reasonableness of the time spent on each task.” Petroleum Sales, Inc.
v. Valero Refining Co. — Calif. , No. C 05-3526 SBA. (N.D.Cal.
9-11-2007) (Doc. No. 143). In Petroleum Sales, Judge Armstrong ruled:
five problematic instances of block billing are the entries by Esmaili
for 4.3 hours on May 1, 2006; 4.5 hours on June 15, 2006; 2.4 hours on
August 8, 2006; 5 hours on August 9, 2006; and 6.9 hours on August 10,
2006. The Court will therefore exclude the total of this time (23.1
hours) from the lodestar.
Id. at p.12. Accordingly, Sun’s block billing entries should be
excluded.
SPECIFIC OBJECTIONS (Nos. 10 to 29)
In addition to the general objections above, Plaintiff raises the
following specific objections to the Recommendation of the Magistrate
Judge (“RMJ”).
RMJ at p.1:20-22: “On December 14, 2007, the Court ordered that no
responsive pleadings would be due until such time as the Court set a
date at the upcoming status conference. Despite this order, Plaintiff
filed a motion for default judgment, which the Court denied.”
Objection 10: On December 14, 2007, Yue-Sun had not yet been
reassigned to Judge Jenkins. The Executive Committee reassigned the
case to Judge Jenkins after the completion of the briefing of the
motion for default. "[T]he structure of the federal courts does not
allow one judge of a district court to rule directly on the legality
of another district judge's judicial acts or to deny another district
judge his or her lawful jurisdiction." In Re McBryde, 117 F.3d 208,
225 (fn.11) (5th Cir. 1997). "No express or implied power is granted a
chief judge to affect administratively, directly or indirectly,
litigation assigned to and pending before another judge of the court."
United States v. Heath, 103 F. Supp. 1, 2 (D. Haw. 1952). The
situation was at least confusing to Yue.
RMJ at p.2:3-5: “In that case, the Court granted Defendants’ motion
for summary judgment based on its determination that Defendants’ use
of Netbula’s software was within the scope of the 2000 and 2004
license agreements between Netbula and StorageTek.”
Objection 11: The summary judgment order in Netbula-Sun only addressed
three narrow issues: (1) the number of users of the SDK; (2) the
excess distribution of the PowerRPC runtime; (3) the non-assignment
clause of the agreement. That order did not address other infringement
claims. For more detailed analysis of the Netbula-Sun order, see
Objection 22 below. In addition, the fraud, contract and unfair
competition claims are ongoing in Netbula-Sun.
RMJ at p.2:6-7: “In determining that this action was duplicative of
Netbula-Sun, the District Court found that this case presented the
same claims already asserted.”
Objection 12: Plaintiff created a large table showing the differences
between the two cases. These differences were not analyzed in the RMJ.
RMJ at p.2:7-10: “In fact, many of the allegations in the complaint
that Plaintiff claimed constituted additional facts in this case were
a verbatim restatement of Yue’s declaration presented in opposition to
the Netbula-Sun defendants’ motion for summary judgment.”
Objection 13: Yue’s declaration in Netbula-Sun was not a complaint.
The declaration could not be used to assert additional claims. Yue’s
declaration had 88 paragraphs, with 45 exhibits, providing a lot of
detail about Sun’s infringing activities and fraudulent conduct. The
Netbula-Sun court only made reference to paragraphs 35, 40, 49 and
Exhibit 13 (a release note of LibAttach Software) of Yue’s
declaration6. The only references to Yue’s declaration in the Netbula-
Sun summary judgment order were made in the following context:
StorageTek purchased at least one more license. (See Yue Decl., ¶¶ 35,
49; Defs.' Mem. of P. & A. at 23.)
Plaintiff's evidence consists of "release notes" regarding
StorageTek's LibAttach 1.1 software, which state that this software
supports Windows 2000 systems, purportedly showing that it was
developed for Windows 2000. (Yue Decl. ¶ 40; Exh. 13)
RMJ at p.2:10-11: “In addition, the Court granted summary judgment on
the merits of claims in Netbula-Sun that were now presented in this
case.”
Objection 14: The Yue-Sun case had 10 counts of infringement claims.
The comparison table in Yue’s opposition brief showed that most of the
claims were not in the Netbula-Sun case. In addition, the Yue-Sun case
is about infringement of different intellectual property rights owned
by Yue and not in Netbula-Sun. On December 14, 2007, Judge Jenkins
clearly stated that Yue-Sun “is not completely overlapping with
[Netbula-Sun].” Although Judge Jenkins granted summary judgment as to
the copyright claim in Netbula-Sun on January 18, 2008, he made no
decision on the merits of the 10 infringement claims in Yue-Sun.
RMJ at p.2:10-15: “Finally, the Court found that the two actions
involved infringement of the same rights. Even though Plaintiff
claimed that Defendants’ use of software impacted additional
copyrights, Netbula should have asserted violations of those
copyrights in Netbula-Sun, rather than filing this subsequent
lawsuit.”
Objection 15: Yue-Sun involved the infringement of the `987, `847 and
`697 copyrights by different types of infringing activities. The
Magistrate Judge overlooked the following:
(1) The `987 Copyright was always owned by Yue. Netbula never had any
standing to sue for this copyright. See, e.g., Triple Tee Golf, Inc.
v. Nike, Inc., NO. 4:04-CV-302-A. (N.D.Tex. 8-10-2007) (the
corporation plaintiff had no standing to sue on copyright owned by its
founder Jack Gillig).
(2) After Netbula transferred the `847 and `697 copyrights to Yue in
September 2007, it lost standing on these two copyrights. So Yue
sought to join Netbula-Sun.
(3) Judge Jenkins and Sun specifically constrained the Netbula-Sun
case to the `063 Copyright. The `063 Copyright was “the only copyright
at issue” in the Netbula-Sun case. The `987, `847 and `697 copyrights
were precluded from Netbula-Sun after Yue-Sun was filed.
(4) Yue was excluded from Netbula-Sun before and after Yue-Sun was
filed (Catch-22).
RMJ at p.2:19-20: “The Court further found that Plaintiff entered into
this assignment at least in part due to his desire to bring Netbula’s
then pending copyright claims in his own name, on a pro se basis.”
Objection 16: There is no evidence that the purpose of the assignment
of the `847 and `697 copyrights to Yue was for the purpose of bringing
the action pro se. Yue had original ownership of the `987 Copyright.
That copyright alone gave him the standing to prosecute his own
copyright claims without any assignment, pro se7 or otherwise.
RMJ at p.2:21-23: “In dismissing the action, the Court noted that
Plaintiff’s tactics have ranged from duplicative to nearly vexatious.”
Objection 17: The range of “from duplicative to nearly vexatious” was
not precisely defined. There is a qualitative difference between
“litigious” and “vexatious.” The heart of the vexatious litigant
analysis is to inquire whether the district court made "`substantive
findings as to the frivolous or harassing nature of the litigant's
actions.'" Molski v. Evergreen Dynasty, 500 F.3d 1047, 1059 (9th Cir.
2007) (per curium) (imposing pre-filing requirement for filing 400
lawsuits on near identical injuries). But, see also, Molski v.
Evergreen Dynasty., 521 F.3d 1215, 1220-22 (9th Cir. 2008), for the
dissenting opinion by Judge Kozinski and four circuit judges. At every
step, Yue followed the court orders, the rules and the controlling
authorities. The Court has not identified a single incident where Yue
filed a frivolous paper or acted in a harassing manner.
RMJ at p.3:3-5: “This was not the first time Plaintiff attempted to
avoid Judge Jenkins in this case, as he also sought leave to oppose
Sun’s earlier motion to relate this case to Netbula-Sun.”
Objection 18: A litigant should not care who the judge is, but what
the law is. But, when a judge orders a litigant to “cease and desist”
from filing papers, it was impossible for that litigant to
meaningfully proceed before the judge. Judge Jenkins “instructed Yue
that he could not file motions, notice hearing dates, or speak in
court unless he had leave of court or until he was given permission to
represent himself.” Doc. No. 142, Netbula-Sun (Feb 8, 2008). How can a
litigant present his case when the judge refuses to accept his papers
or listen to his arguments?
Yue did not oppose relating Yue-Sun to Netbula-Sun and he never
indicated that he would oppose relating Yue-Sun to Netbula-Sun. In all
his papers, he stated that he would file a “response” if he was
permitted to do so. A response is not necessarily an opposition. This
distinction is important: all Yue wanted was to make sure that he
could have his day in court once the case was reassigned to Judge
Jenkins.
RMJ at p.4:26-28: “In addition, Plaintiff’s complaint did not raise a
novel issue of law or fact or an objectively reasonable claim, as the
same basic claims had already been previously rejected by the District
Court.”
Objection 19: The Yue-Sun case was filed on November 19, 2008. The
summary judgment in Netbula-Sun was issued on January 18, 2008, two
months later. Yue could not possibly predict the outcome of Sun’s
summary judgment motion back in 2007. All facts and known caselaws
pointed to the conclusion that Sun’s conduct was plain software
piracy. Yue could not be charged with the duty to predict the Court’s
ruling from the parties’ papers either. After the completion of the
briefing on the summary judgment motion in Netbula-Sun, on December
14, 2007, Judge Jenkins specifically stated that the Netbula-Sun
copyright claim “may survive.” Even after the summary judgment order
in Netbula-Sun, Yue had no reason to believe that Yue-Sun would be
dismissed because Judge Jenkins stated that Yue-Sun is not completely
overlapping with Netbula-Sun.
There were 10 copyright infringement claims in this case. Judge
Jenkins had not made a finding on whether Plaintiff’s complaint raised
novel issue of law or fact or an objectively reasonable claim. Yue
didn’t have the chance to litigate the claims on the merits. The Court
does not have jurisdiction to make such conclusions on the merits now
when the case is on appeal.
RMJ at p.5:1-5: “Defendants’ degree of success in the action was
total, as they established that Plaintiff could not assert new
copyrights against Defendants for their use of Netbula’s software
pursuant to licenses, the subject of the prior suit.”
Objection 20: The summary judgment order in Netbula-Sun was not final
and it only covered certain narrow issues. To permanently extinguish
Yue’s copyright claims and declare Sun’s conduct protected by the
copyright law, there must be judgment on the merits. The Yue-Sun
dismissal order did not make any finding on the merits of the 10
infringement claims.
RMJ at p.5:7-15: “Plaintiff’s lawsuit was also objectively
unreasonable. In granting the motion to dismiss, the District Court
recognized that the caselaw clearly prevented a party or those in
privity from bringing a separate action involving the same subject
matter against the same defendants in a different action. See March 4,
2008 Order at 3-6 (quoting relevant case law including Adams v. Cal.
Dep’t of Health Servs., 487 F.3d 684 (9th Cir. 2007)).”
Objection 21: The Adams case was distinguishable from this case. In
Adams, the same party-plaintiff filed a second suit against the same
defendants while the first case is pending. In this case, a non-party
to Netbula-Sun filed the second suit. Moreover, the Adams case was not
a copyright case. As cited in Plaintiff’s briefs, the controlling
authority for this situation is Kourtis v. Cameron, 419 F.3d 989 (9th
Cir. 2005) (no privity relationship between an employer and an
employee who filed successive copyright lawsuits). In Kourtis, a
second copyright owner sued the same defendants on the same copyright
years after the first suit adjudicated that the defendants did not
infringe that copyright. Even though the Kourtis plaintiff was closely
involved in the first suit and was deposed as a witness in the first
suit, the Ninth Circuit found the second suit not precluded by the
first one. In addition, the U.S. Supreme Court has recently
disapproved the “virtual representation” grounds of non-party
preclusion in Taylor v. Sturgell, 128 S. Ct. 2161 (June 12, 2008).
RMJ at p.5:16-22: “In addition, the District Court’s previous order in
Netbula-Sun granting Defendants’ motion for summary judgment
established that Defendants’ use of Netbula’s PowerRPC software was
licensed and did not constitute infringement. See Jan. 18, 2008
Summary Judgment Order. The Court had already determined as a matter
of law that the license between Netbula and StorageTek foreclosed a
claim of copyright infringement.”
Objection 22: Judge Jenkins did not make a broad holding that “the
license between Netbula and StorageTek foreclosed a claim of copyright
infringement.” A licensee infringes when its copying exceeds the scope
of a license. Whether defendants copied the PowerRPC software without
a license or the copying exceeded the scope of a license is a factual
inquiry. In the January 18, 2008 summary judgment order, Judge Jenkins
decided the following issues:
1.
The User Count for the SDK license
The SDK licenses were purchased pursuant to a written purchase
agreement drafted by defendant Michael Melnick. The agreement stated
in part:
NETBULA grants STORAGETEK, a … license for use by STORAGETEK’s
employees, consultants and subsidiaries for up to ONE user(s), for
each of the licenses purchased, to use the PowerRPC SDK Product under
Windows NT and 95/98 platforms; each user can only use the software on
one computer….
The license is not transferable without written permission of Nebula…
Payment. You agree to pay NETBULA the amounts set forth in Exhibit C
in full payment for the rights and licenses granted…
On the number of users, Judge Jenkins wrote:
First, turning to the number of users, both the 2000 and 2004
Agreements state that one user may use each of the licenses purchased.
This provision does not limit how the software may be used… the
limitation on the number of users is a separate contractual promise,
or covenant, that does not limit or condition the use of the license.
Therefore, because this provision is not a limitation on the scope of
the license, Plaintiff is not entitled to a copyright infringement
claim on this issue.
Plaintiff could not find any prior authority which held that a “one
user on one computer’ restriction “does not limit or condition the use
of the license.” Thus, Judge Jenkins’s January 18, 2008 order
established a new precedent unknown to Yue when he filed the instant
action in 2007. Even so, Judge Jenkins’s conclusion was a narrow one.
In fact, in the same section of the order, Judge Jenkins recognized
that the platform restrictions "to use the PowerRPC SDK Product under
Windows NT and 95/98 platforms" did “limit the scope of the license
itself.” Regarding the StorageTek’s emails indicating they developed
software for Windows 2000, Judge Jenkins wrote that “Plaintiff offers
these communications… to show that StorageTek distributed software for
users on unlicensed platforms,” leaving such acts open for
infringement claims.
The Yue-Sun action, filed two months before that order, alleged
different infringing activities. On the infringement of the SDK, the
Yue-SunYue-Sun complaint alleged that Sun/StorageTek destroyed
evidence of the infringement by erasing the contents of computers.
Counts I, II, III, V and VII of the FAC. complaint alleged that Sun/
StorageTek infringed the SDK copyright by exceeding both the number of
users and the number of computers. Moreover, the
2.
The Excess Distribution of PowerRPC
The 2000 agreement stated that StorageTek “shall pay Netbula …for the
right to distribute up to 1000 units of software containing the
Supporting Programs." Netbula offered StorageTek to purchase
additional licenses. Sun and StorageTek admitted that the agreement
was a “prepayment” agreement. The licenses were not unlimited but
counted. Mr. Melnick wrote in an internal email: “The number that
Holly has provided and thought it may be low causes quite a problem
for you. We have only made 2 purchases for the rights to distribute a
total of 2000 licenses.” The situation is no different from a
bookstore (Netbula) offering customers (StorageTek) to buy books
(licenses). One who pays for one copy of a book but takes home two
copies commits theft. “Having taken the copyrighted material,
[defendant] is in no better position … than an ordinary thief.” Polar
Bear Productions, Inc. v. Timex Corp., 384 F.3d 700, 709 (9th Cir.
2004).
On exceeding the number of licenses, Judge Jenkins entered summary
judgment for Sun in Netbula-Sun on the ground that the “prepayment”
term is merely a contract covenant. Again, the order established a
precedent in copyright law. Recently, the Federal Circuit reversed
similar readings of a license agreement in Jacobsen v. Katzer, No. 06-
CV-01905 JSW, 2007 WL 2358628 (N.D. Cal. Aug. 17, 2007). See, Jacobsen
v. Katzer, 2008-1001 (Fed. Cir. 8-13-2008) (attribution clause in
Artistic License is not an independent contractual covenant). See
also, MDY Industries, Llc v. Blizzard Entertainment, Inc., No.
CV-06-2555-PHX-DGC (Ariz. 7-14-2008) (using an automated program to
play a licensed computer game constitutes copyright infringement). In
any case, Yue-Sun involved claims that are different, such as
distributing infringing derivative works, issuing floating licenses,
fail to comply with the limited distribution clause, inducing
infringement by others… See Counts IV, V, VIII and IX of the FAC.
(3) The Termination of the License Agreement upon Sun’s Acquisition of
StorageTek
The Netbula-StorageTek agreement was not transferable and was
terminated upon Sun’s acquisition of StorageTek. In the January 18,
2008 order, Judge Jenkins ruled that “this provision does not limit
the scope of the license.” However, in the instant Yue-Sun action
filed in 2007, Plaintiff contends that the license ceased to exist
because it was terminated. A non-existent license does not have a
scope. Therefore, the instant action was about the existence of the
license, not the scope. The claim was thus different. See Count X of
the FAC.
In summary, the January 18, 2008 order only resolved three narrow
issues. The Yue-Sun case filed in 2007 had 10 counts of infringement
that were distinctive from the claims in Netbula-Sun.
RMJ at p.5:20-23: “In addition, defense counsel warned Plaintiff that
before filing an entirely new and separate infringement action, he
should meet and confer with counsel because the action was
duplicative, advising that Sun would seek to recover attorney’s fees.”
Objection 23: Yue requested Sun to stipulate to Yue’s joinder in
Netbula-Sun. Sun refused to stipulate. Instead, Sun filed a motion to
vacate Yue’s motion to join Netbula-Sun, forcing Yue to file a
separate lawsuit. Judge Jenkins later concluded that new lawsuit --
Yue-Sun -- was not completely overlapping with Netbula-Sun. Yue Decl.,
at ¶10, Ex. B. Yue had no reason to believe that defense counsel knew
better than the judge. Ninth Circuit’s controlling authority on
successive copyright suits by a non-party seemed to be the case of
Kourtis v. Cameron, 419 F.3d 989 (9th Cir. 2005). Yue had the right to
bring the additional claims on his personally owned `987, `847 and
`697 copyrights that were excluded from Netbula-Sun.
RMJ at p.5:25-28: “While the Supreme Court recently disapproved of the
doctrine of preclusion by virtual representation, see Taylor v.
Sturgell, 128 S. Ct. 2161, 2173 (June 12, 2008), it noted that non-
parties to the prior litigation may be precluded under certain
recognized exceptions... Here, the District Court found privity based
on assignment. In addition, Yue appears to have assumed control over
the earlier litigation.”
Objection 24: “[P]rivity has shown itself to be an elusive and
manipulable concept” and should be only used as “a convenient means of
expressing conclusions that are supported by independent analysis.”
Meza v. General Battery Corp., 908 F.2d 1262 (5th Cir. 1990) (internal
quotes and citations removed). Under federal law, “concepts summarized
by the term privity are looked to as a means of determining whether
the interests of the party against whom claim preclusion is asserted
were represented in prior litigation.” Chase Manhattan Bank, N.A. v.
Celotex Corp., 56 F.3d 343, 346 (2nd Cir. 1995). “Privity may exist
for the purpose of determining one legal question but not another
depending on the circumstances and legal doctrines at issue.” Id. Such
inquiry avoids the fallacy of circular logic. Yue sued on the `987
Copyright, which he always owned, Netbula had no standing on sue on
it. Though the `847 and `697 Copyrights were assigned, they were not
litigated in Netbula-Sun – they were excluded. The `063 copyright was
the only one at issue in Netbula-Sun. Judge Jenkins made no finding
that Yue assumed control of Netbula-Sun.
RMJ at p.6:1-9: “As to factual reasonableness, Plaintiff alleged
claims against Sun’s officers based on communications between them and
Plaintiff in 2006. However, Plaintiff knew from the factual record in
Netbula-Sun that the allegedly infringing acts stopped in late 2005.
For example, he was present at the deposition where Sun’s Rule 30(b)6)
witness testified that it removed the allegedly infringing Netbula
software in late 2005. See Netbula-Sun Docket No. 107, Ex. 44 at 3.
While Yue argues that the evidence shows ongoing infringement as
recently as 2007, he does not state how the individual defendants are
connected to such alleged ongoing infringement. While Yue attacks
Abramovitz’s credibility, he does not offer any factual basis for
naming the particular two high level officers in this action,
revealing that the allegations against them are speculative.”
Objection 25: On October 23, 2007, Abramovitz testified about his
personal acts of erasing the PowerRPC software from computers8. As
cited in Yue’s opposition to the fees motion, Abramovitz admitted
having no knowledge about the control and monitoring of the
distribution of PowerRPC within or outside Sun/StorageTek. He did not
even know who had that knowledge. He was a test engineer. Abramovitz
only talked about his own actions of removing the software. Sun’s
managers, such as DeCecco and Melnick, submitted declarations in
Netbula-Sun, but none of them was willing to state that Sun stopped
the alleged infringement at any time. Therefore, the allegation that
Sun stopped the alleged infringement in late 2005 was unfounded. The
Netbula-Sun Court made no finding of fact that Sun or its customers
stopped the alleged infringement anywhere.
The Magistrate Judge stated that although Yue presented evidence that
there was infringement as recent as 2007, his claims against two high-
level Sun executives were “speculative.” In the FAC, Yue alleged
specific facts that support Schwartz, Melnnick and DeCecco’s
liabilities under the copyright law. Moreover, judgment in the case
was entered at the “motion to dismiss” stage. Under Federal Rule of
Civil Procedure 8(a), as long as Yue gave defendants a fair notice of
the claim and the ground upon which it rests, “[s]pecific facts are
not necessary.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007).
Thus, the FAC satisfied the notice pleading standard.
In any case, Judge Jenkins did not rule on any of such substantive
issues regarding the sufficiency of the infringement claims or whether
they are speculative. The district court did not have jurisdiction to
resolve these issues as the case was on appeal.
RMJ at p.6:12-14: “In particular, the number of unsuccessful motions
for recusal and for relief from judgment indicates that Plaintiff
filed repetitive motions that lacked merit, which only served to
increase fees.”
Objection 26: The Court has not identified any of Yue’s motions to be
frivolous. Yue did not file repetitive motions. The rule 60(b) motion
was re-filed because the Court had ordered Yue to do so.
As for Plaintiff’s motion to disqualify counsel, the Court had
narrowed the issues to whether a former Fenwick attorney presumably
shared confidences within Fenwick on a prior case involving PowerRPC.
In similar situations, a law firm is disqualified. See, e.g., Cho v.
Superior Court, 39 Cal.App.4th 113 (1995) (former settlement judge in
a related case was hired by the law firm, the law firm was
disqualified); McKenzie Const. v. St. Croix Storage Corp., 961 F.Supp.
857 (V.I. 1997); Fields-D'arpino v. Restaurant Associates, 39 F.Supp.
2d 412(S.D.N.Y. 1999); Poly Software Intern., Inc. v. Su, 880 F. Supp.
1487(Utah 1995).
As for the disqualification of the former judge, it was filed on March
18, 2008, under the authority of Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 108 S. Ct. 2194 (1988). Judge Ware’s
finding that the issue was moot due to intervening events does not
make the motion frivolous or lacking merit.
RMJ at p.6:15-19: “In addition, Plaintiff’s pro se status does not
warrant leniency here, where Plaintiff has received much education
throughout the multiple cases that he and Netbula have litigated. He
also has had counsel at times in this litigation and Netbula is still
represented by counsel in Netbula-Sun. As to Plaintiff’s allegations
of bias on the part of Judge Jenkins, Yue sets forth no factual basis
for them.”
Objection 27: Yue-Sun was the first copyright case Yue litigated
himself. On March 18, 2008, defense counsel contacted Yue by email
stating that Yue was a pro se again. Yue Decl. at ¶¶ 3-8. However, as
Judge Ware noted in a recent order,
In the Court’s Order Granting Defendants’ Motion to Dismiss the STK II
[Yue-Sun] action, the Court found that the rights of Netbula and Yue
are deeply intertwined,” and that Dr. Yue could not represent Netbula
pro se.
Docket entry 51 states that “The Court DID NOT GRANT plaintiff REQUEST
to proceed pro se.” Under Civil Local Rule 11-5, an attorney may not
withdraw until relieved by court order. It was not until July 23, 2008
that the Court granted attorney Elena Rivkin’s motion to withdraw.
As for the allegation of bias of the former judge, Yue supplied
certain evidence and indicated that he could provide more confidential
documents. Plaintiff does have a constitutional right to have an
impartial decision maker to decide his property rights. However, the
Court has ruled that issue is moot now. To show that he did not file a
baseless disqualification motion under 28 U.S.C. § 144 would require
Plaintiff to reopen the issue.
RMJ at p.7: 10-13: “Defendants seek fees and costs in excess of
$92,000 as of their opening brief, and over $134,000 as of the reply
brief. On July 24, 2008, Defendants submitted a supplemental
declaration stating that over $87,000 in additional fees had been
incurred since April 8, 2008, when the reply brief was filed. The
first amended complaint in this case lists ten claims, all for
copyright infringement. Therefore, there is no need to apportion
copyright versus non-copyright claims. The hourly rates charged by
Fenwick range from $245 per hour to $690 per hour. These rates are
comparable to other full service Bay Area law firms, Wakefield Decl. ¶
4, and are reasonable.”
Objection 28: “Plaintiff’s complaint did not raise a novel issue of
law or fact.” RMJ at p.4:27-28. The Court ruled that the instant
action was duplicative of Netbula-Sun. No analysis of the merits of
the 10-count infringement claims was made. The case was quickly
dismissed. No discovery was done. These factors would reasonably
suggest that this case should consume very little attorney time.
About 30% of the fees requested were the so called “fees upon fees” --
the attorney fees spent on the motion for attorneys’ fees. Defense
counsel’s “fees upon fees” was over $60,000.00 (sixty thousand
dollars). For instance, on March 4, 2008, Laurence Pulgram spent 1.8
hour conferring with his colleagues and clients on “strategies on
potential motion for attorney’s fees”; March 15 and 16, 2008, Albert
Sieber billed $5453 for 13.3 hours of work on drafting motion for
attorney’s fees; On March 17 and 18, 2008, Wakefield billed $8409.5
for 13.9 hours of work to “draft arguments for fee motion”; April 5
and 6, Sieber billed $4428 for 10.8 hours of work drafting the reply
brief for the fee motion; April 7, 2008, Wakefield billed $6292 for
10.4 hours of work for fee motion related work; April 8, 2008,
Wakefield, $5082 for 8.4 hours on reply brief for the fee motion and
Sieber billed for another 7 hours on the same task the same day. There
are many block billing entries with fewer hours, and they add up.
The opening brief of Sun’s fee motion totaled 19 pages. The argument
portion was about 9 pages and 4000 words. Of that, about three (3)
pages were dedicated to the analysis of two emails between Pulgram and
Yue on Netbula-Sun matters and one paragraph of the complaint. Defense
counsel have previously quoted and analyzed these communications in
their motion to dismiss. The rest of the six pages of argument consist
of standard arguments for asking fees, mostly repeating their
arguments in the motion to dismiss. Defense counsel billed over
$22,000.00 for preparing and filing the opening brief.
In Cancio v. Financial Credit Network, Inc, 2005 US DIST LEXIS 13626
at 16 (N D Cal 2005) (Henderson, J), the plaintiff asked $9312.00 for
spending 22.65 hours in preparing and filing the fee motion. Because
“[t]he issues raised by this fee application are neither novel nor
complex” and “[t]he litigation was limited in time and complexity”,
the court found the “fees on fees” to be too excessive and reduced the
amount to about $3000.
Unlike Cancio, this case was terminated without any ruling on the
merits of the 10-count infringement claims, and there was no discovery
or planning of discovery. In the more involved and more complex
Cancio, $9312 of “fees on fees” was excessive and the proper amount
should be $3000. Here, the “fees on fees” was over $60,000, twenty
(20) times more excessive.
Cancio was an FDCPA case, “fees upon fees” was allowed. There is no
similar allowance of “fees upon fees” under the Copyright Act.
Nevertheless, the amount of hours spent on “fees on fees” shows that
defense counsel’s hourly rate and hours are unreasonable. In addition,
Plaintiff re-states Objections 2-9 above, including “block billing” on
other tasks.
RMJ at p.8:19-20: “The prevailing party in a copyright infringement
action is also entitled to recover out of pocket expenses incurred by
the attorney and passed on to the client.”
Objection 29: Under the Copyright Act, the decision to award costs is
also discretionary and should be made only after the same analysis of
the fees award, for which the pivotal criterion is faithfulness to the
purposes of the Copyright Act.
MOTION FOR DE NOVO DETERMINATION AND CONCLUSION
Based on Objections 1-29 above and authorities cited, Plaintiff
respectfully disagrees with the Magistrate Judge’s report and
recommendation. Plaintiff requests the District Court to make a de
novo determination of Defendants’ motion for attorneys’ fees.
Respectfully submitted,
Dated: August 20, 2008
copyright
Plaintiff - Appellant,
v.
STORAGE TECHNOLOGY CORPORATION; SUN MICROSYSTEMS INC.; MICHAEL
MELNICK; JULIE DECECCO; MICHAEL P. ABRAMOVITZ; LISA K. RADY; JONATHAN
SCHWARTZ,
Defendants - Appellees.
On Appeal from the United States District Courtfor the Northern
District of California(District Case No. 5:07-CV-05850-MJJ)
REPLY BRIEF OF APPELLANT DONGXIAO YUE
Self-represented
I.INTRODUCTION
Plaintiff-Appellant Dongxiao Yue authored the “YUE PWRPC” software
(Reg. No. TXu 1-576-987)[1] before he founded Netbula. As a derivative
work of YUE PWRPC, the “1996 Copyright” litigated in Netbula-Sun only
protects the additional code that Netbula added from July 1996 to
September 1996. Yue is entitled to bring infringement claims on his
own copyrights.
The key question in this appeal is whether Yue and his copyrights were
adequately represented in the Netbula-Sun action. The answer is no. At
the district court, Defendants asserted that Yue and Netbula had
conflicting claims on the copyrights. This conflict alone precludes a
privity relationship between the two. In addition, the Netbula-Sun
court specifically excluded Yue and explicitly excluded the YUE PWRPC,
“00-SDK” and “2K4” copyrights. Therefore, Yue, a non-party to Netbula-
Sun, was not represented in Netbula-Sun as to his copyright claims.
The Adams case the district court relied on dealt with the situation
where a party filed a second suit. In this case, Yue is a non-party to
Netbula-Sun. Non-party preclusion by virtual representation has been
recently disapproved by the Supreme Court.
The rest of Sun’s arguments will be also addressed in more detail
below.
II.SUN’S SHAM ARGUMENTS
In Defendants’ Answer Brief (“DAB”), Sun claims that Netbula assigned
the copyrights to Yue “after the close of discovery” in Netbula-Sun.
DAB 2. This is false. The “00-SDK” and “2K4” copyrights were assigned
to Yue on September 26, 2007. ER.3:17-20. Netbula deposed Sun’s FRCP 30
(b) (6) witness Michael Abramovitz on October 23, 2007. ER.31:27-28;
See also, Exhibits to Appellees’ Supplemental Request for Judicial
Notice, SRJN071. There had been very little discovery in Netbula-Sun
[2]. On January 10, 2008, the Netbula-Sun court ordered that the “[d]
iscovery issues shall be discussed at next status conference hearing”
set for January 22, 2008. See, Civil Minutes (Document 136), Exhibit E
to Appellant’s Request for Judicial Notice (“RFJN”).
Defendants also contend that Yue’s action was a “parallel lawsuit to
circumvent” the Netbula-Sun summary judgment order. This is false. Yue
filed this lawsuit on November 19, 2007. The Netbula-Sun court issued
its summary judge order on January 18, 2008. Yue could not have
predicted the outcome of Yue-Sun when he filed the suit. In fact, the
Yue-Sun complaint was directly derived from the Yue’s October 22, 2007
motion to intervene and join Netbula-Sun. That motion was before Sun’s
motion for summary judgment in Netbula-Sun.
Falsus in uno, falsus in omnibus. The above are just two examples.
III.ARGUMENT
1.The Standard of Review Should be De Novo
Sun contends that the Court should follow Adams v. Cal. Dep’t of
Health Servs., 487 F.3d 684 (9th Cir. 2007)and apply abuse of
discretion standard on dismissing duplicative actions. As stated in
Appellant’s Opening Brief (“AOB”), the Adams case is inapplicable to
this lawsuit. In Adams,the same party-plaintiff filed a second suit
against the same defendants. In this lawsuit, a non-party to Netbula-
Sun filed the second case. The controlling authority for the instant
situation should be the copyright case Kourtis v. Cameron, 419 F.3d
989 (9th Cir. 2005) (no privity relationship between an employer and
an employee who filed successive copyright lawsuits against the same
defendant). This appeal has mixed questions of law and fact. De novo
review is the proper standard on the dismissal order.
2.Yue is Entitled to His Copyright Claims
Copyright in a work “vests initially in the author or authors” of a
work. 17 U.S.C. § 201(a). Yue authored the “YUE PWRPC” software from
1994 to July 1996, he has always been the owner of the YUE PWRPC.
Netbula, LLC was founded in July 1996. Its PowerRPC software was a
derivative work of YUE PWRPC. First Amended Complaint of Yue-Sun
(“FAC”) at ¶ 15; ER.3:14-17. The 1996 version of PowerRPC has
Registration No. TX 6-211-063 (the “1996 Copyright”). Netbula also
registered other versions of PowerRPC, including the “00-SDK” (Reg.
No. TX 6-437-847) and “2K4” (Reg. NoTX 6-491-697) copyrights.
“The copyright in a . . . derivative work extends only to the material
contributed by the author of such work.” 17 U.S.C. § 103(b)(emphasis
added). Elements drawn from a pre-existing work remain the property of
the owner of the pre-existing work and “[i]t is irrelevant whether the
pre-existing work is inseparably intertwined with the derivative
work.” Stewart v. Abend, 495 U.S. 207, 223 (1990).
In Oddo v. Ries, 743 F.2d 630 (9th Cir. 1984), Oddo and Ries formed a
partnership to create a book partially based on magazine articles Oddo
previously wrote. Dissatisfied with Oddo’s progress, Ries hired
another writer to complete the manuscript Oddo was writing and
published the finished book. The Ninth Circuit found that Ries did not
infringe the partnership’s copyright in the manuscript but infringed
Oddo’s copyrights in the magazine articles. Here, like Oddo, Yue
retained the copyrights in the YUE PWRPC software, from which PowerRPC
was derived.
Defendants point out that Yue granted Netbula an “oral license” for
creating derivative work. DAB 40. This fact shows that Yue retained
the ownership of YUE PWRPC copyrights, because an exclusive copyright
license or transfer of copyright ownership must be in writing.
Konigsberg Intern. Inc. v. Rice, 16 F.3d 355, 356–57 (9th Cir.1994).
See also Effects Assocs. Inc. v. Cohen, 352 908 F.2d 555, 557–58 (9th
Cir.1990).
3.Yue and Netbula Are Different Persons
Yue is a natural person; Netbula is an artificial entity founded in
July 1996. Netbula never owned the YUE PWRPC copyright and never had
standing to bring suit based on Yue’s copyrights, because “only owners
of an exclusive right in the copyright could bring suit.” Silvers v.
Sony Pictures Entertainment, Inc., 402 F.3d 881, 886 (9th Cir. 2005)
(individual cannot sue on copyrights owned by a company). See also,
Triple Tee Golf, Inc. v. Nike, Inc., NO. 4:04-CV-302-A. (N.D.Tex.
8-10-2007)(the corporation had no standing to sue on copyrights owned
by its founder).
4.Yue has an Independent Interest in Pursuing Copyright Claims Based
on the Yue PWRPC Copyright
YUE PWRPC was registered on November 27, 2007 with Registration Number
TXu 1-576-987. Yue timely informed this Court and the court below
about the status of registration[3] in July 2008.
Sun claims that the “pre-July 1996” YUE PWRPC copyright protected the
same thing: “the right to control copying of PowerRPC software”. DAB
36. This is incorrect. The “Netbula registrations” only cover the
software code added by Netbula in those particular versions. The pre-
Netbula elements Yue authored remain the property of Yue. Only Yue can
assert copyrights claims based on his copyrights[4]. See, Silvers.
Under the copyright law, Yue is entitled to recover damages and
defendants’ profits attributed to the infringement of Yue’s
copyrights; and Netbula is entitled to recover damages and profits
attributed to the infringement of Netbula’s copyrights. “Actual
damages are usually determined by the loss in the fair market value of
the copyright.” Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700,
708-09 (9th Cir.2004). In determining the damages, the features and
functionality of the software are factors to be considered.
SeeMontgomery v. Noga, 168 F.3d 1282, 1291-92 (11th Cir. 1999)
(discussing the software features, speed, percentage of source code
changes in the context of assessing damages). With respect to
Defendants’ profits, the factors such as software features and even
number of lines of code may be used as apportionment measures. For
instance, in the Netbula v. BindView case, defense counsel Laurence
Pulgram and Jedediah Wakefield attempted to use the lines of code to
determine the apportionment of BindView’s profits.
Defendants contend that “Netbula claimed to hold all such exclusive
rights in the PowerRPC product.” DAB 34-35 (emphasis added).
Defendants add the word “all” themselves. In Netbula-Sun, Netbula
alleged exclusive rights under the Copyright Act with respect to “the
only copyright at issue” -- the 1996 Copyright – in that case. Netbula
had no exclusive rights with respect to the pre-Netbula YUE PWRPC
code. Yue has the exclusive rights in the pre-Netbula software he
wrote.
5.Defendants Asserted that Yue and Netbula had Conflicting Claims on
the 1996 Copyright
As discussed at AOB 20, Defense counsel Laurence Pulgram wrote in one
of the motions below:
there is a common question of whether Yue or Netbula holds the
copyrights in the software, and what parts are owned by each.
ER.30:22-26.The word “or” in the “whether … or” construct leads to the
question: does Yue hold the copyrights, or does Netbula hold the
copyrights? Defendants elaborated their point further: for each part
of the software, they would question who owns the copyrights of that
part. Basically, they would pit Yue against Netbula in terms of
copyright ownership. Two persons claiming the same copyrights are
making conflicting claims.
Defendants’ game plan was fully revealed in the related litigation.
See, ER.52:7-18, Declaration of Yue at ¶¶5-6 (“Laurence Pulgram
pointed out that [Yue] owned the copyright”). This gambit prompted
Netbula to assign its “1996 Copyright” to Yue, in an effort to
streamline the litigation. Netbula also assigned the other copyrights,
including the “00-SDK” and “2K4” copyrights to Yue.
6.The District Court’s Erroneously Characterized the Assignment of the
1996 Copyright as “a bit of a shell game”
Because of the transfer of the 1996 Copyright, Netbula filed a motion
to substitute Yue as the plaintiff as to the copyright claim in
Netbula-Sun. The following was an exchange between Netbula’s former
counsel Vonnah M. Brillet and former presiding judge on the reason of
the assignment:
Ms. Brillet: Because of the fact that there are two portions of the
code that have been involved. One set is the set that was created
before the advent of Netbula, and the other set is after. So by making
him a party in this action now, there would just be one owner.
THE COURT: It’s a bit of a shell game, isn’t it? Isn’t that what it
is? They are one in the same… The only thing that’s accomplished there
is that he gets to stand before the Court and makes arguments.
Transcript of the November 20, 2007 hearing of Netbula’s Motion to
Substitute Party as to the Copyright Claim, pp.11:23-12:15; ER.39;
SRNJ016-17 (emphasis added).
The former judge’s characterization of the transfer as “a shell game”
was unfounded. “An author or proprietor of a literary work or
manuscript [or other work protected by the Copyright Act] possesses
such a right of sale as fully and to the same extent as does the owner
of any other piece of personal property. It is an incident of
ownership.” Davis v. Blige, 505 F.3d 90, 98 (2nd Cir. 2007). See also,
17 U.S.C. § 201(d)(1).As the owner of the “1996”, “00-SDK” and “2K4”
copyrights, Netbula had every right to transfer them to whoever it
liked.
Defendants’ allegation that Netbula transferred the copyright for the
purpose of allowing Yue to act pro se is unfounded. Yue always owned
the YUE PWRPC copyright, he did not need additional copyrights to
bring his action, pro se or not.
7.Yue Made Timely Requests to Join Netbula-Sun
On October 22, 2007, Yue filed a motion to intervene and join Netbula-
Sun. For the timeliness of the intervention, Yue argued:
The parties are still engaged in discovery of the first phase of the
case. There has been no dispositive motion filed. Therefore, Dr. Yue’s
application to intervene is timely.
SRJN207 (emphasis added).
Defendants characterize Yue’s effort to join Netbula-Sun as “untimely
motion to intervene.” DAB 48. The Netbula-Sun court made no findings
on the timeliness of Yue’s motion; it simply granted Sun’s motion to
vacate Yue’s motion in an ex parte proceeding.
The Netbula-Sun court set discovery cut-off for the “license/contract”
issues of August 31, 2007. But, the parties agreed to extend the
discovery period. Sun took the deposition of Yue on September 12,
2007. Netbula deposed Sun’s first witness Michael Melnick on September
19, 2007. One month later, on October 23, 2007[5], Netbula deposed
Sun’s “30(b)(6)” witness -- Mr. Michael Abramovitz. See SRJN071 for
the dates of the depositions.
The timing of Netbula-Sun discovery explains why Yue filed the motion
to intervene and for injunctive relief in October 2007. At the
December 6, 2006 TRO hearing, Magistrate Judge Bernard Zimmerman
stated that plaintiff could come back for a preliminary injunction at
“any time” after it had more evidence. SRJN285. Since Sun and
StorageTek did not produce any witness for deposition until September
19, 2007, Yue’s October 22, 2007 motion to intervene and for
injunctive relief was made without delay.
Yue recognized that it was far more efficient for him to join Netbula-
Sun than to file a separate lawsuit. On October 25, 2007, he wrote to
Sun’s defense counsel to seek a stipulation that would allow him to
join Netbula-Sun. ER.54:13-17. Yue also informed the Netbula-Sun court
that he needed to assert additional claims. Yue delayed his lawsuit to
make additional effort to work out a reasonable stipulation with Sun.
Sun refused to stipulate to Yue’s participation in Netbula-Sun. ER.
55-56.
8.The Yue-Sun Complaint was Based on Yue’s October 22, 2007 Motion to
Intervene
After the Netbula-Sun court vacated the hearing of Yue’s motion to
intervene-join and after Sun refused to stipulate to Yue’s
participation in Netbula-Sun, Yue filed the instant Yue-Sun case.
The Yue-Sun complaint was directly based on Yue’s October 22, 2007
motion to intervene and for injunctive relief. One can compare the
October 22, 2007 motion (SRJN191-216) and the FAC of Yue-Sun and see
that they are very similar. For instance, in the October 22, 2007
motion, Yue stated that “StorageTek had no licenses after it was
acquired by SUN in August 2005” and any distribution after the
acquisition “is infringement.” SRJN212. This claim based on the
termination of the agreement was not in the Netbula-Sun complaint; it
was first introduced in Yue’s October 22, 2007 motion.
FRCP 24(c) requires that a motion to intervene “be accompanied by a
pleading that sets out the claim or defense.” The motion for
injunctive relief also requires a showing of likelihood of success on
the merits of the copyright claims. The Yue-Sun complaint was a
continuation of the October 22, 2007 motion.
9.The Netbula-Sun Court Specifically Excluded Yue and the 00-SDK, 2K4
and YUE PWRPC Copyrights from Netbula-Sun
In the October 31, 2007 ex parte hearing[6], the Netbula-Sun court
vacated Yue’s FRCP 24(a) motion to intervene and join Netbula-Sun,
upon Sun’s motion for administrative relief. So, the FRCP 24(a) route
for Yue to join Netbula-Sun had been closed.
On November 20, 2007, the Netbula-Sun court heard Netbula’s motion to
substitute Yue as the copyright plaintiff as to the 1996 Copyright.
Netbula’s former counsel, Ms. Brillet, was to argue this motion. The
judge started out like this (quoting from transcript, see SRJN008):
THE COURT: OKAY. SO WE HAVE TWO MATTERS ON THIS MORNING. ONE IS THE …
REQUEST TO SUBSTITUTE MR. YUE AS A PARTY IN THIS MATTER, DR. YUE,
RATHER.
The judge then asked Dr. Yue: “Are you Mr. Yue?” After confirming that
Dr. Yue was Mr. Yue, the judge told Yue to “listen and hear me
clearly” and then stated that Yue “should cease and desist” from
filing papers. And even if the district court would grant Netbula’s
motion to replace Yue as the copyright plaintiff, “it still would not
give [Yue] authority to do so…” ER.40; SRJN009.
The subsequent exchange was the following:
MR. YUE: WHAT'S THE COURT'S LEGAL RATIONALE FOR THAT?
THE COURT: THAT IS THE RATIONALE, AND THAT'S THE STATEMENT.
MR. YUE: FOLLOWING RULES OF CIVIL PROCEDURE --
THE COURT: MR. YUE, I AM GOING TO HAVE YOU TAKEN OUT IF YOU DON'T BE
QUIET.
Id.The Netbula-Sun court was unambiguous: it would not allow Yue to
file pleadings, one way or the other.
The Netbula-Sun court understood that there was a question about
copyright ownership, and that Yue wanted to join Netbula-Sun to amend
the complaint based on Yue PWRPC copyrights.
THE COURT: I KNOW SOMETHING TRANSPIRED IN THE COURSE OF A DEPOSITION
AND THERE WAS SOME QUESTION ABOUT OWNERSHIP. I CAN READ THIS RECORD,
AND IT SAYS FAIRLY CLEARLY THAT NETBULA WAS CREATED IN JULY OF 1996...
THE COURT: BUT WHAT I UNDERSTAND IS THE SOFTWARE AT ISSUE MIGHT BE
ITERATIONS DOWNSTREAM OF THE PWRPC AND THE ONC RPC DEVELOPED IN THE
'94/'95 TIMEFRAME.
THE COURT: DOWNSTREAM HE [Yue] WANTS TO FILE A MOTION TO AMEND.
2007/11/20, Tr. pages 5 and 7; SRJN010, SRJN012 (emphasis added).
At that point of the hearing, Defense counsel presented the 1996
Copyright certificate to the Netbula-Sun court:
MR. PULGRAM: WOULD IT BE HELPFUL TO LOOK AT THE COPYRIGHT
REGISTRATION?
THE COURT: OF COURSE.
MR. PULGRAM: YOUR HONOR, THERE IS ONE COPYRIGHT THAT'S SUBJECT TO THIS
CLAIM. IT IS IN THE NAME OF THE AUTHOR --
THE COURT: THAT'S SUBJECT TO?
MR. PULGRAM: EXCUSE ME?
THE COURT: SUBJECT TO?
MR. PULGRAM: THAT IS SUBJECT TO A CLAIM HERE. AS YOU KNOW, ANY
COPYRIGHT REQUIRES ACTION, REQUIRE IT BE BROUGHT ON A REGISTERED
COPYRIGHT. THERE'S ONE REGISTRATION. THIS IS IT... MR. YUE IS NOT
LISTED ON THIS COPYRIGHT ANYWHERE. THE CLAIMANT ON THE COPYRIGHT IS
NETBULA, LLC. THE COPYRIGHT HAS BEEN PURSUED BY NETBULA, LLC IN THIS
ACTION FOR 10 MONTHS.
THE COURT: LET ME JUST STOP YOU.
MR. PULGRAM: YES, YOUR HONOR.
THE COURT: IS THIS THE ONLY COPYRIGHT AT ISSUE --
MR. PULGRAM: YES.
Tr. pp.8:10-9:6; SRJN013-14. By specifically constraining the Netbula-
Sun action to the 1996 Copyright, the Netbula-Sun court and Sun
excluded the other copyrights and Yue’s participation. The Netbula-Sun
court’s effort to exclude Yue was also evident from the following
exchange in that hearing:
THE COURT: BUT YOU DON'T ARGUE THAT THE ASSIGNMENT IS NOT VALID,
RIGHT?
MR. PULGRAM: EXCUSE ME?
THE COURT: YOU DON'T ARGUE THE ASSIGNMENT IS NOT VALID?
MR. PULGRAM: THERE IS SOME LAW TO THAT EFFECT, YOUR HONOR.
THE COURT: BUT IT'S NOT BEFORE ME. I HAVEN'T SEEN THAT IN YOUR PAPERS.
MR. PULGRAM: I BELIEVE THERE'S A PARAGRAPH, THE LAST PARAGRAPH OF OUR
ARGUMENT. BUT I DON'T THINK YOU HAVE TO REACH THAT.
THE COURT: THAT'S WHAT I AM SUGGESTING TO YOU. SO TO DENY THE MOTION
MEANS THAT HE'S NOT SUBSTITUTED IN AS A PARTY?
Tr. p.15:5-19; ER.58; SRJN020. Based on the above, Yue alleged that
the Netbula-Sun court coached defense counsel Pulgram.
Defendants disagree. In their answer brief, they say the following:
There is similarly no merit to Yue's assertion... What the district
court "suggested" was that, in ruling on the motion to substitute, it
need not reach the question whether the assignment was valid. SRJN
20,11/20/07 Transcript at 15:5-17..
DAB 47, fn.9 (emphasis original). Essentially, Defendants think that
the word “THAT” in “THAT’S WHAT I AM SUGGESTING TO YOU” was referring
to Pulgram’s “BUT I DON'T THINK YOU HAVE TO REACH THAT.”
Defendants now claim that “Netbula had the right to continue pursuing
the [Netbula-Sun] case even after the alleged assignment, and could
have timely sought leave to amend to identify its other alleged
copyrights.” DAB 45. But, Netbula could only continue its action on
the copyright originally pled in the complaint – the 1996 Copyright.
After the assignment, Yue became the sole owner of the 00-SDK and 2K4
Copyrights. Under Silvers v. Sony Pictures Entertainment, Inc., 402 F.
3d 881, 886 (9th Cir. 2005), only Yue had the standing to bring suit
on these two copyrights.
10.The Yue-Sun Case Had Different Nucleus of Facts
Defendants allege that “Yue fixates on a comment by Judge Jenkins that
the [Netbula-Sun] case was not ‘completely overlapping’ with [Yue-
Sun]” in his nonparty preclusion analysis. DAB 28. This is untrue. Yue
only mentioned the “not overlapping” statement when discussing the
retroactive disqualification of the judge. See page 42 of Yue’s
opening brief.
Instead, Issues 1-4 of Yue’s appeal ask a very simple question:
whether non-party Yue had had his day in court to vindicate his
copyright claims on the merits. The answer to that question is
undeniably no.
Defendants claim that “Yue has alleged infringement of different
registrations allegedly protecting the same software.” DAB 30. This
statement confuses the issues. Yue alleged that defendants infringed
his YUE PWRPC, 00-SDK and 2K4 copyrights. A specific copyright
protects the specific work[s] of authorship fixed in a tangible medium
of expression. These three copyrights are distinct intellectual
property rights, each protecting specific and distinct software code
-- statements of instructions written in computer programming
languages. Therefore, Yue-Sun involves intellectual property rights
that are disjoint from what is at issue in Netbula-Sun.
Defendants claim that the facts concerning defendant Abramovitz “were
all identified as a basis for the infringement claims in [Netbula-
Sun].” However, “Abramovitz” did not appear in the Netbula-Sun
complaint and Yue only learnt about Abramovitz’s activities in October
2007. Similarly, Yue only came to know about Lisa K. Rady around
October 2007 and learnt that she participated in the unlimited
licensing of PowerRPC to third parties even after she wrote in her
email that “we have exceeded the 1,000 distributions that we had right
to”… Yue wanted to join Netbula-Sun and pursue these claims, but he
was rejected.
The district court’s half-page analysis of the transactional nucleus
of facts focused on the “transactions” in which StorageTek bought the
licenses, and led to the following conclusion:
It is clear, therefore, that the two actions arise out of the same
transactional nucleus of facts - Defendants’ license agreements with
Netbula and Defendants’ use of Netbula’s PowerRPC software.
ER.46:3-12. Defendants are now essentially repeating the same. But the
most relevant facts are the ones that give rise to a claim of
infringement, not the purchase transaction that provided defendant a
copy.
The district court noted that “much of the Yue-Sun Complaint is a
verbatim restatement of Mr. Yue’s declaration presented to the Court
in opposition to the Netbula-Sun defendants’ motion for summary
judgment.” ER.46:8-10. Notwithstanding the fact that the Yue-Sun
complaint was based on the October 22, 2007 motion, one simply cannot
state a claim in a declaration that only states facts. The Netbula-Sun
court’s legal standard was clear: “a plaintiff may not amend its
complaint through argument in a brief opposing summary judgment, the
Court will not address Plaintiff's new claim.” Netbula, Llc v.
Bindview Development Corporation, 516 F. Supp.2d 1137 (N.D.Cal.
9-10-2007)(Jenkins, J.). Therefore, even assuming that a plaintiff can
add new claims in an opposition to a summary judgment, Judge Jenkins
would not allow it, and he certainly did not.
In the January 18, 2008 summary judgment order in Netbula-Sun, Judge
Jenkins decided the following three issues on the merits:
(1)The User Count for the SDK license
The SDK agreement stated one user “for each of the licenses purchased”
may “use the PowerRPC SDK Product under Windows NT and 95/98
platforms; each user can only use the software on one computer….”On
this issue, Judge Jenkins wrote:
both the 2000 and 2004 Agreements state that one user may use each of
the licenses purchased. This provision does not limit how the software
may be used… the limitation on the number of users … does not limit or
condition the use of the license. Therefore, because this provision is
not a limitation on the scope of the license, Plaintiff is not
entitled to a copyright infringement claim on this issue.
The Netbula-Sun court didn’t cite any authority which held that a “one
user on one computer’ restriction “does not limit or condition the use
of the license.” Even so, its holding was a narrow one.
The Yue-Sun action, filed two months before that order, alleged
different infringing activities with respect to the SDK, such as
exceeding both the number of users and the number of computers. Counts
I, II, III, V and VII of the FAC.
(2)The Excess Distribution of PowerRPC
The 2000 agreement stated that StorageTek “shall pay Netbula …for the
right to distribute up to 1000 units of software containing the
Supporting Programs." The Netbula-Sun court admitted that the
agreement was a “prepayment” agreement. The licenses were countable.
Mr. Melnick wrote in an internal email: “We have only made 2 purchases
for the rights to distribute a total of 2000 licenses.”
On exceeding the number of licenses, the Netbula-Sun court again
concluded that the “prepayment” term is merely a contract covenant.
Yue-Sun involved claims that are different, such as distributing
infringing derivative works, issuing floating licenses, fail to comply
with the limited distribution clause, inducing infringement by others…
See Counts IV, V, VIII and IX of the FAC.
(3) The Termination of the Netbula-StorageTek Agreement
The Netbula-StorageTek agreement was allegedly terminated upon Sun’s
acquisition of StorageTek. The Netbula-Sun court held that “this
[termination] provision does not limit the scope of the license.”The
Yue-Sun action filed in 2007 alleged that whatever license ceased to
exist because it was terminated. This case was about the existence of
the license, not the scope. See Count X of the FAC.
In summary, the January 18, 2008 Netbula-Sun order only resolved three
narrow issues. The Yue-Sun case filed in 2007 had 10 counts of
infringement against seven defendants that were different from the
claims in Netbula-Sun.
11.The Catch-22 Scheme is Impermissible
Defendants also say “[a]ny alleged infringement of the ‘additional
copyrights’ could have and should have been brought, if at all, in the
[Netbula-Sun] litigation.” DAB 35. See also, DAB 27-28, 35, 47 and 59.
Because Defendants made the judicial admission that Netbula and Yue
had conflicting claims on the copyrights, “[t]he onus therefore rested
with [defendant] to join the [plaintiff] to the [first] litigation.
The [plaintiff] themselves were under no obligation to intervene...”
Kourtis v. Cameron, 419 F.3d 989, 999 (9th Cir.2005).
But, Yue did make every effort to join Netbula-Sun. In addition to his
October 22, 2007 motion to intervene and join Netbula-Sun, Yue also
wrote to Sun’s defense counsel on October 26, 2007:
I am about to assert additional claims against StorageTek… For
judicial economy, I think it’s far efficient for you to stipulate to
the substitution of party by replacing Dongxiao Yue as the copyright
plaintiff in the C06-07391-MJJ case.
ER.54:14-19; SRJN128-129 (emphasis added). Sun’s response was outright
refusal. Sun’s counsel also authored the following court order:
Defendants’ Motion for Administrative Relief to Vacate Hearing on Non-
Party Dongxiao Yue’s Request for Injunctive Relief and Impoundment
[Docket Nos. 80-81] is hereby GRANTED.
SRJN132 (Doc. No. 94, Netbula-Sun) (emphasis added).
On November 19, 2007, as he had previously informed Sun and the
Netbula-Sun court, Yue filed the Yue-Sun action. At the hearing next
day, the Netbula-Sun court considered allowing Yue to join that case
as co-plainitff[7], the following was the exchange:
THE COURT: [ALLOWING YUE] COMING IN AS A PARTY BUT RETAINING NETBULA
AND THE REQUIREMENT THAT NETBULA BE REPRESENTED BY COUNSEL, HOW DOES
THAT UPSET THE HEARING OF THOSE MOTIONS?
MR. PULGRAM: WELL, YOUR HONOR, IT'S NOT CLEAR TO ME WHAT… WOULD BE THE
BENEFIT OF ALLOWING HIM TO APPEAR ON THOSE MOTIONS.
Tr. p.14:6-12; SRJN019. Again, Sun succeeded in excluding Yue from
Netbula-Sun.
So, Defense counsel is playing this game: when Yue requests to join
Netbula-Sun, they say no; when Yue files a separate lawsuit, they say
Yue should have joined Netbula-Sun. This scheme is similar to a
classic trap called Catch-22.
There was only one catch and that was Catch-22 ... Orr would be crazy
to fly more missions and sane if he didn't, but if he was sane he had
to fly them. If he flew them he was crazy and didn't have to; but if
he didn't want to he was sane and had to. Yossarian was moved very
deeply by the absolute simplicity of this clause of Catch-22 and let
out a respectful whistle.
"That's some catch, that Catch-22," he observed.
"It's the best there is," Doc Daneeka agreed.
Rhodes v. Robinson, 380 F.3d 1123, 1129 (9th Cir. 2004)(quoting Joseph
Heller, Catch-22, at 47 (6th ed. 1976)). No matter what he does, Yue
can not have his day in court to litigate his copyright claims on the
merits. Such scheme is impermissible, and must fail as a matter of
law.
12.Yue was Even Prohibited to Speak about His Pro Se Yue-Sun Case
Defendants filed a motion to relate Yue-Sun to Netbula-Sun, which
would cause Yue-Sun to be assigned to Martin J. Jenkins. Under Local
Rule 3-12 (b) of the Northern District of California, the parties in
Yue-Sun must file “related cases” motion papers in the Netbula-Sun
case. Because the Netbula-Sun court had prohibited Yue from filing
papers, Yue could not file any response[8]. Instead, Yue wrote letters
to the court to seek clarification. Yue stated that if permitted he
would file a response[9]. But the Netbula-Sun courtdid not grant Yue
the permission to respond.
On December 14, 2007, Netbula-Sun court held a hearing on Sun’s motion
for summary judgment. At the end of the hearing, Jedediah Wakefield, a
defense attorney of the Netbula-Sun case, said to Judge Jenkins: “We
propose some scheduling –-”. ER.26:2-3. When Yue, the pro se Plaintiff
in Yue-Sun, tried to seek clarification, Jenkins forbade Yue to speak.
Jenkins then stated that Defendants could delay answering the Yue-Sun
complaint.
On February 8, 2008, Jenkins stated the following in an order:
During the November 20, 2007 hearing, the Court instructed Yue that he
could not file motions, notice hearing dates, or speak in court unless
he had leave of court or until he was given permission to represent
himself. During the December 14, 2007 hearing, the Court again
admonished Yue for attempting to speak without leave of Court.
ER.62:11-14; SRJN004 (emphasis added).
13.Virtual Representation Theory Had Been Disapproved
The district court reasoned that because “four of the five provided
declarations in support of summary judgment in the Netbula-Sun case,”
all five defendants were “virtually represented” in Netbula-Sun. As
for plaintiff Yue, the district court stated that “Yue is the founder
and president of Netbula, LLC and thus may be seen as virtually
represented in the Netbula-Sun action.” ER.47-48 (emphasis added).The
district court’s “analysis” was conclusory as it failed to apply the
five-factor test.
The district court’s dismissal of the Yue-Sun action was based on the
so called “virtual representation” doctrine stated in Adams v. Cal.
Dep’t of Health Servs., 487 F.3d 684 (9th Cir. 2007). Adams is
inapplicable to this case, because this case deals with non-party
preclusion. Even if Adams applies, the “virtual representation” theory
relied by Adams has been disapproved in Taylor v. Sturgell, 128 S. Ct.
2161 (June 12, 2008)[10].
In Taylor v. Sturgell, Greg Herrick asked his friend and “close
associate” Brent Taylor to help restore a vintage airplane. Herrick
filed an FOIA lawsuit to obtain technical documents for the airplane.
Herrick and Taylor shared documents obtained in the discovery of
Herrick’s suit. After Herrick lost the lawsuit, Taylor hired Herrick’s
lawyer and filed a second FOIA lawsuit seeking exactly the same
documents. Applying a five-factor test for “virtual representation”,
the D.C. Circuit affirmed a dismissal by claim preclusion. The Supreme
Court disapproved “virtual representation” and vacated the judgment of
the D.C. Circuit.
Defendants now claim that Yue had assumed control of the Netbula-Sun
litigation and Yue wholly owned 100% of Netbula. There is nothing in
the record to support their assertions. Moreover, Netbula cannot, as a
matter of law, sue on Yue’s copyrights.
14.The Privity Argument was Circular Logic
In Kourtis v. Cameron, the Court explained the concept of “privity”:
Privity "is a legal conclusion designating a person so identified in
interest with a party to former litigation that he represents
precisely the same right in respect to the subject matter involved."
Kourtis v. Cameron, 419 F.3d at 996 (emphasis added). Under federal
law, “concepts summarized by the term privity are looked to as a means
of determining whether the interests of the party against whom claim
preclusion is asserted were represented in prior litigation.” Chase
Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 346 (2nd Cir.
1995).
Since privity is just a word to express a legal conclusion of
preclusion, using privity as basis of preclusion is prone to circular
logic, which is a false form of reasoning of putting the conclusion
into the premises. Thus, if in any part of the preclusion analysis,
the word privity is used in the argument, the result is a logical
fallacy of circular argument. Indeed, courts have noted that “privity
has shown itself to be an elusive and manipulable concept” and should
be only used as “a convenient means of expressing conclusions that are
supported by independent analysis.” Meza v. General Battery Corp., 908
F.2d 1262 (5th Cir. 1990). “Privity may exist for the purpose of
determining one legal question but not another depending on the
circumstances and legal doctrines at issue.” Chase Manhattan Bank,
N.A. v. Celotex Corp., 56 F.3d 343, 346 (2nd Cir. 1995)(finding the
transferee of a building not in privity with the prior owner in
successive lawsuits on the same damages to the building). “[D]ue
process considerations make adequacy of representation a prerequisite
to privity.” Kourtis, 419 F.3d at 996 (emphasis added).
The district court’s privity analysis, in its entirety, was the
following:
In addition, Netbula assigned all of its copyrights prior to January
1, 2007 to Yue. Therefore, Yue is an assignee and is in privity with
Netbula. Yue and Netbula are, therefore, in privity.
ER.48:18-22 (internal citations omitted).
First, the district court ignored the pre-Netbula YUE PWRPC copyright
that Yue always owned; there was no assignment with respect to that
copyright. Second, the 00-SDK and 2K4 Copyrights were not represented
in Netbula-Sun. The Netbula-Sun court excluded the YUE PWRPC, 00-SDK
and 2K4 copyrights from Netbula-Sun. There was no privity between
Netbula and Yue with respect to the claims associated with these
copyrights.
Also, like the Chase Manhattan Bank case, the Yue-Sun and Netbula-Sun
cases were before the same judge. Instead of consolidating the cases
as Yue had proposed back in October 2007[11], the district court
dismissed Yue-Sunwith prejudice. “Given that the two cases were in the
same court and assigned to the same judge, the use of res judicata was
something of an ambush.” Id. at 347. There had been no final judgment
in Netbula-Sun, yet the district court precluded Yue and dismissed the
case with prejudice.
15.Judge Jenkins Had No Jurisdiction to Grant Wakefield’s Oral Motion
for Enlargement of Time in Yue-Sun
Yue’s December 17, 2007 letter to Judge Jenkins (copied to Judge
Illston) clearly stated that the Yue-Sun case was then presided by
Judge Illston, indicating that Judge Jenkins lacked jurisdiction to
grant the extension. The letter also noted the lack of due process[12]
in the proceedings. ER.23-24. Thus, the letter put Defendants on
notice that there was no lawful court order granting them extension in
answering the complaint. The Executive Committee of the Northern
District of California (acting as the Assignment Committee) did not
reassign the case to Jenkins until January 10, 2008. The denial of
entry of default was based on the false assumption that the there was
a valid court order granting Defendants enlargement of time. Since
“the clerk must enter the party's default,” FRCP 55(a), the judge had
no discretion to deny the request for entry of default, and the order
denying entry of default judgment was also null and invalid.
Defendants, represented by a large law firm, have conducted all sorts
of tactical maneuvers in order to avoid liability under the copyright
law, but the facts against them are undeniable. Congress has set
rigorous time limits for answering a complaint, default judgment
against Sun is proper.
16.Defense Counsel’s Misconduct Had Been a Major Issue Throughout the
Litigations Below
Since October 2007, Yue had complained about Defense counsel’s
unprofessional conduct. See, ER.55:3-5 (“I … asked the Court to
disqualify Pulgram for his unprofessional conduct.”). See also, ER.
60:19.
Defendants now claim that Yue failed to preserve the issue for appeal.
DAB 55-56. However, Yue did put Defendants on notice about Defense
counsel’s unethical conduct. The fact that Defendants used those
communications in their motion to dismiss is plainly on the record.
Whether Defendants prejudicially utilized those direct communications
against Yue is thus a pure question of law and is not waived.
Pulgram communicated with Yue on Netbula matters. For instance, in an
October 31, 2007 email to Yue, Pulgram stated that “Netbula is
represented by counsel.” Then he proceeded to discuss Netbula’s prior
settlement negotiations with Sun. See, SRJN117.
Defendants cited Yue’s emails to Pulgram to support their key argument
in their motion to dismiss. ER.33, 35-37. But for Pulgram’s prior
communications[13] to Yue on Netbula matters, Defendants would not
have had the opportunity to use these communications to Yue’s
detriment.
Yue planned to make the attorney misconduct argument at the motion to
dismiss hearing scheduled for March 4, 2008. However, the district
court vacated the hearing on March 3, 2008, and dismissed the case
with prejudice on March 4, 2008.
17.Jenkins was Disqualified
Yue filed judicial misconduct complaints against Jenkins at the Ninth
Circuit. Jenkins received the first complaint in December 2007. Yue’s
December 17, 2007 letter to the judge re-stated the basis of the
complaint: Jenkins might have retaliated against Yue due a blog
article Yue wrote.
The facts alleged in Yue’s allegation were fully capable of proof by
discovery. In the complaint Yue filed against Jenkins, Yue gave the
names of the magistrate judge and the attorneys who heard the story of
Jenkins’s retaliatory intent. Jenkins’s denial in his ruling was not
evidence. In evaluating the allegation of bias, "the judge must assume
that the factual averments . . . are true, even if he knows them to be
false." United States v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir.
1985).
Jenkins would not even allow Yue to speak about his pro se case. “[N]o
procedure firmly rooted in the practices of our people can be so
‘fundamentally unfair’ as to deny due process of law.” Pacific Mutual
Life Insurance Co. v. Haslip, 499 U.S. 1 (1991)(concurring opinion by
Justice Scalia). The bias was total.
When Yue tried to make an argument against the “cease and desist”
order, Jenkins’s reaction was: “Mr. Yue, I am going to have you taken
out if you don’t be quiet.” This is not a situation where judicial
temperament occasionally turns into judicial temper. “Arrogance and
bullying by individual judges expose the judicial branch to the
citizens' justifiable contempt.” McBryde v. COMM. TO REV. CIR. COUNCIL
CONDUCT, 264 F.3d 52, 66 (D.C. Cir. 2001). When a federal judge
threatens force instead of resorting to reasoning in a civil
litigation involving due process concerns, he fails to maintain the
appearance of justice and his judgment is inherently flawed.
Sun is a large corporation. In the district court, it spares no effort
emphasizing that Yue is just one-man. That may have been a factor in
the decision below. However, comparing to the interest of United
States and its rule of law, Sun and its CEO are negligible and utterly
insignificant. The Court must reverse the district court’s erroneous
ruling poisoned by apparent personal animus to restore justice and
fundamental fairness in federal district court.
IV. CONCLUSION
For the reasons stated in Plaintiff-Appellant’s opening brief and this
reply brief, Yue never had his day in court to vindicate his
copyrights on the merits. Plaintiff-Appellant asks the Court to vacate
the district court’s March 4, 2008 order of dismissal with prejudice,
enter default judgment against Sun and StorageTek on the issue of
liability and remand the case for further proceedings.
Respectfully submitted,
DATED: October 3, 2008
______/S/_______
DONGXIAO YUE
Plaintiff-Appellant
CERTIFICATE OF COMPLIANCEPURSUANT TO CIRCUIT RULE 32-1 FOR CASE No.
08-15927
I certify that the appeal brief is proportionately spaced, has a
typeface of 14 points, and contains no more than 7,000 words
(including footnotes).
Dated: October 3, 2008
___________/S/__________
Dongxiao Yue
CERTIFICATE OF SERVICE
I certify that I served the Appellant’s brief, the Excerpt of Records
and Request for Judicial Notice on the following persons on October 3,
2008:
The Defendants – Appellees (STORAGE TECHNOLOGY CORPORATION; SUN
MICROSYSTEMS INC.; MICHAEL MELNICK; JULIE DECECCO; MICHAEL P.
ABRAMOVITZ; LISA K. RADY; JONATHAN SCHWARTZ), by emailing a true copy
to their attorneys of record, Mr. Laurence Pulgram, Mr. Jedediah
Wakefield and Mr. Liwen Mah in accordance to an agreement on service
by email, and by mailing a hard copy via U.S. mail to their address at
555 California Street, San Francisco, CA.
Defense counsel will also receive notification of the filing from the
ECF system.
_________/S/____________
Dongxiao Yue
[1]Registered November 27, 2007
[2]The attorneys were planning for a jury trial in the Netbula v.
BindView case scheduled for October 2007.
[3]“[I]n early September 2007, Netbula submitted a Form CA to the
Copyright Office, stating that the 1996 Copyright was a derivative
work of unpublished work written by [Yue] before July 1996.” ER.
52:13-15.
[4]The FAC alleges that Defendants had no licenses for those
unauthorized copies. See Counts I-X of the FAC.
[5] Mr. Abramovitz answered “I don’t know” to basic questions in his
deposition.
QWhat kind of -- well, was there any kind of control in terms of the
inside copying?Was there some kind of a list that was maintained at
StorageTek of who actually made a copy of the program for their
computer?
AI don't know.
QWho would know that?
AI don't know.
…
QDid ISVs have the right to further distribute the LibAttach programs
to their customers?
AI don't know.
…
QOkay.Who were the StorageTek people responsible for monitoring and
accounting for LibAttach licenses?
AI don't know.
See, SRJN097-99 (Netbula’s opposition to summary judgment motion).
[6] Defendants claim that “the hearing was not ‘ex parte,’ as
Netbula's counsel did participate, and raised no objection when the
hearing was vacated.” DAB 47. But, Yue did not hire Netbula’s counsel
to represent him on his copyright claims.
[7]Yue never attempted to represent Netbula on the state law claims in
Netbula-Sun, and the Netbula-Sun court “recognized that.” SRJN021.
[8]Defendants state that “Netbula did not oppose or otherwise respond
to that [related cases] motion.” DAB 17. But, under the Local Rule of
court below, it was Yue – a party in the newercase who should oppose
or respond to that motion. See Pulgram’s email to Yue on this issue.
ER.59:17-23.
[9] Plaintiff-Appellant never stated that he would file an opposition
to the motion to relate the cases.
[10]The Supreme Court noted that “[t]he Ninth Circuit applies a five-
factor test similar to the D. C. Circuit's.” Taylor v. Sturgell, 128
S. Ct. 2161, fn.3.
[11]See, ER.54:15-17 (quoting Yue’s October 26, 2007 email to Pulgram
suggesting relate/consolidate prospective new action). See also,
SRJN119.
[12] Defendants point out that the grant of extension was done in open
court. DAB 55. That only means Jenkins denied Yue’s due process rights
in open court.
[13]See, SRJN104, Pulgram’s initiating email to Yue on substantive
issues. See also, SRJN108-130, for over twenty pages of emails between
Pulgram and Yue.
copyright
We request you vote “No!” to the appointment of Edward M. Chen ( ) to
the federal bench. The opposition to Chen is neither political nor
racial, but due to Chen’s severe character defects unbecoming for a
judge.
Case 1: Chang v. U.C. Berkeley (3:07-cv-04005-EMC)
A Chinese woman and her disabled son sued U.C. Berkeley and several of
its officials in 2007 for Civil Rights violations. Chen had close
ongoing association with U.C. Berkeley in 2007-2008, both monetary and
non-monetary.
Though Ms. Chang did not know Chen’s affiliation with U.C. Berkeley
Defendants, she raised the same type of bias before Chen about a State
Court judge. Chen ruled that the State Court judge “did not conceal
from [Plaintiffs] her husband’s affiliation [with U.C. Berkeley].”
Chen knew the ethical standard. Yet he concealed his own affiliation
with Defendants.
It a typical Catch-22 scheme, Chen forbade Plaintiffs to conduct
discovery, then quickly dismissed their case for lack of evidence.
Chen ridiculed Plaintiffs’ claims as “patently fanciful and
insubstantial”, as well as “fantastic or delusional.”
In his answer to the Senate Questionnaire, Chen falsely stated that
there was no extra-judicial basis for him to recuse from the Chang
case.
Case 2: Netbula v. Symantec Corp. (C06-0711-MJJ)
In this copyright case, big corporate Defendants falsely accused that
Plaintiff “did not bring any documents requested” to a meeting.
Plaintiff sought sanctions against such false statement. Defendants
later admitted they were wrong. After noticing Plaintiff a small
company, Chen twisted the facts, saying Plaintiff did not bring “all
documents” to the meeting and fined Plaintiff $20,000.00. Chen may
have also conspired with the presiding judge Martin J. Jenkins to
“fix” the outcome of the case by the infamous Jenkins-Laporte
Doctrine, which disgraced U.S copyright law. Chen touted his ex parte
discussions about cases with other judges in the dining rooms…
Our members filed two judicial misconduct complaints against Chen for
bias, prejudice, fabrication of evidence and fraud. We submitted the
evidence to the Senate and requested to testify against Chen.
Please Voting “No!” to Chen, for the sake of the rule of law.
Dated: October 23, 2009
American Justice Group
http://www.American-Justice.org
Another day, another Obama nominee who doesn't appear to love America.
Another nominee who thinks the United States is inherently racist.
Another nominee who thinks that judges should let their "ethnic and
racial background" have an effect on how they conduct their trials.
President Obama's radicalization of American government needs to be
stopped.
In this case, the nominee is Northern California federal district
court nominee Edward Chen, forwarded by the Senate Judiciary Committee
to the full Senate last Friday on a party-line vote. Mr. Chen is
currently a federal magistrate in San Francisco, and a lawyer long
active with the American Civil Liberties Union before that.
Judge Chen's words speak for themselves. When the congregation sang
"America the Beautiful" at a funeral, Judge Chen told the audience of
his "feelings of ambivalence and cynicism when confronted with appeals
to patriotism - sometimes I cannot help but feel that there are too
much [sic] injustice and too many inequalities that prevent far too
many Americans from enjoying the beauty extolled in that anthem."
In a speech on Sept. 22, 2001, he said that among his first responses
to the Sept. 11 terrorist attacks on America was a "sickening feeling
in my stomach about what might happen to race relations and religious
tolerance on our own soil. ... One has to wonder whether the seemingly
irresistible forces of racism, nativism and scapegoating which has
[sic] recurred so often in our history can be effectively restrained."
And talking about the role of judges, he in effect embraced the
"empathy standard" that Supreme Court Justice Sonia Sotomayor was
forced to denounce in her own confirmation hearings: "Simply put, a
judge's life experiences affect the willingness to credit testimony or
understand the human impact of legal rules upon which the judge must
decide. These determinations require a judge to draw upon something
that is not found in the case reports that line the walls of our
chambers. Rather judges draw upon the breadth and depth of their own
life experience.... Inevitably, one's ethnic and racial background
contributes to those life experiences."
You get the picture. To quote and paraphrase Sen. Charles E. Schumer
from another occasion, this man's attitude "doesn't even whisper
'judge.' " Instead, it yells out that he is a biased radical willing
to impose his own politics from the bench. Judge Chen should not be
confirmed.
