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Motion for Relief from Judgment Pursuant to Rule 60(b)

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Mar 19, 2009, 8:26:53 PM3/19/09

Motion for Relief from Judgment Pursuant to Rule 60(b)

(PDF) Motion for Relief from Judgment

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DONGXIAO YUE,

Plaintiff,

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 No. C07-05850-MJJ

PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO FRCP 60(b)

[FRCP 60(b)(3),60(b)(6)]

Date: April 30, 2008

Time: TBD

Dept: TBD

Judge: TBD

Both Netbula and Yue fully informed Judge Jenkins about Yue’s
intention to file a separate action the Netbula v. SUN complaint in
court filings. See Document No. 91, p.4:10-18 (filed on October 30,
2007); Document No. 98, p.3:11-19 and Document No. 99, pp.4:23-5-18
(filed on November 5, 2007) of the Netbula v. SUN case. Yue also filed
with the Court the emails communications between Mr. Pulgram and Yue.
Id. at ? 22. 11

Yue Decl., at ?? 24-25. 12

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? 13

Also on November 20, 2007, Judge Jenkins and SUN made it clear that
the Netbula v. SUN case only deals with one copyright that was alleged
in the complaint (quoting transcript): 14

In November 2007, Yue mailed a complaint against Judge Jenkins to the
Ninth Circuit, alleging, inter alia, that Judge Jenkins retaliated
against Yue due to the blog article Yue wrote and persisted in his
retaliation. Yue’s complaint described in detail the events
surrounding the blog and how he came to know that there was
retaliation. Yue complained about Judge Jenkins’s failure to recuse
himself from the Netbula v. Symantec and Netbula v. SUN case. Yue also
complained about Judge Jenkins’s not-to-file order which Yue alleged
was a violation of his due process. Yue further complained that Judge
Jenkins issued an ex parte order in favor of defendants, threatened to
take Yue out for merely attempting to make a legal argument, coached
Mr. Laurence Pulgram to make argument against Yue and ignored Mr.
Laurence Pulgram’s unethical conduct. 14

Copies of Yue’s complaint against Judge Jenkins were sent to Judge
Jenkins on December 17, 2007. 15

In the exhibits to his complaint, Yue attached a letter to then Chief
Circuit Judge Schroeder. In that letter, Yue indicated that, the
person who was responsible for Netbula’s loss of uncollected license
revenue in the Netbula v. Symantec case should be held liable. Yue
Decl., at ?? 34-35. 15

?64. after Michael Abramovitz learned of the dispute between Netbula
and SUN/StorageTek, he and potentially other StorageTek employees,
presumably under direction of SUN’s managing agents, systematically
erased the Netbula SDK software from their computers, thus destroying
part of the evidence. 25

?85-86. multiple groups in StorageTek and SUN had copied and used the
NT SDK, without internal control of the copying…many StorageTek
employees, including Anton Vatcky and Scott Painter, made numerous
copies of the NT SDK onto many computers without licenses, in
violation of Plaintiff’s copyright in the NT SDK. 25

?88-90. StorageTek developed REELS, LibAttach and LibAttach
Integrators’ Kit products with unauthorized copies of the NT SDK…The
REELS, LibAttach and LibAttach Integrators’ Kit products developed
with unauthorized copies of NT SDK were thus infringing derivative
works of Plaintiff’s copyrighted software. 25

?93-95. The 2000 Agreement was restricted to the Windows NT/98/95
operating systems. StorageTek’s engineers and managers knew the 2000
Agreement was for Windows NT/98/95 only. In March 2004, Michael
Melnick wrote in an internal email stating that the 2000 Agreement was
specific to Windows NT and 95/98 platforms). In July 2005, Michael
Melnick acknowledged that the 2000 Agreement was for Windows NT/98/95
only. Lisa Rady and Michael Abramovitz also knew that the PowerRPC
software on the CD StorageTek received was for Windows Nt/98/95 only…
Defendants developed LibAttach and LibAttach Integrators’ Kit software
for Windows 2000 with the NT SDK, without a license for Windows 2000…
numerous third parties also used the LibAttach Integrators’ Kit to
create derivative works for unauthorized platforms. 26

?98-99. Defendants, and each of them, made, offered to sell, sold, and/
or distributed copies of the infringing derivative works of the NT
SDK, or contributed to these activities. 26

?109. multiple StorageTek or SUN employees, including Abramovitz, had
copied the 2003 SDK on multiple computers, without internal control of
inside copying, violating Plaintiff’s copyright in the 2003 SDK. 27

?111-114. StorageTek developed LibAttach and LibAttach Integrators’
Kit products with unauthorized copies of the 2003 SDK…The LibAttach
and LibAttach Integrators’ Kit products developed with unauthorized
copies of 2003 SDK were thus infringing derivative works of
Plaintiff’s copyrighted software. 27

?116-120. Defendants distributed more than 1000 copies of the 2004
Runtime, without the proper licenses and in violation of Plaintiff’s
“2K4 copyright.” Defendants further violated Plaintiff’s copyright by
willfully failing to monitor the copying of Plaintiff’s software and
willfully permitting others to make unauthorized copies…numerous third
parties also used the infringing LibAttach Integrators’ Kit which
contained the 2004 Runtime to create derivative works without
authorization. 27

Defendants knew that each copy of Plaintiff’s software required a
license. Defendants offered to sell unlimited licenses for LibAttach
software which contained Plaintiff’s copyrighted software, in
violation of Plaintiff’s copyright. Defendants sold unlimited licenses
for LibAttach software which contained Plaintiff’s copyrighted
software to multiple customers, in violation of Plaintiff’s copyright.
28

Both the 2000 Agreement and 2004 Agreement were not transferable.
Michael Melnick, representing StorageTek, stated that the agreements
were not transferable and “would be terminated” upon SUN’s acquisition
of StorageTek… Defendants continued to use, copy, distribute, offer to
sell and sell LibAttach and LibAttach Integrator’s Kit software (which
contained Plaintiff’s software) after StorageTek became a subsidiary
of SUN. 28

Cases

Davis v. Board of Sch. Comm'rs of Mobile County,
517 F.2d 1044, 1051 (5th Cir. 1975) 19

De Saracho v. Custom Food Machinery, Inc.,
206 F.3d 874, 880 (9th Cir. 2000) 15

Kourtis v. Cameron,
419 F.3d 989 (9th Cir. 2005) 18, 21

Liljeberg v. Health Services Acquisition Corp.,
486 U.S. 847, 100 L. Ed. 2d 855, 108 S. Ct. 2194 (1988) 18

NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that pro se Plaintiff, Dongxiao Yue (“Yue” or
“Plaintiff”), hereby moves for a Court Order to grant relief from the
Order granting Motion to Dismiss (the “Dismissal Order”) and the final
Judgment pursuant to Federal Rule of Civil Procedure 60(b). The
hearing of the motion is set to April 30, 2008 or any other time
ordered by the Court.

This motion is based upon this Notice, the following Points and
Authorities, the Declaration of Dongxiao Yue (“Yue Decl.”), the papers
on file in this matter, and such further evidence and argument as may
be presented to the Court at or before the hearing.

Concurrently, Plaintiff is filing a separate motion to disqualify
defense counsel Fenwick & West, LLP.

MEMORANDUM OF POINTS AND AUTHORITIES

SUMMARY

Yue is the owner and founder of software company Netbula, LLC
(“Netbula”). Yue filed the instant 10-count copyright action based on
alleged infringement of three copyrights he personally owned. The
Judge, Martin J. Jenkins, stated that this case “is not completely
overlapping with” the related Netbula v. SUN case. After Judge Jenkins
received Yue’s complaint against him, Judge Jenkins concluded that
Netbula and Yue are privies in the two cases, and the two cases are
duplicative. Without a hearing, Judge Jenkins dismissed the instant
with prejudice and entered final judgment on the same day.

Now, Plaintiff seeks relief from final judgment under FRCP 60(b),
because of defense counsel’s misconduct and other manifest injustice
permeated in the proceedings.

FACTUAL BACKGROUND

The Instant Case

Of the three copyrights allegedly infringed by defendants, one covers
the code Yue wrote as an individual before he founded Nebula, LLC
(“Netbula”). Yue has always owned this copyright. The two other
copyrights were assigned from Netbula to Yue on September 26, 2007.
There is a pending related case, Netbula v. SUN, et al. (Case No.
C06-07391-MJJ, the “Netbula v. SUN” case), but none of the three
copyrights in the instant action was part of the Netbula v. SUN case.

The instant action alleges 10-counts of copyright infringement, many
of them arise from transactions not mentioned in the Netbula v. SUN
case.

The Parties’ Conduct

The following facts are taken directly from the declaration of
Dongxiao Yue dated March 26, 2008, filed concurrently.

In January 2006, Netbula filed a copyright infringement action against
Symantec Corporation (“Symantec”) et al (Case No. C06-0711-MJJ, the
“Symantec case”), alleging the infringement of PowerRPC software
published in 1996 (the “1996 Copyright”). The Symantec defendants were
represented by Fenwick & West, LLP (“Fenwick”).

In December 2006, Netbula filed another copyright action against
Storage Technology Corporation (“StorageTek”), Sun Microsystems, Inc.
(“SUN”) et al. (Case No. C07-07391-MJJ, the “SUN case”) alleging
infringement of the 1996 Copyright. SUN is also represented by
Fenwick.

In 2002, Fenwick served as an Early Neutral Evaluator in a trademark
case in which Netbula sued a company for infringement of the PowerRPC
mark. In the ENE session, Yue provided information about PowerRPC to
Fenwick, in confidence. The details are in Yue’s Motion to Disqualify
Defense Counsel, filed concurrently.

In the course of the Symantec case, around July 2007, defense counsel
Laurence Pulgram pointed out that Yue personally owned the copyright
of the PowerRPC code Yue wrote before he founded Netbula. Yue Decl.,
at ? 5. As Mr. Pulgram wrote in one of the motions he filed in the
instant C07-05850 case:

As to Yue’s allegation that he began developing the software at issue
before he established Netbula in 1996, there is a common question of
whether Yue or Netbula holds the copyrights in the software, and what
parts are owned by each.

Docket No. 22 of the instant case, p.3:23-26.

Yue then contacted the U.S. Copyright Office regarding the situation
and spoke with a person of the Copyright Office. The Copyright Office
staff suggested various actions. Based on these suggestions, Netbula
submitted a Form CA to the Copyright Office, stating that the 1996
Copyright was a derivative work of unpublished work written by Yue.
Netbula also transferred the copyrights for the code created before
January 2007 back to Yue on September 26, 2007. Id. at ? 6.

In June 2007, Yue wrote a blog article which criticized an order of a
magistrate judge in that case. On August 28, 2007, immediately after
talking to a magistrate judge, Netbula’s former counsel told Yue the
stuff he wrote blew his case. She specifically told Yue what the
magistrate judge told her: Yue’s blog article had offended Judge
Jenkins. Netbula’s former counsel also told Yue that she got a hint
that an adverse ruling against Netbula had already been in place. Id.,
at ? 7.

On August 31, 2007, Judge Jenkins signed an order that dismissed
Netbula’s copyright, contract and fraud claims against Symantec
defendants in the Netbula v. Symantec case. In his order, Judge
Jenkins ignored key evidence, including a disclosure letter which
stated that defendants did not pay licenses fees and owed Netbula
license fees. Yue later filed a motion to intervene and unseal part of
this disclosure letter in the Symantec case.

Because of the transfer of the copyright interests, on October 1,
2007, Netbula field a motion to substitute Yue as the party as to the
copyright claim in the Netbula v. SUN case pursuant to FRCP 25(c). On
October 11, 2007, on the eve of scheduled dispositive motions,
Netbula’s former counsel, Vonnah M. Brillet (“Ms. Brillet”) filed a
motion to withdraw from the Netbula v. SUN case. Yue attempted to
secure new counsel for Netbula but was unable to do so. Id. at ??
9-10.

On October 22, 2007, pursuant to FRCP 24(a) and the Copyright Act,
acting pro se, Yue filed a motion to intervene and for copyright
injunction in the Netbula v. SUN (C06-07391) case, alleging
irreparable harm from defendants’ ongoing infringement of the 1996
Copyright and other copyrights Yue personally owned, based on newly
discovered evidence. In his argument for the 4-prong test for
intervention of right, Yue stated:

…As a result of the copyright assignment and related claims, Netbula
has filed a motion to substitute Dr. Yue as the plaintiff for the
copyright claim pursuant to FRCP 25(c).

However, because of the timing in the case, Dr. Yue’s property rights
are in danger of being lost. Defendants are planning to have their
summary judgment motions heard before November 27, 2007, but Netbula’s
motion to substitute Dr. Yue as the plaintiff as to the copyright
claim won’t be heard until November 20, 2007, which is the same day
when Netbula’s counsel’smotion to withdraw will be heard. Ms.
Brillet’s tight schedule makes it near impossible for her to give the
needed attention for the expected summary judgment hearing. This
situation leaves Dr. Yue’s interest with little representation.

Yue’s Motion to Intervene, Docket No. 68 of the C06-07391-MJJ case, pp.
16:24-17:3.

On October 23, 2007, SUN defendants filed a motion for summary
judgment. However, their motion was based on a fabricated or phantom
declaration – they had not been able to locate the declarant – Michael
Melnick -- to review his declaration. Id. at ?? 10-11.

During this time, Defense counsel Laurence Pulgram sent numerous
emails directly to Yue, discussing the substantive issues in the
Netbula v. SUN (C06-07391-MJJ) case. In an October 25, 2007 email to
Yue, Mr. Pulgram talked about Netbula’s former counsel’s motion to
withdraw from the C06-07391-MJJ case, Netbula’s motion to substitute
party, Netbula’s TRO and SUN’s motion for summary judgment. In his
emails to Yue, Mr. Pulgram specifically stated that SUN would oppose
Netbula’s motion to substitute party and that “Ms. Brillet remains
counsel of record, and her opposition to the summary judgment on
behalf of Netbula is due in the ordinary course.” In subsequent
emails, Mr. Pulgram talked about issues such as Michael Melnick’s
declaration and Netbula’s intended use of certain evidence, etc.
Netbula’s former counsel told Yue that defense counsel’s direct
communication to Yue on the Netbula v. SUN matter constituted willful
violation of attorney ethics. Id. at ?? 12-13, 31.

Since Mr. Pulgram was freely communicating to Yue on the Netbula
matter, on October 26, 2007, Yue sent the following email to Mr.
Pulgram:

Dear Mr. Pulgram, Mr. Wakefield, Mr. Mah and Mr. Sieber,

I am writing to seek a stipulation regarding Netbula's substitution of
party as to the copyright claim filed in the Nebula v. StorageTek
case. As the copyright owner of the relevant software and related
claims, I am about to assert additional claims against StorageTek.
This can be done via an amended complaint in the C06-07391-MJJ case,
or I can file a new separate infringement action and move to relate/
consolidate the new action to the current action.

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.

If you do not stipulate to the substitution, I will commence the new
action next week.

Mr. Pulgram responded to the above email as follows.

Mr. Yue,

I will confer with my client and respond to you next week.

Laurence Pulgram

Subsequently, Mr. Pulgram communicated with Yue on Yue’s then
prospective lawsuit against SUN. Mr. Pulgram advised Yue on matters of
service, temporary restraining order, etc. Id. at ?? 14, 31.

On October 26, 2007, SUN filed two “administrative” motions. One
sought to vacate the hearing of Yue’s motion to intervene in the
Netbula v. SUN case pursuant to FRCP 24(a) and for copyright
injunction. The other asked Judge Jenkins to consider the “fabricated”
declaration. Yue filed oppositions to both motions and asked the Court
to disqualify Pulgram for his unprofessional conduct.

On October 31, 2007, Judge Jenkins held a telephonic hearing on
defendants’ “administrative motions”. Yue was not given any notice
about this hearing and was not allowed to participate. Yue was later
informed that Mr. Laurence Pulgram advised Judge Jenkins that Yue
should be excluded from the telephonic conference. Following the
hearing, on November 2, 2007, Judge Jenkins signed an order which
stated the following:

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. The Motion of DongxiaoYue to
Intervene and Join as Plaintiff; for Injunctive Relief; and for
Copyright Impoundment [Docket Nos. 68-72] will be taken off calendar.

Yue then mailed a request for a tape recording of the telephonic
hearing and was told by the clerk of the court that no court reporter
was present and no audio recording was made.

Originally, Yue promised to Mr. Pulgram that he would file his action
against SUN/StorageTek in the first week of November 2007. Because of
Mr. Pulgram’s email about the possibility of reaching a stipulation on
the issue of additional claims and his legal advice, Yue delayed the
filing of Yue case against SUN/StorageTek. On October 31, 2007, Yue
communicated with Mr. Pulgram about Yue’s action against SUN, and Mr.
Pulgram stated that he was willing to accept service on behalf of SUN
for certain types of filings. Id. at ?? 16-18, 31.

Both Netbula and Yue fully informed Judge Jenkins about Yue’s
intention to file a separate action the Netbula v. SUNcomplaint in
court filings. See Document No. 91, p.4:10-18 (filed on October 30,
2007); Document No. 98, p.3:11-19 and Document No. 99, pp.4:23-5-18
(filed on November 5, 2007) of the Netbula v. SUNcase. Yue also filed
with the Court the emails communications between Mr. Pulgram and Yue.
Id. at ? 22.

On November 19, 2007, as Yue previously informed SUN/StorageTek and
Judge Jenkins, Yue filed a separate case against SUN, alleging 10
counts of infringement of three copyrights he personally owned. The
Yue v. SUN (Case No. C07-05850) case was assigned to another judge.

On November 20, 2007, Netbula’s former counsel and Yue went to the
court for the hearings scheduled that day. At the very beginning of
the hearing, Judge Jenkins asked Yue: “Are you Mr. Yue?” Yue said
“Yes”. Then Judge Jenkins told Yue that he “should cease and desist”
from filing papers before the court. Judge Jenkins further stated that
even if Yue became a party in the Netbula v. SUN case, “it still would
not give [Yue] authority to do so, to file pleadings in the matter.”
The following was the exchange afterwards (verbatim from the hearing
transcript).

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.

Yue Decl., at ?? 24-25.

Also at the November 20, 2007 hearing, Judge Jenkins coached SUN’s
lawyer to attack Yue’s ownership of the assigned copyrights. The
following is from the transcript:

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.

…

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?

Judge Jenkins denied Netbula’s request to substitute or join as a
copyright plaintiff in the Netbula v. SUN case, thus prevented Yue
from protecting his copyrights in that case.

At the hearing of SUN’s motion to intervene and modify BindView
protective order, Judge Jenkins forbade Yue to argue about his
opposition, and refused to hear my motions. The following is the
exchange at the end of the hearing:

MR. YUE: YOUR HONOR, MAY I, FOR THE RECORD? AM I UNDERSTANDING
CORRECTLY THAT MY MOTION TO INTERVENE AND –

THE COURT: NOT ON TODAY.

MR. YUE: -- HOLDING COUNSEL IN CONTEMPT –

THE COURT: LET ME SUGGEST, IT'S NOT ON TODAY BECAUSE YOU CAN'T MAKE
SUCH A MOTION YET. SO IT'S NOT ON TODAY.

MR. YUE: I WAS MOVING AS A THIRD PARTY, JUST AS SUN DEFENSE COUNSEL.

THE COURT: RIGHT.

MR. YUE: BUT I WAS A PRO SE.

THE COURT: IT WASN'T ON TODAY.

MR. YUE: WAS THE REASON VACATING MY MOTION BECAUSE I AM A PRO SE
LITIGANT?

THE COURT: NO, IT JUST WASN'T -- IT DIDN'T HIT MY CALENDAR TODAY.
THAT'S IT.

Also on November 20, 2007, Judge Jenkins and SUN made it clear that
theNetbula v. SUNcase onlydeals with onecopyright that was alleged in
the complaint (quoting transcript):

THE COURT: IS THIS THE ONLY COPYRIGHT AT ISSUE –

MR. PULGRAM: YES.

Thus, the intellectual properties in the Yue v. SUN case were never
part of the Netbula v. SUN case. In fact, they were explicitly
precluded from the Netbula v. SUN case.

On December 14, 2007, the hearing SUN’s motion for summary judgment in
the Netbula v. SUN case was held before Judge Jenkins. At the end of
the hearing, SUN’s attorney made an oral request to delay answering
Yue’s lawsuit in the Yue v. SUN case, which was presided over by a
different judge. Judge Jenkins immediately granted SUN’s motion and
asked the parties to stipulate to a new date. When Yue, the pro se
plaintiff in that case, attempted to raise objections, Judge Jenkins
forbade Yue to speak. Later, when Judge Jenkins came back into the
court and learnt that Yue refused to stipulate to a change of date, he
said that he would just order that SUN’s motion to be granted.

In November 2007, Yue mailed a complaint against Judge Jenkins to the
Ninth Circuit, alleging, inter alia, that Judge Jenkins retaliated
against Yue due to the blog article Yue wrote and persisted in his
retaliation. Yue’s complaint described in detail the events
surrounding the blog and how he came to know that there was
retaliation. Yue complained about Judge Jenkins’s failure to recuse
himself from the Netbula v. Symantec and Netbula v. SUNcase. Yue also
complained about Judge Jenkins’s not-to-file order which Yue alleged
was a violation of his due process. Yue further complained that Judge
Jenkins issued an ex parteorder in favor of defendants, threatened to
take Yue out for merely attempting to make a legal argument, coached
Mr. Laurence Pulgram to make argument against Yue and ignored Mr.
Laurence Pulgram’s unethical conduct.

Copies of Yue’s complaint against Judge Jenkins were sent to Judge
Jenkins on December 17, 2007.

On December 17, 2007, Yue sent a letter to Judge Jenkins, stating that
the circumstances and apparent bias and require that Judge Jenkins
disqualify himself from the cases in which Yue is a party.

On February 8, 2008, Judge Jenkins entered an Order denying request
for disqualification in the Netbula v. SUN docket. This Order stated
the following in the “FACTUAL BACKGROUND” portion:

The Court set a dispositive motions deadline in the 2006 case of
November 27, 2007. Accordingly, in October 2007 Defendants filed a
motion for summary judgment to be heard on that day. Around the same
time, the parties filed a flurry of documents with the Court. As is
relevant here, Plaintiff sought an order substituting Yue for
Plaintiff Netbula, Plaintiff’s counsel sought to withdraw as counsel
of record and Yue filed his own motion and briefing regarding various
matters.

In an October 31, 2007 telephonic conference in which Plaintiff was
represented by counsel, the Court, inter alia, rescheduled the Motion
for Summary Judgment hearing to December 13, 2007, vacated the hearing
noticed by non-party Yue, left Plaintiff’s motion to substitute
parties on calendar for November 20, 2007 and continued Plaintiff’s
counsel’s motion to withdraw as counsel until after the Court’s
resolution of the summary judgment motion. Defendants prepared an
order reflecting the Court’s rulings and the Court signed the order.

On November 20, 2007, the Court held a hearing on Plaintiff’s motion
to substitute parties. The Court denied the motion on the record and,
when Yue attempted to intervene in the proceedings, reminded Yue that
he was not yet a party to the action and could not file documents,
calendar hearings or speak in court without leave of the Court.

Unbeknownst to the Court, one day prior, Yue, proceeding pro se, filed
a separate action (the “2007 case”) against StorageTek and Sun. In the
2007 case Plaintiff alleges ten claims of copyright infringement. (See
Amended Complaint, Docket No. 9.) The 2007 case was originally
assigned to Judge Illston who, on December 3, 2007, issued an Order of
Referral for the Court to determine if the 2006 and 2007 cases were
related.

In the ANALYSIS portion of the February 8, 2008 order, Judge Jenkins
stated:

Yue alleges that his postings on an internet blog were known by the
Court and influenced the Court’s ultimate rulings on this matter.
Yue’s allegations consist solely of conclusions and are not
sufficiently definite and particular to convince a reasonable person
that bias exists. See Sykes, 7 F.3d at 1338. There is also no factual
support for this assertion in the record or in the Court’s own
experience.

…

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. Insofar
as Yue’s rights as a Plaintiff in the 2007 case were concerned, the
Court granted Yue leave to participate appropriately. Furthermore, Yue
does not allege, nor could a reasonable person find, that the Court
admonished Yue because of bias toward him, rather than because of the
panoply of legal rules, precedent and relevant case management
concerns governing the myriad issues raised by Yue's conduct.

In the November 20, 2007 hearing, Netbula’s attorney, Vonnah M.
Brillet, had the following exchange with Judge Jenkins (quoting from
transcript):

MS. BRILLET: YOUR HONOR, MR. YUE IS NOT TRYING TO ASSERT THE RIGHTS OF
NETBULA.

THE COURT: I RECOGNIZE THAT.

At the December 14, 2007 hearing of the Netbula v. SUN case, Judge
Jenkins stated the following about the Yue v. SUN case (p.65:3-7 of
the transcript):

Now, there is a related case, and it does strike me that it is
related. And this may be -- it's not completely overlapping with the
present claim.

On January 18, 2008, in the Netbula v. SUN case, Judge Jenkins granted
SUN’s motion for summary judgment on the copyright claim. In his
order, Judge Jenkins ignored crucial facts, including but not limited
to SUN defendants’ admissions that they exceeded the license and the
license agreement would be terminated upon SUN’s acquisition of
StorageTek.

On January 29, 2008, SUN filed a motion to dismiss the Yue v. SUN case
on the ground that that case is duplicative of the Netbula v. SUN
case. On the issue of Yue’s pre-Netbula copyrights, SUN stated:

This gambit will not work; these alleged pre-July 1996 materials
provide no basis for allowing this suit to proceed. As an initial
matter, actual registration—not just a pending application—is a
prerequisite to filing suit.

SUN’s motion to dismiss, Docket No. 35, pp.18:23-19:4.

On March 4, 2008, Judge Jenkins dismissed the Yue v. SUN case and
entered final judgment against Yue without a hearing. Against his
previous statement that the Yue v. SUN case “is not completely
overlapping” with the Netbula v. SUN claim, Judge Jenkins simply
repeated defense counsel Mr. Pulgram’s argument that the Yue v. SUN
case is duplicative of the Netbula v. SUN case, even though Yue had
been precluded from participating in the Netbula v. SUN case to
protect his personal rights. In the dismissal order, Judge Jenkins
states:

Yue-Sun presents the same claims as Netbula-Sun and is effectively
Plaintiff’s attempt to re-litigate issues that have already been
presented, and determined, by the Court. In addition, given the
tactics that Plaintiff has pursued, which have ranged from duplicative
to nearly vexatious, the Court finds that dismissing the action with
prejudice is appropriate.

ARGUMENT

Judgment should be vacated because of misrepresentation, deceptive
conduct and misconduct by the opposing party

A Court may relieve a party from a final judgment or order for the
following reason: “fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing party”
Federal Rule of Civil Procedure 60(b)(3). "To prevail, the moving
party must prove by clear and convincing evidence that the verdict was
obtained through fraud, misrepresentation, or other misconduct and the
conduct complained of prevented the losing party from fully and fairly
presenting the defense." De Saracho v. Custom Food Machinery, Inc.,
206 F.3d 874, 880 (9th Cir. 2000).

In the instant case, SUN obtained the judgment through a series of
deceptive, prejudicial and unethical conduct as well as
misrepresentations to the Court.

SUN’s counsel, Mr. Pulgram engaged in extensive direct communications
to Yue regarding the Netbula v. SUN case. He talked about various
substantive matters in the Netbula v. SUN case and proposed then
entered a stipulation with Yue on service by email.

Relying on Mr. Pulgram's communications on the Netbula matter, Yue
believed that Mr. Pulgram would eventually agree to Yue’s full
participation in the Netbula v. SUN case to assert his copyrights.

When Yue asked about filing a new lawsuit against SUN, Mr. Pulgram
stated that he would confer with his client, indicating the
willingness to consider a cooperative approach in the related
litigations.

Before the instant Yue v. SUN action was filed, Yue asked Mr. Pulgram
about issues of service and temporary restraining order in the
expected new action, Mr. Pulgram offered Yue legal advice on these
matters. He stated that he would accept service of Yue’s TRO
application by email.

Despite Netbula’s former counsel’s comment that Mr. Pulgram willfully
violated attorney ethics by communicating directly to Yue, based on
the communications and legal advices from Mr. Pulgram, Yue considered
Mr. Pulgram to be friendly. Although Mr. Pulgram worked for the
opposing party and must say things for his client, Yue thought that
Mr. Pulgram recognized Yue’s personal intellectual property rights in
the litigations. Yue reckoned that, otherwise, Mr. Pulgram would have
not communicated so freely with Yue.

However, in his later representations to the Court, Mr. Pulgram made
every attempt to preclude Yue from the case. During the October 31,
2007 telephonic hearing, Mr. Pulgram advised Judge Jenkins that Yue
should be disallowed. That hearing was about SUN’s motion to vacate
the hearing of Yue’s motion to intervene in the Netbula v. SUN case.
As a result, Mr. Pulgram enjoyed an ex parte telephonic conference
with Judge Jenkins, resulting in an order that vacated the hearing of
Yue’s motion to intervene and join as a party in the Netbula v. SUN
case.

Essentially, SUN communicated with Yue directly via Mr. Pulgram on the
Netbula litigation and drew from Yue substantive information about
Netbula’s and Yue’s work-product. Then after such unethical and
prejudicial conduct, it turned around and said that Yue and Netbula
were the same after all.

SUN’s motion to dismiss was full of misrepresentations of both law and
fact. For instance, Mr. Pulgram made a table showing the similarities
of the Netbula v. SUN case and Yue v. SUN case and then concluded that
the cases are duplicative. But the dissimilarities are what mattered,
the Yue v. SUN case alleged 10-counts of infringement based on 10
types of infringing acts, most of them are not addressed in the
Netbula v. SUN case. Mr. Pulgram wrote that “actual registration—not
just a pending application—is a prerequisite to filing suit.” Mr.
Pulgram omitted that in this judicial district, it was well
established that one could file a lawsuit with a pending application.
Judge Patel ruled on this very issue in the Napster case, in which Mr.
Pulgram was defense counsel. In the Netbula v. Symantec case, the
parties had extensive briefing on this very issue. According to
Fenwick’s own material, one “[g]enerally can file suit on a copyright
registration application”. “Copyright Infringement Litigation With
Some Asides on Software Copyright Litigation”1, Fenwick & West LLP.

SUN also stated in its Motion to Dismiss that:

Netbula’scounsel admitted that this assignment was motivated at least
in part by Dr. Yue’s desire to pursue Netbula’s infringement claims
pro se, see Netbula-Sun Docket No. 139 [Transcript of Proceedings Held
November 20, 2007 at p.11:9-10]

Docket No. 35, p.9:22-25.

The above statement is a plain mischaracterization of the record.
Netbula’s former counsel made no such statement. In fact, the
following exchange at that hearing shows the exact opposite.

MS. BRILLET: YOUR HONOR, MR. YUE IS NOT TRYING TO ASSERT THE RIGHTS OF
NETBULA.

THE COURT: I RECOGNIZE THAT.

Mr. Pulgram also argued that Yue was virtually represented in the
Netbula v. SUNcase, in spite of his own observation that “there is a …
question of … what parts [of the software] are owned by each” and his
own effort which precluded Yue from the Netbula v. SUN case. See
Kourtis v. Cameron, 419 F.3d 989 (9th Cir. 2005) (conflicting claims
on copyright precludes finding of privity and “weighty due process
considerations that make adequacy of representation the sine qua non
of any privity relationship.”).

The misrepresentations SUN made in its Motion to Dismiss (Docket No.
35) and the Reply Brief (Docket No. 46) were so pervasive Plaintiff
could not possibly list all of them here given the page limit.

As Mr. Pulgram is a licensed attorney and an officer of the Court, his
representations were more readily trusted and relied upon by the
Court. Plaintiff is apro selitigant. In court filings, Mr. Pulgram
attacked pro se litigants on the ground that “[a pro se] wants to be
free of the ethical restraints to which attorneys are bound.”

Plaintiff planned to argue against these misrepresentations at the
hearing scheduled on March 4, 2008 himself. However, relying on SUN’s
misrepresentations, Judge Jenkins vacated the hearing, and ruled
against Yue, the pro sePlaintiff, directly. Thus, Yue lost the
opportunity to shatter SUN’s misrepresentations and expose SUN’s
misconduct in a hearing. The Dismissal Order is thus a direct result
of SUN’s misconduct and Plaintiff is entitled to 60(b0(3) relief.

Judgment should be vacated because Judge Jenkins should have been
disqualified under 28 U.S.C. § 455

Federal Rule of Civil Procedure 60(b)(6) permits a Court to vacate a
judgment for “any other reason that justifies relief.” The U.S.
Supreme Court has held that Rule 60(b)(6) relief was available to a
litigant against whom judgment was entered by a Judge who had
improperly refused to recuse himself in the proceeding. Liljeberg v.
Health Services Acquisition Corp.,486 U.S. 847, 100 L. Ed. 2d 855, 108
S. Ct. 2194 (1988).

At the hearing of December 14, 2007, Judge Jenkins forbade Yue to
speak and then granted SUN’s motion which allowed SUN to delay
answering the complaint in the instant Yue v. SUN. On December 17,
2007, Yue sent a letter to Judge Jenkins (the “Letter to the Judge”)
on the docket of the instant case (Docket No. 11). This letter raised
the issues of apparent bias and prejudice and cited relevant rules on
mandatory disqualification.

Yue filed a complaint against Judge Jenkins in the Ninth Circuit,
alleging that, inter alia, (1) Judge Jenkins was retaliating against
Yue due to a blog he wrote; (2) Judge Jenkins issued ex parte orders
against Yue; (3) Judge Jenkins denied Yue due process by issuing a
“not-to-file” order without legal basis; (4) Judge Jenkins ignored Mr.
Pulgrams unethical conduct; (5) Judge Jenkins coached Mr. Pulgram to
attack the validity of copyright assignment; (6) Judge Jenkins
threatened to take Yue out for attempting to make legal argument; (7)
Judge Jenkins failed to recuse himself. Attached to the complaint was
Yue’s letter to the former Chief Judge of the Ninth Circuit, in which
Yue indicated that the person responsible for Netbula’s loss of
revenue in the Netbula v. Symantec case should be held accountable for
such losses. Judge Jenkins received a copy of Yue’s complaint on or
after December 17, 2007.

Judge Jenkins refused to disqualify himself by his order of February
8, 2008 in the Netbula v. SUN case. First, he stated that Yue did not
file a motion and affidavit. However, no motion is required to
precipitate a Judge's recusal under 28 U.S.C. § 455. Davis v. Board of
Sch. Comm'rs of Mobile County, 517 F.2d 1044, 1051 (5th Cir. 1975).
Second, Judge Jenkins stated the facts alleged in the Letter to the
Judge were insufficient. However, in the complaint Yue filed with the
Ninth Circuit, he alleged great details about the extra-judicial blog
and retaliation. In that complaint, Yue gave the name of the
magistrate judge and the names of the two attorneys who learnt about
the retaliation from the magistrate judge, and Yue’s conversation with
the magistrate.

As the U.S. Supreme Court stated in Liljeberg:

The very purpose of §455(a) is to promote confidence in the judiciary
by avoiding even the appearance of impropriety whenever possible. See
S. Rep. No 93-419, at 5; H. R. Rep. No. 93-1453, at 5. Thus, it is
critically important in a case of this kind to identify the facts that
might reasonably cause an objective observer to question Judge
Collins' impartiality.

The facts Yue alleged in his complaint against Judge Jenkins, if
proven, would establish that the Judge is biased against him. There
was an appearance of bias. Therefore, Judge Jenkins should have been
disqualified under §455(a).

The allegations in Yue’s complaint can find parallels in the decision
by the Committee to Review Circuit Council Conduct Disability Order of
the Judicial Conference (the “Committee”) of the United States in case
No. 98-372-001, including acts “issuing rulings as part of an improper
vendetta or some other illicit or vindictive motive.” In No.
88-372-001 (1988), the Committee affirmed a reprimand of a district
judge for stating that he would not permit the complainant to practice
in his courtroom. In No. 95-372-001, a district judge threatened to
imprison complainant for “simply expressing [complaint’s] legal
opinions” and “deliberately delayed issuing an order.” The Breyer
Committee Report2 states that a not-to-file order against a non-party
may not be merits-related.

The Motion to Dismiss was about whether Yue could prosecute
infringement of his personally owned copyrights. Part of the complaint
Yue had against Jenkins was that the Judge issued an ex parte order
that vacated hearing of Yue’s motion and issued the order that forbade
Yue to speak and file papers without legal basis. A ruling against Yue
on the Motion to Dismiss on the issue of privity can be used as
justification of the Judge’s “not-to-file” order and ex parte order.
Thus, Judge Jenkins had an interest in the outcome of the Motion to
Dismiss, such interest required his disqualification under 28 U.S.C. §
455(b).

Before he received a copy of Yue’s complaint, Judge Jenkins stated
that the Yue v. SUN case “[is] not completely overlapping with the
[Netbula v. SUN case].” He also recognized that “Mr. Yue is not trying
to assert the rights of Netbula.” But, the Dismissal Order concluded
the exact opposite.

In addition, as stated in Yue’s Motion for Disqualification of the
Assigned Judge, Judge Jenkins also had an interest in ruling against
Yue on all of his copyrights and copyright claims.

The Judgment should be vacated because of the manifest injustice of
the result

The three copyrights alleged in the instant action (the 2000 and 2K4
Copyrights and the pre-Netbula copyright) were never part of the
Netbula v. SUN case. The 1996 Copyright was “THE ONLY COPYRIGHT AT
ISSUE” in the Netbula v. SUN case. SUN made every effort to prevent
the three copyrights from being litigated in the Netbula v. SUN case
by precluding Yue from participating in that case. Also, four of the
individual defendants haven’t been served. In addition, the Yue v. SUN
case involves different transactions.

The facts in the case are plain. It is a simple case of right and
wrong. Throwing out Yue’s claims against defendants would be grave
injustice and damaging to the protection of intellectual property in
the U.S. and abroad. See Kourtis v. Cameron, 419 F.3d 989 (9th Cir.
2005) (conflicting claims on copyright precludes finding of privity
and “weighty due process considerations that make adequacy of
representation the sine qua non of any privity relationship.”).

The following table shows some of the differences of the Netbula v.
SUN and the instant Yue v. SUN case.

Transactional Nucleus of Facts in the Yue v. SUN Action
In Netbula v. SUN Complaint?
Considered by Netbula v. SUN Summary Judgment ruling?

?40. Lisa K. Rady (manager of LibAttach): “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.

No
No.

?40. Melnick: The agreement is specific to platform (Win NT and 95/98
platforms) types of Netbula software (PowerRPC SDK). This concerns me
greatly as we have already told them we are no longer shipping it with
our product.

No.
No.

?51. Melnick: As for Sun, it should be completed by the end of summer…
The only thing that you and I may have to do is for you to allow
assignment of the agreement to Sun. The agreements calls [sic] for
your approval. I assume you would sallow [sic] this as if you did not
the agreement would be terminated.

No.
No.

?52. Melnick: 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.

No.
No.

?98-99. Defendants, and each of them, made, offered to sell, sold, and/
or distributed copies of the infringing derivative works of the NT
SDK, or contributed to these activities.

No.
No.

?101-104. StorageTek knew it only had the right to distribute 1000
copies under the 2000 Agreement…StorageTek further violated
Plaintiff’s copyright by granting “floating” licenses which permitted
its customers to make unlimited number of copies of Plaintiff’s
software…Lisa Rady wrote the following about LibAttach: “There is no
license key in the product, and it is apparent that the software has
been copied, uncontrolled, for several years” and “engineering has not
and did not monitor the distributions.” Defendants thus further
violated Plaintiff’s copyright by willfully failing to monitor the
copying of Plaintiff’s software and willfully permitting others to
make unauthorized copies.

No.
No.

Partial
No.

No.
Partial (the Court did not consider the effect of termination)

CONCLUSION

Plaintiff requests relief under FRCP 60(b)(3) because of SUN and its
attorneys’ misconduct and misrepresentations; Plaintiff requests
relief under FRCP 60(b)(6) because of Judge Jenkins’s refusal to
disqualify himself and the manifest injustice in the decision.

Respectfully submitted,

Dated: March 26, 2008

________________________________

DONGXIAO YUE (Pro Se)

1 http://www.fenwick.com/docstore/Publications/IP/Copyright_Infringement_Litigation.pdf
(last accessed on March 25, 2008)

2 http://www.supremecourtus.gov/publicinfo/breyercommitteereport.pdf

(PDF) Motion for Relief from Judgment

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