Motion for Stay and Responses
October 7, 1996
PLAINTIFF URANTIA FOUNDATION'S MOTION FOR PARTIAL STAY AS TO COUNT V (COPYRIGHT INFRINGEMENT)
Pursuant to Rule 7 of the Federal Rules of Civil Procedure, plaintiff URANTIA Foundation ("Foundation"), through its attorneys, respectfully files its motion for an order staying all proceedings on Count V of its complaint (for copyright infringement) pending the decision of the United States Court of Appeals for the Ninth Circuit in an appeal captioned URANTIA Foundation v. Kristen Maaherra, in the United States Court of Appeal s for the Ninth Circuit, Case No. 95-17093.
The only issue before the Ninth Circuit is whether the Foundation owns a valid and enforceable copyright in and to The URANTIA Book. If the Foundation prevails on appeal, the Ninth Circuit's decision will narrow the copyright issues presented by the Foundation's copyright claim in this case. Or n the other hand, if the appeal is unsuccessful and further review by the Supreme Court is not available, the Ninth Circuit's decision will eliminate the Foundation's copyright claim in this case. Thus, considerations of judicial economy warrant a stay of the Foundation's copyright claim pending the Ninth Circuit's decision. The requested stay will conserve limited judicial resources by eliminating duplicative and unnecessary litigation over the copyright issues in this case.
Pursuant to Local Rule 7.1A., the undersigned counsel for the Foundation certifies that, prior to filing this motion, he conferred with Joe Lewis, who is lead counsel for defendant Kristen Maaherra, by telephone on more than one occasion in an attempt to resolve the issue raised herein. Shortly after defendant Kristen Maaherra was served with the summons and complaint, the undersigned counsel for the Foundation suggested to Mr. Lewis that the parties agree to the entry of an order staying all proceedings on the Foundation's copyright claim in this case pending the Ninth Circuit's decision. During the initial conversation, Mr. Lewis took no position on the issue of whether his client would consent to an order staying all proceedings on the Foundation copyright claim until the Ninth Circuit decides the pending appeal. However, in a subsequent conversation, Mr. Lewis stated that his client will not consent to the requested stay and that his client intends to oppose this motion.
As explained in the accompanying brief, i stead of simply consenting to the entry of an order staying the Foundation's copyright claim until the Ninth Circuit decides the pending appeal, defendant Kristen Maaherra has filed a "motion for protective injunction" with the Arizona district whose judgment is the subject of the appeal. Defendant Kristen Maaherra's "motion for protective injunction" asks the Arizona district court to enjoin the Foundation from pursuing its copyright claim in this case, and therefore requests essentially the same relief as the Foundation seeks by filing this motion for a partial stay.
The background to the case which is the subject of the Ninth Circuit appeal, and the reasons for the requested partial stay are more fully explained in the Foundation's supporting brief which is filed herewith.
Dated this 7th day of October, 1996
By Scott A. Wharton, et al,
Attorneys for Plaintiff, Urantia Foundation
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PLAINTIFF URANTIA FOUNDATION'S BRIEF IN SUPPORT OF ITS
MOTION FOR PARTIAL STAY AS TO COUNT V (COPYRIGHT INFRINGEMENT)
Plaintiff URANTIA Foundation ("Foundation") submits the following brief in support of its motion for partial stay as to Count V (copyright infringement) and, for the following reasons, asks the Court to stay Count V of the Foundation's complaint until the Ninth Circuit decides a pending appeal (to which defendant Kristen Maaherra is a party) in which the on] y issue is the validity of the Foundation's renewal copyright in and to The URANTIA Book:
I. INTRODUCTION
A. The URANTIA Book
On October 12, 1955, the Foundation published The URANTIA Book with the required copyright notice. Less than three months later, on January 3, 1956, the Foundation registered its claim of copyright for the original term of copyright ownership in The URANTIA Book by submitting its application for reg and by depositing two copies of the book with the Register of Copyrights. Complaint, Exhibit I. The Registrar of Copyri ghts issued the
original registration certificate to the Foundation. Id. in 1983, the Foundation applied for renewal of its status ory copyright in The URANTIA Book in a timely manner, and the Registrar of Copyrights issued the renewal certificate to the Foundation. Complaint, Exhibit J. No one other than the Foundation has ever claimed ownership of the copyright in either the individual Urantia Papers or The URANTIA Book.1
B. The Arizona Litigation
On February 27, 1991, the Foundation filed a civil action captioned URANTIA Foundation v. Maaherra, Civ.91-0325, in the United States District Court for the District of Arizona (the "Maaherra case"). The defendant in the Arizona case is the same Kristen Maaherra who is a defendant in the present : action, and she is represented by the same counsel in both cases. Defendant Eric Schaveland is her husband.
The Foundation's complaint in the Maaherra case asserted claims for, inter alia, copyright infringement. M MAAHERRA answered by raising several defenses to the Foundation's claim for copyright infringement and asserting counterclaims for, inter alia, a
1 In previous infringement actions, defendants have challenged the validity of the Foundation's copyright in and to The URANTIA Book, but without claiming any rights in the book themselves. Previous defendants, including Kristen Maaherra in the Arizona case, have merely argued that the Foundation does not own a valid copyright, and The URANTIA Book therefore is in the public domain. The Foundation is the only party to ever ownership of the copyright since The URANTIA Book was first published in 1955.
declaratory judgment declaring the Foundation's renewal copyright in and to The URANTIA Book to be invalid and unenforceable . 2
On December 5, 1994, Maaherra filed a motion for partial summary judgment on her counterclaim for a declaration that the Foundation's copyright in The URANTIA Book is invalid and unenforceable, and the Foundation opposed that motion. The district court granted Maaherra's motion on February 17, 1995, without a hearing or a trial on the merits .3 On October 25, 1995, the district court entered its amended final judgment which dismissed the Foundation's claim for copyright infringement and declared the Foundation's copyright to be invalid and unenforceable. On November 1, 1995, the Found ation filed its notice of appeal, which initiated a timely appeal to the United States Court of Appeals for the Ninth Circuit (" Ninth Circuit"). The Foundation's appeal, which is captioned Urantia Foundation v. Maaherra, Case No. 95-17093, has been fully briefed for several months. The parties are waiting for oral argument to be scheduled. The Foundation is vigorously pursuing its appeal and believes that
2 Maaherra's answer and counterclaim also a alleged that the Foundation's copyright is invalid for several reasons that were resolved in favor of the Foundation on the merit' 3 and are not at issue on appeal. The district court held that Ma aherra's actions were not justified by the First Amendment or the R eligious Freedom Restoration Act of 1993, that The URANTIA Book d id not enter the public domain prior to publication pursuant to notice of copyright, and that The URANTIA Book does, in fact, consist of copyrightable subject matter.
3 The district court's decision is reported at 895 F.Supp. 1347 (D.C. Ariz. 1995).
the Ninth Circuit will reverse the district court' s decision and that its copyright will be reinstated.
On September 27, 1996, defendant Kristen M (AAHERRA filed a "motion for protective order" with the district court in Arizona which asks the Arizona court to enjoin the Foundation from pursuing its copyright claim in this case. She filed her motion for "protective injunction" despite the fact that the complaint in this case specifically asks the Court to stay the Foundation's copyright claim until its appeal is decided in by the Ninth Circuit in the Arizona litigation. Moreover, long before Kristen Maaherra filed her "motion for protective injunction" with the Arizona court, her counsel was informed that the Foundation has no desire to actively pursue a copyright claim in this case until the Ninth Circuit decides the appeal, and that the Foundation planned to file this motion. He also was informed that the only reason why the Foundation asserts a copyright claim in this case is to prevent the defendants from asserting a merger and bar or waiver defense in a subsequent copyright case because the same facts give rise to the Foundation's copyright, trademark, and unfair competition claims .4
4 The same counsel who represents defendant Kristen Maaherra in this case also represents two of the defendants in a case captioned URANTIA Foundation v. Fifth Epochal Fellowship, et al., in the United States District Court for the Northern District of Illinois, Eastern Division, Case No. 96C-5105 ( 1996). In that case, the Foundation also asserts trademark, unfair competition, anti-dilution and copyright claims based on the same facts. The Foundation also filed a stay motion in the Illinois case which clearly informed all parties and their counsel of the prophylactic reasons why the Foundation brought a copyright claim before the Ninth Circuit decides the pending appeal. In fact. in that case the parties have agreed to settle their non-copyright disputes, and to allow the Foundation to dismiss its copyright claim without
The only reason why the Foundation did not file this motion earlier is because the defendants requested a thirty (30) day extension to answer the complaint. In light of defendant Kristen Maaherra's unexpected filing of her "motion for protective injunction" in Arizona, and her unwillingness to simply agree to the requested stay, the Foundation has no choice but to file this motion before the defendants answer the complaint.
C. The Defendants' Infringing Activities
In February, 1996, the Foundation learned that defendant Eric Schaveland had procured and the defendants were using "urantia.com" as an Internet domain name. The Foundation also learned that the defendants had created one or more "home pages" (such as "www.urantia.com" and "www.CSN.net/~Schave/" a/k/a "Kristen and Eric's Home Page") on the Internet which prominently display the Foundation's URANTIA and concentric circles s symbol marks in connection with information concerning The URANTIA Book which they offer to the public via the Internet.
At the time defendant Schaveland procured t he "urantia.com" Internet domain name, the Foundation was already on-line with an Internet service which uses "urantia.org" as its domain name. Defendant Schaveland registered his "urantia.com" domain name as owned by a for profit company (i.e., a commercial entity) named
prejudice and with the specific agreement that no merger and bar, waiver or similar defense will be raised in a future copyright action if the Ninth Circuit rules in favor of the Foundation. Thus, Kristen Maaherra and her counsel are well aware of the fact that the Foundation has no desire to actively pursue a copyright claim against the defendants until (and unless) the Ninth Circuit decides the copyright appeal in the Foundation's favor.
"Urantia" with its offices located at his home address in Jamestown, Colorado. In response to the Foundation's request, Network Solutions, Inc. ("NSI") (the organization which assigns domain names for the Internet) recently placed defendant Schaveland's "urantia.com" Internet site and domain name on "hold" status, and defendant Schaveland's site presently cannot be accessed on the Internet. Defendant Schaveland has protested NSI's decision, and has indicated that he intends to continue using the "urantia.com" domain name in the event NSI remove es it from "hold" status.
On their Internet sites, the defendants offer to the general public, free of charge, the complete text of The URANTIA Book, as well as study aids for the book, which can be read, downloaded onto a diskette, or printed directly from the Internet. The Foundation has not authorized either of the defendants to use its marks to identify their home pages or make the text of The URANTIA Book or derivative works available on the Internet-.
II. ARGUMENT AND CITATION OF AUTHORITY
As a result of the defendants' actions on the Internet, and the defendants' failure to discontinue their Infringing activities and deceptive practices in connection with their I nternet sites and their distribution of the text of The URANTIA Boo] k, the Foundation filed this action for trademark and service mark infringement (Count I), unfair competition (Count II), trademark dilution (Count III), and copyright infringement (Count V). All of the Foundation's claims arise out of the same facts; namely, the
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defendants, activities on the Internet. Thus, the Foundation has no choice but to assert a copyright infringement claim in this case.
The Foundation cannot assert its trademark, unfair competition, and dilution claims now and wait for the Ninth Circuit's decision in the Maaherra appeal to decide whether to file a second action against the defendants for copyright infringement on the same facts which give rise to the Foundation's trademark claims. In a subsequent copyright infringe ment case, the defendants undoubtedly would argue that the Foundation's copyright claim is barred because they failed to assert a cc copyright claim in this case. If the Foundation does not assert its copyright claim in this action, it will risk the possible merger and bar of its claim because it arises from the same facts as the other claims asserted in this case. Clark v. Haas Group, Inc., 953 F.2d 1235, 1238 (lOth Cir. 1992) (Res judicata not only bars m matters that were actually litigated, but also issues that could ha ve been raised). May v. Parker-Abbott Transfer and Storage, Inc., 899 F.2d 1007, 1009 (lOth Cir. 1990) (A final judgment on the merits precludes the parties from re-litigating issues that were or could have been raised). However, at the same time, the Foundat ion acknowledges that its ownership of the copyright in and to ' The URANTIA Book hinges on the outcome in the Ninth Circuit appeal, and that an unfavorable decision by the Ninth Circuit will eliminate Foundation's copyright claim in this case. See Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 101 S. Ct. 2 2424, 2428, 69 L.
Ed. 2d 103 (1981) ("A final judgment on the merits of an action precludes the parties or their privies from reLitigating issues that were or could have been raised in that action"); Montana v. United States, 440 U.S. 147, 99 S. Ct. 970, 973, 59 L. Ed. 2d 210 (1979).
The solution to the "Catch 22" situation in which the Foundation finds itself is for the Court to stay the Foundation's copyright claims until the Ninth Circuit decides the Foundation's appeal in the Arizona case. In the event that the Foundation's appeal is successful, the Court can lift the stay and allow the Foundation's copyright claims to proceed.5 On the other hand, if the Foundation's appeal does not succeed, and further review by the Supreme Court is unavailable, the Foundation will have no choice but to voluntarily dismiss its claim for copyright infringement in this case.
"The power of a federal court to stay its proceedings in such circumstances is unquestioned" 1B James W. Moore, et. al., Moore's Federal Practice paragraph 0.416[4], Footnote 11 (2dEd. 1995). The requested partial stay is consistent with the general rule that a district court has substantial "inherent power' to control and manage its docket. Link v. Wabash R.R., 370 U .S. 626, 628, 82 S.Ct. 1386, 1388, 8 L.e. 2d 734 (1962) (the abi lity of district courts to take procedural actions not specifically covered by the
5 A district court judgment that has been v vacated, reversed or set aside on appeal is deprived of all p reclusive effect. Franklin Sav. Ass'n v. Office of Thrift Supervision, 35 F.3d 1466 (lOth Cir. 1994); see also 1B James W. Moore, et. al., Moore's Federal Practice, paragraph 0.416[2] (2d Ed. 1995).
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federal rules stems from an "inherent power" in courts to "manage their own affairs so as to achieve the orderly and expeditious disposition of cases."); see also, U.S. v. Carrigan, 804 F.2d 599, 603 (lOth Cir. 1986) (the source of district co, urt authority to enter order was "its inherent power to control and supervise its own proceedings"). The court's determination of whether to grant a stay under the circumstances presented by this case is not based upon adherence to strict rules; rather "[t]he factors relevant to wise administration here are equitable in nature." Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221 (1952).
If the Foundation prevails in the Ninth Circuit, that court's decision will help narrow the issues presented by the Foundation's copyright claim based on the facts which give rise to this case. On the other hand, in the absence of further review by the Supreme Court, an unfavorable decision by the Ninth Circuit will eliminate the Foundation's copyright claim in this case. Thus, judicial economy favors a stay of the Foundation's copyrig ht claim pending resolution of the Ninth Circuit appeal. The requested stay will conserve limited judicial resources by eliminating duplicative and
unnecessary litigation over the copyright issues presented by this case. (Footnote 6: The defendants could request a summary adjudication of the Foundation's copyright claim by asserting the preclusive effect of the Arizona district court judgment in this case before the Maaherra appeal is decided. 1B James W. Moore, et. al., Moore's Federal Practice, paragraph 0.4.6 [3.-2] (2d Ed. 1995) (the pendency of an appeal does not ordinarily suspend the operation of an otherwise final judgment as res judicata or collateral estoppel). However, in the event the Court were to enter partial summary judgment on the basis of the Arizona judgment, and the judgment subsequently is reversed by the Ninth Circuit, it would be necessary for the Court to vacate its prior ruling as the Arizona judgment would be deprived of any preclusive effect. See, fn. 5 Supra. If the Court stays Count V until the appeal is decided, none of these steps will be necessary because the Arizona judgment will either be reversed and have no preclusive effect, or, in the |absence of the availability of further review by the Supreme Court, the district court judgment will be affirmed and the Foundation will dismiss its copyright claim in this case. End of Footnote 6).
III. CONCLUSION
For all the foregoing reasons, the Foundation asks the Court to grant its motion for partial stay and to enter an order staying further proceedings on Count V of the Foundation's complaint pending the decision of the United States Court of for the Ninth Circuit in URANTIA Foundation v. Kristen MAAHERRA, Case No. 95-17093.
Dated this 7th day of October, 1996.
By Scott A. Wharton
William T. Slamkowski
ATTORNEYS FOR PLAINTIFF,
URANTIA FOUNDATION
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October 19, 1996
Defendant ES's Response to Plaintiff's Motion for Stay.
Defendant Schaveland's Response to Plaintiff's Motion
For Partial Stay As To Count V (Copyright Infringement)
Defendant Eric Schaveland objects to Plaintiff's Motion For Partial Stay As To Count V (Copyright Infringement) for the following reasons:
1. Defendant Schaveland intends to submit a Motion to this court asking for summary judgment on the copyright issue in this case.
2. Defendant Schaveland believes that waiting until Plaintiff has exhausted the appeal process will take years. During this time Plaintiff is likely to initiate other Copyright Complaints against Defendant as well as others -- Plaintiff initiated other copyright lawsuits just this summer. Therefore, judicial economy would be better served by a summary adjudication of the Foundation's copyright claim based on the preclusive effect of the Arizona District court judgment in this case before the Maaherra appeal is decided.
3. Defendant Schaveland is not named in Plaintiff's lawsuit against Kristen Maaherra. Consequently, Defendant Schaveland has no control over Maaherra's response to plaintiff's appeal. Granting a Stay on Count V for Plaintiff would place Defendant Schaveland in the position of having to wait for another Court (with which he has no position) and other litigants (over whose decisions he has no control) to decide his future.
4. Plaintiff refers extensively in its Motion for Stay and supporting Brief to conversations with Maaherra's attorney. These arguments do not apply to me as I have no attorney, and I am not privy to what these other attorneys agree or disagree upon. All I can do is read Plaintiff's Complaint for what is says. Plaintiff's complaint clearly asks for two separate copyright-specific reliefs. In relief request (c), Plaintiff mentions a stay of count V. In relief request (d), however, Plaintiff asks this court for preliminary and permanent injunctive relief on the copyright issue. If this Court can be asked by Plaintiff for a preliminary injunction stopping me from publishing a public domain religious revelation, then surely it is appropriate for Defendant to ask this court to decide the copyright issue involved.
5. Urantia Foundation has asked this Court to grant a preliminary injunction against me in order to prevent my free distribution of a religious revelation called the Urantia Papers. A stay on Count V (Copyright Infringement) does not address the issue raised in the relief sought on page 14 section (d) of their complaint; "a preliminary injunction and a permanent injunction ordering the defendants to ... cease and desist from publishing the text of the Urantia Book on the Internet."
6. Plaintiff Foundation acts as if an injunction is a trivial thing for this Court to grant while Plaintiff spends years exhausting the appeal process. Since the Honorable Judge Urbom and the Federal Appeals Court both denied Plaintiff's motions for an injunction stopping Kristen Maaherra from using the text of the Urantia Book during Plaintiff's appeal, Plaintiff has apparently been "court shopping" for an injunction; Plaintiff has thereby ended up in this Court asking for an injunction not only against Kristen, but also against Defendant Schaveland. I strongly object to this attempted misuse of the legal system.
7. In my life an injunction barring me from publishing the Urantia Papers revelation on the Internet would be a very burdensome restriction of my religious freedoms. You see, the Urantia Papers are at the center of my religious faith. I believe that in reading these Urantia Papers, human mind can actually come into contact with superhuman mind -- the various authors of the Urantia Papers. It was through reading this revelation that I first met Jesus and He became a real person for me; a friend, an elder brother, a Spirit guide. This is why it is important to me to give away the Urantia Papers in an unrestricted manner.
8. Apparently, if Urantia Foundation has its way, I would be forbidden to continue my Urantia Paper distribution projects until the Plaintiff has exhausted all possibility of appeal. This could obviously take years, rather than months. It would seem that Plaintiff Foundation is trying to eviscerate the Honorable Senior Federal Judge Warren K. Urbom copyright decision placing the Urantia Papers into the public domain.
9. The Honorable Judge Urbom made a decision that placed the Urantia Papers in public domain. I intend to request this Court to affirm this decision of an equal Court. In the absence of any ruling of a higher court invalidating the public domain status of the Urantia Papers, these Papers should remain in the public domain where anyone can freely use them.
Defendant Schaveland therefore respectfully asks this Court to deny Plaintiff's Motion For Partial Stay As To Count V(Copyright Infringement).
RESPECTFULLY SUBMITTED this 19th day of October, 1996.
Eric Schaveland
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October 25, 1996
Defendant KM's Response to Plaintiff's Motion for Stay.
DEFENDANT KRISTEN MAAHERRA'S BRIEF IN OPPOSITION TO MOTION FOR PARTIAL STAY AS TO COUNT V
Defendant, Kristen Maaherra ("Maaherra"), submits the following Brief in Opposition to the Motion for Partial Stay as to Count V of the Complaint for copyright infringement. For the reasons set forth below and in the accompanying Affidavit of Kristen Maaherra, the more appropriate action for the Court to take is to grant Maaherra's pending Motion for Partial Summary Judgment as to Count V of the Complaint.
The Urantia Foundation ("Foundation") argues that staying proceedings as to Count V of the Complaint will promote judicial economy. However, judicial economy will truly be served by resolving this claim, rather than leaving it to clog the docket for the next few years while an appeal is pending before the Ninth Circuit Court of Appeals and the U.S. Supreme Court. The Foundation cites Moore's Federal Practice for the proposition that this Court has the power to stay its proceedings. (Foundation Brief at 8.) However, the Foundation fails to point out what Professor Moore teaches, namely that "[s]uch a stay will not always be granted, and in the larger interest of justice, should not be." 1B James W. Moore, Moore's Federal Practiceparagraph 0.416[4], text after Footnote 11 (2d Ed. 1991). Thus, the interest of justice does not favor the issuance of a stay.
As set forth in the Declaration of Kristen Maaherra, the mere existence of this unresolved copyright claim is detrimental to Maaherra, both financially and emotionally. (Maaherra's Declaration, paragraph 8 & 15). The filing of this new lawsuit has already created confusion in the Urantian community as to the validity of the judgment in the Arizona case declaring the copyright in the Urantia Book to be invalid. (Id., paragraph 12). Granting the Foundation's Motion for Stay will continue the confusion that the Foundation has caused in the Urantian community as to the validity and effectiveness of the judgment that has been entered against it. On the other hand, granting Maaherra's Motion for Partial Summary Judgment will help alleviate this problem.
The Foundation claims that the only reason why it has reasserted a copyright claim is to prevent a hypothesized merger and bar defense that might be raised in a subsequent case. (Footnote 1: The Foundation's brief is replete with unsupported factual allegations as to Defendant's activities as well as the knowledge of Defendant and her counsel. These unsupported allegations should be ignored by the Court. Submitted herewith is a copy of a Declaration that was filed with the Arizona court on this subject.) Assuming, arguendo, that the Foundation's concern is warranted, its concern would be fully satisfied by the grant of summary judgment on Count V of the Complaint. Since Maaherra is entitled to summary judgment as a matter of law, there is no remaining reason for this Court to stay the copyright cause of action.
If the Foundation's appeal is unsuccessful, no further action will be required for this Court with respect to Count V of the Complaint. In the unlikely event that the Foundation's appeal is successful, the Foundation can make a motion before this Court pursuant to Rule 60(b)(5) of the Federal Rules of Civil Procedure to vacate this Court's judgment and proceed with the copyright claim on the merits.
For the foregoing reasons, Maaherra requests that the Court deny the Motion for Stay and grant her partial summary judgment dismissing Count V of the Complaint.
Respectfully submitted,
Dated: October 25, 1996.
Respectfully submitted,
Peter A. Jaffe
Joseph D. Lewis
Attorneys for Defendant Kristen Maaherra
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DECLARATION OF JOSEPH D. LEWIS
JOSEPH D. LEWIS hereby declares:
1. My name is Joseph D. Lewis. I am over 21 years of age and am competent to testify regarding the matters set forth herein. I have personal knowledge of the facts stated herein and know them to be true.
2. I am one of the attorneys for Kristen Maaherra ("Maaherra") in this case, as well as in the second case which Urantia Foundation (the "Foundation") has brought against Maaherra in the United States District Court for the District of Colorado.
3. At no time prior to the filing of a second lawsuit against Maaherra did the Foundation or its attorneys contact me with regard to any activity of Maaherra which they believed was either unlawful, or in violation of the Settlement Agreement between the Foundation and Maaherra. Indeed, I spoke with Mr. Wharton on several occasions after the Foundation supposedly learned of the alleged activity giving rise to the second lawsuit, including discussions in the days just prior to the filing of the second lawsuit. At no time prior to the filing of the second case was any problem or concern with Maaherra's activities or potential new litigation with Maaherra mentioned.
4. After the Foundation brought its second lawsuit against Maaherra, I spoke with
Mr. Scott Wharton, attorney for the Foundation, and advised him that Maaherra was not responsible for the activity complained of in the Complaint and that, in any event, the copyright claim was barred by the judgment in the Arizona case. I requested through Mr. Wharton that the Foundation withdraw the case against Maaherra, and noted to him that the Complaint could be unilaterally withdrawn since no answer had been filed. Mr. Wharton declined to do so. Mr. Wharton stated that he had evidence to support the allegations, but declined to send me a
copy of it.
5. After reviewing the Complaint, I asked Mr. Wharton to consent to a thirty day
extension of time in which to respond to the new Complaint. Mr. Wharton said that the Foundation would not consent to my request because he was in the process of preparing a motion for preliminary injunction. Subsequently, after a co-defendant had moved for a thirty day extension of time, Mr. Wharton consented to this request because he believed that the request would have been granted, even if opposed, and I agreed not to use the extension of time to delay a hearing on a preliminary injunction.
6. Mr. Wharton did at one point indicate that one reason why the copyright case was brought, was because he felt that the claim might be barred if not brought now. I asked Mr. Wharton for authority for his concern that a copyright claim could be barred if not raised in a prior trademark case, to which he responded that he had no cases on point. I advised Mr. Wharton that it was my view that the claim was already barred.
7. I advised Mr. Wharton that Maaherra would not agree to any stay of the copyright case because she did not want a new unresolved case hanging over her head for a number of years and again asked him to withdraw the Complaint. At no time prior to the filing of the Motion for Protective Injunction did the Foundation offer to withdraw the Complaint in this case, in whole or in part.
8. After the Motion for Protective Injunction was filed, Mr. Wharton suggested that the Foundation would consider withdrawing the copyright against Maaherra, if certain conditions were agreed to. I asked Mr. Wharton to put a proposal in writing, but to this date have not received any such proposal. I also suggested to Mr. Wharton that we try to resolve the entire case so that the entire Complaint could be withdrawn. Mr. Wharton did not believe that such discussions were feasible at this time.
I declare under penalty of perjury that the foregoing statements are true to the best of my knowledge. Dated this 23rd day of October, 1996 in Washington, D.C.
Joseph D. Lewis
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Declaration of Kristen Maaherra
KRISTEN MAAHERRA hereby declares:
My name is Kristen Maaherra. I am over 21 years of age and am competent to testify regarding the matters set forth herein. I have personal knowledge of the facts stated herein and know them to be true.
The Urantia Papers explain the universe and our role in it. The Urantia Papers are my religion. I've been studying the Papers for 27 years.
Sharing the Papers and study aids based on the Papers while raising 4 children has been my life. Currently, I am working on a multi-media CD of the Papers which includes the text of the Papersand study aids based on the Papers.
This lawsuit takes time, energy, and money away from this project. A "stay" is not the same as not being sued in the first place.
Plaintiff Foundation believes the world is not ready for the Urantia Papers, and they're doing all they can to stop Urantians from sharing God's gift to the planet.
For an elaboration of the above themes, please continue reading.
The Urantia Papers -- My Religion
1. The Urantia Papers are a revelation, the fifth epochal revelation to this planet. I believe I have a responsibility to spread the Urantia Papers to all the world, and this duty comes straight out of the Urantia Papers.
Service Projects
2. I have given away many study aids for the Urantia Papers. I, along with many other Urantians, felt the need for a comprehensive index of the Urantia Papers. In the mid-1980s, my husband and I decided to compile such an index.
3. My husband and I prepared and gave away two printed versions of the index at the International Urantia Conference in 1990 at Snowmass, Colorado, and received very favorable response from Urantians regarding this study aid.
4. My husband and I prepared and gave away an electronic index of the Urantia Papers. This electronic study aid was distributed by us without charge, and we received enthusiastic response to our efforts except from Plaintiff Foundation who brought their former lawsuit against me in February, 1991.
5. What my husband, Eric Schaveland, currently gives away on the Internet is an updated version of the same FolioViews index program I was sued for by the Foundation in 1991.
6. I am currently working on a multi-media CD of the Urantia Papers. This new lawsuit was served right after I gave away 60 beta-test copies of the CD at the International Conference for Urantians in Flagstaff, Arizona, this summer.
Plaintiff's "Court-Shopping" Activities
7. Now, because Plaintiff lost, and because Plaintiff also failed to obtain further injunctions against me from either the Arizona Court or the Appeals Court, the Foundation has gone "court-shopping" for another copyright injunction from this Colorado Court.
8. The Foundation writes that a "stay" ... "would accomplish the exact same result" as having the copyright part of the new lawsuit dismissed. The Foundation seems to be telling me that a "stay" is the same as if they had never filed a lawsuit in the first place. But it's not the same -- at least to me, it's not. The Foundation's attitude reveals a heartless lack of compassion, understanding, or ability to put oneself in another's shoes. They may not care if I have a lawsuit hanging over my head for another 5 years, but I do. I'm a person, not a business or an institution; I want my life back.
9. The "stay" Plaintiff Foundation asks for on page 14, (c), of their Complaint, has nothing to do with the claims for relief they ask for on page 14, (d), of their Complaint. In (d) they ask the Court to "to enter a preliminary injunction and a permanent injunction ordering the Defendant(s) ... to cease and desist from publishing the text of the Urantia Book on the Internet." The Foundation wants a stay, but they're asking for an injunction. They did not "stay" their claims for relief in (d). I've already been under a Court Injunction for Copyright placed by the Foundation. I didn't like it.
10. If this Court has the power to grant the injunctive relief the Foundation seeks from it, then this Court has the power to rule on the Copyright, and I have the right to a Copyright judgment from this Court. If Plaintiff Foundation believes that only the Appeals Court now has jurisdiction over these copyright matters, why do they ask this court "to enter a preliminary injunction and a permanent injunction ordering the Defendants ... to cease and desist from publishing the text of the Urantia Book on the Internet."?
11. Plaintiff Foundation did file another Copyright Lawsuit against me. They certainly didn't have to, but they chose to. And they filed it in this court. And because they filed it, and filed it in this court, I am entitled to a judgment from this court.
Are the Urantia Papers Still in Public Domain? Confusion Among Urantians
12. I have been asked recently by Urantians who have heard of all these new copyright lawsuits (the Fellowship, Uversa Press, Jesusonian, Eric Schaveland) brought by the Foundation, "Has Urbom's Decision been reversed? Does the Foundation own the copyright again? Aren't the Papers in public domain anymore?" I believe the Foundation relishes and cultivates such confusion.
Phone Call from Plaintiff Trustee
13. When Plaintiff Foundation's president, Pat Mundelius, called me on October 6, 1996, and told me the Foundation was not "harassing" me, I asked her why was she suing me, then, if she didn't mean to harass me? I carefully explained to her the reasons I thought I shouldn't be on the lawsuit in the first place. (It is Eric Schaveland's Home Page and Domain Name on the Internet). I reminded her that all I ever did was create and give away a replete index of the Urantia Papers. I asked Plaintiff President if giving away an index was such a "crime" I needed to be sued twice for it.
14. During that same phone call, Plaintiff Foundation's president, Pat Mundelius, told me that Plaintiff Foundation intended to ask for a "stay." She claimed a "stay" was like having the copyright part of the lawsuit dismissed. I asked her why not then dismiss the lawsuit against me, or at least the copyright part of the lawsuit. She just laughed. I asked her why the Foundation was making a third attempt at a "preliminary" and "permanent" copyright injunction against me for a book that is in the public domain. I tried to explain that not only do I not want another injunction, but I did not want another copyright lawsuit in the first place.
15. I told Plaintiff trustee that being sued by your religious group is stressful, expensive, and time-consuming. I told her I planned to work on the CD exclusively this fall. I've had to set aside the CD project to deal with this new lawsuit. And now I am concerned that Plaintiff Foundation will file yet another lawsuit when the CD is finished.
I declare under penalty of perjury that the foregoing statements are true to the best of my knowledge.
Dated this 25th day of October, 1996
Kristen Maaherra
Last Updated April 9, 1997 by Kristen Maaherra