Summary Judgment -- Copyright
Since Judge Urbom held that the Urantia Papers are in the public domain, we asked the Colorado court to affirm Judge Urbom's ruling.
October 10, 1996
DEFENDANT KRISTEN MAAHERRA'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT V (COPYRIGHT INFRINGEMENT)
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendant, Kristen
Maaherra ("Maaherra") through her attorneys, respectfully files this Motion for Partial
Summary Judgment, granting Maaherra judgment in her favor on Count V of the Complaint
(for copyright infringement).
As explained in the accompanying brief, Maaherra has already been engaged in years of
litigation against the Foundation in a case that the Foundation brought against her for infringing
the very same work involved in the present case. Maaherra prevailed in the copyright litigation,
and final judgment was awarded to her the merits of the case. That judgment is in full force and
effect; it has neither been stayed, nor reversed on appeal.
Therefore, the Foundation's claim is res judicata, and Maaherra is entitled to partial summary judgment from this Court dismissing the claim of copyright infringement against her.
The grounds for this Motion are further set forth in the accompanying brief which is filed
herewith.
Peter A. Jaffe
Joseph D. Lewis
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DEFENDANT KRISTEN MAAHERRA'S BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT V (COPYRIGHT INFRINGEMENT)
Defendant KRISTEN MAAHERRA ("Maaherra") submits the following brief in support of her motion for partial summary judgment as to Count V (copyright infringement) and, for the following reasons, asks the court to grant partial summary judgment in her favor on Count V of the Complaint. Maaherra requests such relief because, as the Urantia Foundation's ("Foundation") own pleading states, the United States District Court for the District of Arizona has declared copyright in the Urantia Book invalid. (Complaint at paragraph 12.)
I. STATEMENT OF FACTS
The Foundation initially brought suit against Maaherra for copyright infringement, trademark infringement, and other related causes of action on February 27, 1991 in a case captioned Urantia Foundation v. Maaherra, Civ. 91-0325. On February 17, 1995, the district court (Urbom, J.) granted Maaherra's motion for summary judgment n a decision reported at
895 F. Supp. 1347 (D. Ariz. 1995). (See Memorandum and Order dated February 17, 1995, Lewis Dec., Exhibit 1.) The court held that the renewal copyright in the Urantia Book was invalid. On October 25, 1995, the District Court for the District of Arizona entered an Amended Judgment which granted judgment for Maaherra on the claim for copyright infringement. The Amended Judgment also dismissed with prejudice, the claims and counterclaims of both parties relating to trademark issues. (See Amended Judgment, Lewis Dec., Exhibit 2.) After the district court ruled that the Foundation's purported renewal copyright in the Urantia Book was invalid, the Foundation sought to stay the effect of that judgment. On September 29, 1995, the district court denied the Foundation's motion to continue the preliminary injunction then in effect and to stay the declaratory judgment. (See Memorandum and Order dated September 29, 1995, Lewis Dec., E. exhibit 3.) Judge Urbom noted that the Foundation's request for an injunction would have eviscerated his decision and rendered its conclusion meaningless. Id.
The Foundation appealed the district court's decision to the United States Court of Appeals for the Ninth Circuit (Footnote 1: The appeal is styled Urantia Foundation v. Maaherra, 95-17093. The appeal has not yet been scheduled for oral argument.) ** and applied to the Court of Appeals for the Ninth Circuit for a stay of the district court's judgment. The Court of Appeals denied that request. (See Order of December 8, 1995, Lewis Dec., Exhibit 4.) Therefore, the district court's judgment still has full force and effect.
II. INTRODUCTION
Maaherra makes this motion with the belief that the Foundation has brought suit against her for the primary purpose of harassing her. Because she believes that the Foundation will continue to initiate lawsuits against her and others (Footnote 2: In addition to adding Maaherra's husband in the present action, the Foundation has recently brought another civil action in the U.S. District Court for the Northern District of Illinois against three non-profit organizations involved in the publication and distribution of their own edition of the Urantia Book. See Urantia Foundation v. Fifth Epochal Fellowship Corporation Uversa Press and Jesusonian Foundation, Civil Action No. 96C-5105, N.D. Ill. End of footnote 2.) who attempt to distribute materials concerning the Urantia Book, she has sought from the court in the District of Arizona, the protection of injunctive relief against all further litigation of the same copyright claim. Maaherra requests that her motion for partial summary judgment in this case be granted nonetheless because she is fully entitled under the law to have this new case against her summarily dismissed.
III. ARGUMENT AND CITATION OF AUTHORITY
A. Maaherra is Entitled to Partial Summary Judgment in Her Favor on Count V (Copyright Infringement)
The plaintiff URANTIA FOUNDATION ("Foundation") claims copyright infringement and requests monetary damages, attorney's fees and permanent injunctive relief. This claim should be denied, and Maaherra motion for partial summary judgment should be granted based on the affirmative defense of res judicata.
Summary judgment is available in copyright infringement cases, as in other cases, when "viewing the facts and reasonable inferences in the light most favorable to the non-moving party, 'there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law."' Urantia Foundation v. Maaherra, 895 ] P. Supp. 1347, 1349 (D. Ariz. 1995) (quoting Fed.R.Civ.P. 56 (c) and citing Calnetics Corp. v. Volkswagen of Am.' Inc., 532 F.2d 674, 683 n. 11 (9th Cir.), cert. denied, 429 U.S. 940 (1976); Clough v. Rush, 959 F.2d 182, 186 (lOth Cir. 1992). See also 1B James W. Moore, et. al., Moore's Federal Practice paragraph 0.408[1] p. III-106-107 (2d Ed. 1996); 6 Moore's part 2 paragraph 56.17[14] p. 56438 (2d Ed. 1996).
There are no genuine issues of material fact in this case. The Foundation alleges that Maaherra has infringed the renewal copyright it claims in the Urantia Book which it originally registered in its name on October 12, 1955, under entry no. A: 216385 9 and renewed January 3, 1983, under entry no. RE: 152-055. The Foundation made an earlier identical claim against Maaherra for the same work in the Arizona case. The District Court for the District of Arizona has ruled in the earlier case that the renewal copyright in the Urantia Book was invalid. (See Exhibit 1 and 3.) That decision has not been vacated or reversed and m must, therefore, be given full force and effect. Because there exists a prior decision that denied the Foundation's claim of copyright infringement based on invalidity, there are no factual d Disputes for this Court to determine. Therefore, the Foundation's present claim of copyright infringement is ripe for determination by summary judgment.
Upon a finding that there are no genuine issues of material fact, summary judgment must be granted to the party entitled to judgment as a matter of law. See 6 Moore's part 2 at paragraph 56.17[14] p. 56-439. Because the Foundation's claim of copyright infringement was rejected by a court with co-equal jurisdiction to hear the same matter, this Court must respect that decision and grant Maaherra's motion for partial summary judgment because she is entitled to such judgment as a matter of law. Therefore, the court should grant partial summary judgment and rule in favor of Maaherra on Count V, copyright infringement.
B. The Affirmative Defense of Res Judicata Applies Here
Res judicata is available as an affirmative defense when there is an unmodified decision of a court of competent jurisdiction that has rendered a full and final judgment conclusive as to all matters actually litigated and as to any issue, claim or defense that might have been raised and the same cause of action is raised in a second action between the same parties as the first. See Southern Pacific R.R. Co. v. United States, 168 U.S. 1, 48 (1897); Happy Elevator No. 2 v. Osage Const. Co., 209 F.2d 459, 461 (loth Cir. 1954); Hildebrand v. Dart Industries. Inc., 640 F.2d 289, 291 (10th Cir. 1981) (citing Lindane v. Oklahoma City, 340 P.2d 221, 223 (Okra. 1959). While making a determination that there is a unity of parties and causes of action is not always an easy task for a court to do, the present case stands as the paradigm of when res judicata applies. Making such a determination may become difficult when, for example, a plaintiff adds a new cause of action to a previously decided claim, the same claim is brought in both state court and federal court, or when the second suit names a privy of one of the original parties specifically named in the former suit. Here, it is clear that the parties, the cause of action and the work allegedly infringed are all identical.
The United States District Court for the District of Arizona was a court of competent jurisdiction to hear this case because it was a case arising under the Copyright Act. Pursuant to 17 U.S.C. 101, et seq. and 28 U.S.C. 1338 original jurisdiction for copyright cases lies with the federal district courts. See generally 3 Nimmer on Copyright I, 12.01[A] (1996).
The original term of copyright having expired, the Foundation claims that Maaherra has infringed on its claim for the renewal copyright in the Urantia Book, renewal registration No. RE: 152-055, by copying and distributing free copies of the book. I n its former suit against Maaherra, the Foundation also claimed copyright infringement base d on its allegation that Maaherra was giving away copies of the same book. Both claims require that the Foundation prove the same elements. (Footnote 3: Even if this Court were to find that the Foundation does have two different causes of action against Maaherra, she is still entitled to summary judgment in her favor based on the related principle of collateral estoppel because the outcome of the second suit depends on a question already directly determined by a court of competent jurisdiction. See Southern Pacific R.R. Co., 168 U.S. at 4849 ("[E]ven if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.'') See also Blonder-Tongue v. University Foundation, 402 U.S. 313 (1971).)
In the earlier decision by the District Courts for the District of Arizona there was a full and final determination that the Foundation's copyright in the Urantia Book was invalid. (See Exhibits 1-3). Those Exhibits demonstrate the identity of the parties and the causes of action necessary for a determination that Count V is barred by res judicata.
Maaherra does not contend that the doctrine of res judicata (Footnote 4: However, the related doctrine of collateral estoppel would seemingly provide Mr. Schaveland with a complete defense to the claim of copyright infringement.) applies as to the second Defendant in this case, Eric Schaveland, but the fact that Mr. Schaveland is also named as a Defendant does not preclude partial summary judgment for Maaherra, based on a res judicata defense.
The Foundation makes note in its Complaint that the district court invalidated The Urantia Book copyright on summary judgment and without a trial on the merits. (See Pl. Complaint par. 12). If by noting this fact the Foundation is questioning the effect and scope of the prior judgment, then it has misread the requirements for res judicata judgment on the merits does not require judgment based on a trial. The doctrine of res judicata may also be based on a judgment issued on a motion for summary judgment. See 1B Moore's paragraph 0.409[1.2] pp. m-128-129 (2d Ed. 1996).
The Foundation accurately alleges that it has appealed the district court decision and that the appeal is still pending. (See Pl. Complaint par. 13). This fact also "does not suspend the operation of an otherwise final judgment as res judicata or collateral estoppel." 1B Moore's paragraph 0.416[3.2] p. III-322 (2d Ed. 1996). The finality of the prior judgment continues and is entitled to res judicata effect until reversed, vacated or modified. Id. at III-324. See Heingold Ho: Mkt.. Inc. v. McCoy, 817 F.2d 81 (loth Cir. 1987) (state court judgment pending appeal given res judicata effect in federal court as long as unreversed). The Foundation's pending appeal in the Ninth Circuit notwithstanding, there has been a full and final determination, unmodified and not vacated or reversed, that the renewal copyright in the Urantia Book is invalid. As the opportunity for anyone to claim the renewal copyright in the Urantia Book has long expired, the copyright to the Urantia Book is now in the public domain and belongs to no one. Because the Foundation must prove ownership of a valid copyright to succeed in its present case against Maaherra, and it cannot, Maaherra is entitled to partial summary judgment in her favor. Having failed in several attempts to avoid the effect of the prior judgment, the Foundation cannot now avoid it by filing a new lawsuit in a different forum.
IV. CONCLUSION
For all the foregoing reasons, Maaherra asks the Court to grant her motion for partial summary judgment in her favor as to Count V of the Complaint an deny the Foundation's requests for preliminary and permanent injunction from publishing the text of the Urantia Book.
Respectfully submitted,
Jaffe and Asher
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Defendant KM's Amended Brief
DEFENDANT KRISTEN MAAHERRA'S AMENDED BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT V (COPYRIGHT INFRINGEMENT)
Defendant KRISTEN MAAHERRA ("Maaherra") submits the following amended brief in support of her motion for partial summary judgment as to Count V (copyright infringement). This amended brief is being submitted in compliance with this Court's Minute order of October 22, 1996 (after the filing of the original brief) which implemented the Court's hearing, conference and trial procedures. This amended brief does not differ substantively from the original brief. For the following reasons, asks the court to grant partial summary judgment in her favor on Count V of the Complaint. Maaherra requests such relief because, as the Urantia Foundation's ("Foundation") own pleading states, the United States District Court for the District of Arizona has declared copyright in The Urantia Book invalid. (Complaint at 12.)
I. STATEMENT OF UNDISPUTED MATERIAL FACTS
1. The Foundation brought suit against Maaherra for copyright infringement, trademark infringement, and other related causes of action on February 27, 1991 in a case captioned Urantia Foundation v. Maaherra, Civ. 91-0325. (See Memorandum and order dated September 29, 1995, Lewis Dec., Exhibit 3 at p. 1.)
2. On February 17, 1995, the district court (Urbom, J.) granted Maaherra's motion for summary judgment in a decision reported at 895 F. Supp. 1347 (D. Ariz. 1995). (See Memorandum and order dated February 17, 1995, Lewis Dec., Exhibit 1.)
3. The court held that the renewal copyright in The Urantia Book was invalid. (Id. at p. 12, Complaint at 12.)
4. On October 25, 1995, the District Court for the District of Arizona entered an Amended Judgment which granted judgment for Maaherra on the claim for copyright infringement. The Amended Judgment also dismissed with prejudice, the claims and counterclaims of both parties relating to trademark issues. (See Amended Judgment, Lewis Dec., Exhibit 2.)
5. After the district court ruled that the Foundation's purported renewal copyright in The Urantia Book was invalid, the Foundation sought to stay the effect of that judgment. On September 29, 1995, the district court denied the Foundation's motion to continue the preliminary injunction then in effect and to stay the declaratory judgment. (See Memorandum and Order dated September 29, 1995, Lewis Dec., Exhibit 3.)
6. Judge Urbom noted that the Foundation's request for an injunction would have eviscerated his decision and rendered its conclusion meaningless. Id.
7. The Foundation appealed the district court's decision to the United States Court of Appeals for the Ninth Circuit (Footnote 1: The appeal is styled Urantia Foundation v. Maaherra, 95-17093. The appeal has not yet been scheduled for oral argument.) and applied to the Court of Appeals for the Ninth Circuit for a stay of the district court's judgment. The Court of Appeals denied that request. (See order of December 8, 1995, Lewis Dec., Exhibit 4.)
II. INTRODUCTION
Maaherra makes this motion with the belief that the Foundation has brought suit against her for the primary purpose of harassing her. Because she believes that the Foundation will continue to initiate lawsuits against her and others (Footnote 2: In addition to adding Maaherra's husband in the present action, the Foundation has recently brought another civil action in the U.S. District Court for the Northern District of Illinois against three non-profit organizations involved in the publication and distribution of their own edition of The Urantia Book. See Urantia Foundation v. Fifth Epochal Fellowship Corporation. Uversa Press and Jesusonian Foundation, Civil Action No. 96C-5105, N.D. Ill. End of Footnote 2.) who attempt to distribute materials concerning The Urantia Book, she has sought from the court in the District of Arizona, the protection of injunctive relief against all further litigation of the same copyright claim. Maaherra requests that her motion for partial summary judgment in this case be granted nonetheless because she is fully entitled under the law to have this new case against her summarily dismissed.
III. ARGUMENT AND CITATION OF AUTHORITY
A. Maaherra is Entitled to Partial Summary Judgment in Her Favor on Count V (Copyright Infringement)
The plaintiff URANTIA FOUNDATION ("Foundation") claims copyright infringement and requests monetary damages, attorney's fees and permanent injunctive relief. This claim should be denied, and Maaherra's motion for partial summary judgment should be granted based on the affirmative defense of res judicata.
Summary judgment is available in copyright infringement cases, as in other cases, when "viewing the facts and reasonable inferences in the light most favorable to the non-moving party, 'there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law. ' " Urantia Foundation v. Maaherra, 895 F. Supp. 1347, 1349 (D. Ariz. 1995) (quoting Fed.R.Civ.P. 56 (c) and citing Calnetics Corp. v. Volkswagen of Am.. , 532 F.2d 674, 683 n. 11 (9th Cir.), cert. denied, 429 U.S. 940 (1976); Clough v. Rush, 959 F.2d 182, 186 (10th Cir. 1992). See also 1B James W. Moore, et. al., Moore's Federal Practice paragraph 0.408[1] p. III-106-107 (2d Ed. 1996); 6 Moore's part 2 paragraph 56.17[14] p. 56-438 (2d Ed. 1996).
There are no genuine issues of material fact in this case. The Foundation alleges that Maaherra has infringed the renewal copyright it claims in The Urantia Book which it originally registered in its name on October 12, 1955, under entry no. A: 216389 and renewed January 3, 1983, under entry no. RE: 152-055. The Foundation made an earlier identical claim against Maaherra for the same work in the Arizona case. The District Court for the District of Arizona has ruled in the earlier case that the renewal copyright in The Urantia Book was invalid. (See Exhibit 1 and 3.) That decision has not been vacated or reversed and must, therefore, be given full force and effect. Because there exists a prior decision that denied the Foundation's claim of copyright infringement based on invalidity, there are no factual disputes for this Court to determine. Therefore, the Foundation's present claim of copyright infringement is ripe for determination by summary judgment.
Upon a finding there are no genuine issues of material fact, summary judgment must be granted to the party entitled to judgment as a matter of law. See 6 Moore's part 2 at 56.17[14] p. 56-439 Because the Foundation's claim of copyright infringement was rejected by a court with co-equal jurisdiction to hear the same matter, this Court must respect that decision and grant Maaherra's motion for partial summary judgment because she is entitled to such judgment as a matter of law. Therefore, the court should grant partial summary judgment and rule in favor of Maaherra on Count V, copyright infringement.
B. The Affirmative Defense of Res Judicata Applies Here
Res judicata is available as an affirmative defense when there is an unmodified decision of a court of competent jurisdiction that has rendered a full and final judgment conclusive as to all matters actually litigated and as to any issue, claim or defense that might have been raised and the same cause of action is raised in a second action between the same parties as the first. See Southern Pacific R.R. Co. v. United States, 168 U.S. 1, 48 (1897); Happy Elevator No. 2 v. Osage Const. Co., 209 F.2d 459, 461 (10th Cir. 1954); Hlldebrand v. Dart Industries. Inc., 640 F.2d 289, 291 (10th Cir. 1981) (citing Lindauer v. Oklahoma City, 340 P.2d 221, 223 (okra. 1959). While making a determination that there is a unity of parties and causes of action is not always an easy task for a court to do, the present case stands as the paradigm of when res judicata applies. Making such a determination may become difficult when, for example, a plaintiff adds a new cause of action to a previously decided claim, the same claim is brought in both state court and federal court, or when the second suit names a privy of one of the original parties specifically named in the former suit. Here, it is clear that the parties, the cause of action and the work allegedly infringed are all identical.
The United States District Court for the District of Arizona was a court of competent jurisdiction to hear this case because it was a case arising under the Copyright Act. Pursuant to 17 U.S.C. 101, et seq. and 28 U.S.C. 1338 original jurisdiction for copyright cases lies with the federal district courts. See generally 3 Nimmer on Copyright, 12.01[A] (1996).
The original term of copyright having expired, the Foundation claims that Maaherra has infringed on its claim for the renewal copyright in The Urantia Book, renewal registration No. RE: 152-055, by copying and distributing free copies of the book. In its former suit against Maaherra, the Foundation also claimed copyright infringement based on its allegation that Maaherra was giving away copies of the same book. Both claims require that the Foundation prove the same elements. (Footnote 3: Even if this Court were to find that the Foundation does have two different causes of action against Maaherra, she is still entitled to summary judgment in her favor based on the related principle of collateral estoppel because the outcome of the second suit depends on a question already directly determined by a court of competent jurisdiction. See Southern Pacific R.R. Co., 168 U.S. at 4849 ("[E]ven if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.'') See also Blonder-Tongue v. University Foundation, 402 U.S. 313 (1971). End of Footnote 3.) In the earlier decision by the District Court for the District of Arizona there was a full and final determination that the Foundation's copyright in The Urantia Book was invalid. (See Exhibits 1-3). Those Exhibits demonstrate the identity of the parties and the causes of action necessary for a determination that Count V is barred by res judicata. Maaherra does not contend that the doctrine of res judicata (Footnote 4: However, the related doctrine of collateral estoppel would seemingly provide Mr. Schaveland with a complete defense to the claim of copyright infringement.) applies as to the second Defendant in this case, Eric Schaveland, but the fact that Mr. Schaveland is also named as a Defendant does not preclude partial summary judgment for Maaherra, based on a res judicata defense.
The Foundation makes note in its Complaint that the district court invalidated The Urantia Book copyright on summary judgment and without a trial on the merits. (See Pl. Complaint par. 12). If by noting this fact the Foundation is questioning the effect and scope of the prior judgment, then it has misread the requirements for res judicata. Judgment on the merits does not require judgment based on a trial. The doctrine of res judicata may also be based on a judgment issued on a motion for summary judgment. See 1B Moore's 0.409[1.2] pp. III-128-129 (2d Ed. 1996).
The Foundation accurately alleges that it has appealed the district court decision and that the appeal is still pending. (See Pl. Complaint par. 13). This fact also "does not suspend the operation of an otherwise final judgment as res judicata or collateral estoppel." 1B Moore's 0.416[3.2] p. III-322 (2d Ed. 1996). The finality of the prior judgment continues and is entitled to res judicata effect until reversed, vacated or modified. Id. at III-324. See Heingold Hog Mkt.. Inc. v. McCoy, 817 F.2d 81 (10th Cir. 1987) (state court judgment pending appeal given res judicata effect in federal court as long as unreversed). The Foundation's pending appeal in the Ninth Circuit notwithstanding, there has been a full and final determination, unmodified and not vacated or reversed, that the renewal copyright in The Urantia Book is invalid. As the opportunity for anyone to claim the renewal copyright in The Urantia Book has long expired, the copyright to The Urantia Book is now in the public domain and belongs to no one. Because the Foundation must prove ownership of a valid copyright to succeed in its present case against Maaherra, and it cannot, Maaherra is entitled to partial summary judgment in her favor. Having failed in several attempts to avoid the effect of the prior judgment, the Foundation cannot now avoid it by filing a new lawsuit in a different forum.
IV. CONCLUSION
For all the foregoing reasons, Maaherra asks the Court to grant her motion for partial summary judgment in her favor as to Count V of the Complaint and deny the Foundation's requests for preliminary and permanent injunction from publishing the text of The Urantia Book. Respectfully submitted,
Joseph D. Lewis
Attorneys for Defendant KM
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October 20, 1996
Defendant ES's Motion & Brief for Summary Judgment as to Copyright.
DEFENDANT ERIC SCHAVELAND'S MOTION FOR PARTIAL SUMMARY JUDGMENT
AS TO COUNT V (COPYRIGHT INFRINGEMENT)
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendant Eric Schaveland respectfully files this Motion for Partial Summary Judgment, granting Defendant Schaveland judgment in his favor on Count V (copyright infringement) of Urantia Foundation's Complaint.
Defendant Eric Schaveland would like to direct the attention of this Court to Honorable Senior Federal Judge Warren K. Urbom's Judgment placing the Urantia Papers in the public domain. That Judgment is in full force and effect; it has neither been stayed, nor reversed on appeal.
Therefore, collateral estoppel precludes the Foundation's claim, and Defendant Schaveland is entitled to partial summary judgment from this Court dismissing the claim of copyright infringement against him.
A supporting brief is filed with this motion .
RESPECTFULLY SUBMITTED this 20th day of October, 1996.
Eric Schaveland
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Defendant Schaveland's Brief in Support of his Motion for
Partial Summary Judgment as to Count V (copyright infringement)
I, Eric Schaveland, submit the following brief in support of my motion for partial summary judgment as to Count V (copyright infringement) and ask the Court to grant partial summary judgment in my favor on Count V of the Urantia Foundation's Complaint. I request such relief because the United States District Court for the District of Arizona has declared Plaintiff Foundation's claim to copyright in the Urantia Book to be invalid.
1. The United States District Court for the District of Arizona was a court of competent jurisdiction to hear this case because it was a case arising under the Copyright Act. Pursuant to 17 U.S.C. 101, et seq. and 28 U.S.C. 1338 original jurisdiction for copyright cases lies with the federal district courts. See 3 Nimmer on Copyright I, 12.01[A] (1996).
2. In the decision by the District Court for the District of Arizona there was a full and final determination that the Foundation's renewal copyright in the Urantia Book was invalid.
3. The Foundation accurately alleges that it has appealed the District Court decision and that the appeal is still pending. (See Plaintiff Complaint par. 13). This fact also "does not suspend the operation of an otherwise final judgment as res judicata or collateral estoppel." 1B Moore's paragraph 0.416[3.2] p. III-322 (2d Ed. 1996). The Foundation's pending appeal in the Ninth Circuit notwithstanding, there has been a full and final determination, unmodified and not vacated or reversed, that the renewal copyright in the Urantia Book is invalid. As the opportunity for anyone to claim the renewal copyright in the Urantia Book has long expired, the copyright to the Urantia Book is now in the public domain and belongs to no one. Because the Foundation must prove ownership of a valid copyright to succeed in its present case against Defendant Schaveland, and it cannot, I am entitled to partial summary judgment in my favor.
4. Plaintiff Foundation acknowledges in its brief in support of its motion for partial stay as to Count V page 9-footnote 6, that "the pendency of an appeal does not ordinarily suspend the operation of an otherwise final judgment as res judicata or collateral estoppel." Plaintiff's argument against summary judgment in favor of Defendant on Count V seems to be if they win an appeal, this court might have to vacate its ruling. This "judicial economy" argument is disingenuous and self-serving. If Plaintiff was remotely interested in judicial economy, Plaintiff would honor the Federal Appeals Court decision denying a Stay of the Final Ruling in Urantia Foundation v. Maaherra.
5. Plaintiff is apparently unwilling to abide by the "ordinary" rules of appeal. Plaintiff thinks nothing of asking that my rights to justice be suspended for years on the off chance that they might win an appeal. Plaintiff thought nothing of asking the Federal Appeals Court for a continuation of a four and a half year injunction against Kristen Maaherra even after she had proved to the Court that Plaintiff Foundation's copyright was invalid. Such callous disregard for other people's legal rights and basic human dignity should not be tolerated by this Court.
6. In fact, what Plaintiff has failed to acknowledge is that Plaintiff brought this lawsuit in an attempt to delay justice and thereby deny justice on this copyright issue, rather than to seek damages or lawyer fees on the remote possibility of Plaintiff winning an appeal. Plaintiff knows of Defendants Maaherra and Schaveland's CD publishing project -- a project involving making the Urantia Papers as well as related study aids available to the public on a CD. We had been working on this project for about 9 months with considerable investment of time and materials, and had just given away 60 Beta test copies of this CD, when Plaintiff Foundation's Complaint effectively stopped our progress. It is Defendant Schaveland's belief that Plaintiff is engaged in a strategy to undermine this publishing project (as well as any other Urantia related projects Defendants may undertake); hence this ridiculous attempt to claim "judicial economy" as a justification for avoiding an unfavorable ruling in another Court.
CONCLUSION
Therefore, Defendant Schaveland asks the Court to grant this motion for partial summary judgment in my favor as to Count V of the Complaint and to deny the Foundation's requests for preliminary and permanent injunction from publishing the text of the Urantia Papers.
RESPECTFULLY SUBMITTED this 20th day of October, 1996.
Eric Schaveland
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November 26, 1996
Plaintiff Foundation's Brief in Opposition to Defendants' Motions for Partial Summary Judgment as to Count V (Copyright Infringement).
PLAINTIFF URANTIA FOUNDATION'S BRIEF IN OPPOSITION TO DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT V (COPYRIGHT INFRINGEMENT)
Pursuant to D.C.COLO.LR 7.1F, Plaintiff URANTIA Foundation (Foundation) submits the following brief in opposition to the defendants' motions (Footnote 1: Both defendants have filed similar motions based solely on the preclusive effect of the Arizona district court's final judgment in a previous action captioned URANTIA Foundation v. Maaherra, in the United States District Court for the District of Arizona, Case No. 91-0325, 895 F. Supp. 1347 (D. Ariz. 1995). The Arizona district court judgment currently is the subject of an appeal before the Ninth Circuit, case no. 95-17093. Because the defendants' motions are based on identical grounds, the Foundation submits a single brief in opposition to both motions. End of Footnote 1.) for partial summary judgment as to Count V (copyright Infringement):
I. INTRODUCTION
The defendants' motions for partial summary judgment on the Foundation's copyright infringement claim (Count V), should be denied for the following reasons, which are more fully explained below:
(1) Before the defendants filed their motions for partial summary judgment, the Foundation already had filed its motion for partial stay, (Footnote 2: As explained in the Foundation's brief in support of its motion for partial stay, the Foundation's complaint only pleads Count V as a contingent copyright infringement claim. The Foundation's copyright claim depends on the outcome in the pending Ninth Circuit appeal, and requests a stay of Count V pending the Ninth Circuit's decision. The Foundation originally had planned to file its formal stay motion immediately after it filed the complaint but, in light of the defendants' request for an extension of time to answer, the Foundation delayed the filing of its stay motion until October 7, 1996 (which was before the defendants answered the complaint, but after defendant Kristen Maaherra filed a "motion for protective injunction" with the Arizona district court whose judgment is on appeal before the Ninth Circuit). End of Footnote 2.) which clearly explains that the Foundation has no intention of actively pursuing a copyright claim as a result of the defendants' activities on the Internet unless, and until, the Ninth Circuit reverses the Arizona district court's declaratory judgment. The defendants are well aware of the prophylactic reasons why the Foundation includes a contingent copyright claim in its complaint, yet they refuse to simply agree that the Foundation's copyright claim should be placed on hold until the pending Ninth Circuit case is resolved. (Footnote 3: Oral argument is scheduled before the Ninth Circuit on January 14, 1997. Wharton Declaration, Exhibit A. End of Footnote 3).
(2) The Foundation has expressed to defendants (through numerous conversations with counsel for defendant Kristen Maaherra) its willingness to voluntarily dismiss its copyright count without prejudice to the Foundation's right to re-assert its copyright claim if it prevails in the Ninth Circuit and its copyright is reinstated, and pursuant to the defendants' agreement that the pendency of the Foundation's trademark claims in this case will not be alleged as the basis for a merger and bar or waiver defense in a future copyright suit.
(3) Before defendant Kristen Maaherra decided to file her motion for summary judgment, she filed a "motion for protective in junction" which asks the Arizona district court to enjoin the Foundation from doing what it has no intention of doing -- actively pursuing a copyright claim in this case until the Ninth Circuit reinstates its copyright. (Footnote 4: Copies of the brief and declarations filed by defendant Kristen Maaherra in support of her "motion for protective in junction," and the Foundation's opposing brief and declarations are attached to the Declaration of Scott Wharton, filed herewith, as Exhibits B and C respectively. End of Footnote 4). In her Arizona motion, defendant Kristen Maaherra seeks essentially the same relief as the relief sought by the Foundation's motion for partial stay -- an order placing the Foundation's copyright claim on hold pending the Ninth Circuit's decision. (Footnote 5: As explained in the Foundation's brief in support of its motion for partial stay, in the event the Foundation loses its appeal, it will no longer possess any basis for claiming ownership of the copyright in The Urantia Book, and it will dismiss its copyright claim against the defendants as a result of their publication of the text of The URANTIA Book on the Internet. Moreover, with respect to defendant Kristen Maaherra, if the Foundation prevails in the Ninth Circuit and the Arizona case is remanded for trial, it may be possible to amend the Arizona complaint to resolve the Foundation's Internet copyright claims against defendant Maaherra in that action. Thus, the Ninth Circuit's decision will possibly eliminate Count V in this action or greatly reduce the scope of the issues raised by Count V. End of Footnote 5).
For these reasons, which are discussed more fully below, the Court should deny the defendants' motions for partial summary judgment as to the Foundation's contingent copyright infringement claim. Instead of entering a premature partial summary judgment on the merits of the Foundation's contingent copyright claim, the Court should either: (1) grant the Foundation's stay motion and place Count V on hold until the Ninth Circuit decides the pending appeal, or (2) dismiss Count V without prejudice to the Foundation's right to reassert a copyright claim if its pending appeal is successful, and on the condition that the pendency of the Foundation's trademark claims in this case shall not be asserted by the defendants as a defense in any future copyright suit arising out of the defendants actions on the Internet.
II. RESPONSE TO STATEMENT OF UNDISPUTED MATERIAL FACTS
In accordance with the Court's Hearing, Conference, and Trial Procedures, and D.C.COLO. LR 7.1F, the Foundation responds to the individually-numbered paragraphs of defendant Kristen Maaherra's Statement of Undisputed Material Facts as follows:
1. The Foundation admits the asserted material facts set forth in paragraph 1.
2. The Foundation admits the asserted material facts set forth in paragraph 2.
3. The Foundation admits the asserted material facts set forth in paragraph 3. The Foundation's complaint and its stay motion expressly state that the Foundation's renewal copyright was declared invalid by the United States District Court for the District of Arizona in a decision reported at 895 F. Supp. 1347 (D. Ariz. 1995). The Foundation's complaint only asserts a contingent copyright claim, and asks the Court to "stay Count V [copyright infringement] of the Complaint pending the decision of the United States Court of Appeals for the Ninth Circuit . . . and, in the event that decision holds that the Foundation's renewal copyright in The URANTIA Book is valid, enter judgment in favor of the Foundations...." (Complaint, 12-13, 50)
4. The Foundation admits the asserted material facts set forth in paragraph 4. In further response to the asserted material facts set forth in paragraph 4, the Foundation states that its Arizona trademark infringement claims against defendant Kristen Maaherra were dismissed on the basis of the settlement agreement attached to the Foundation's complaint as Exhibit K. on February 27, 1995, (and in previous rulings on the Foundation's motions for partial summary judgment on defendant Maaherra's affirmative defenses challenging the validity of the Foundation's marks) the Arizona district court upheld the validity of the Foundation's marks, but denied the Foundation's motion for summary judgment on the issue of Kristen Maaherra's liability for trademark infringement. The Arizona district court held that questions of fact regarding the "likelihood of confusion" required a trial of the issue of Kristen Maaherra's liability for trademark infringement. URANTIA Foundation v. Maaherra, 89S F. Supp. 1338, (D. Ariz. 1995). The parties settled the Foundation's trademark claim before trial, and the trademark claims were dismissed on that basis. (Complaint, 29-31, Exhibit K.)
5. The Foundation admits the asserted material facts set forth in paragraph 5. The Foundation further states that the facts asserted in paragraph 5 are immaterial for purposes of the defendants' motions for partial summary judgment.
6. The Foundation admits the asserted material facts set forth in paragraph 6. The Foundation further states that the facts asserted in paragraph 6 are immaterial for purposes of the defendants' motions for partial summary judgment.
7. The Foundation admits the asserted material facts set fords in paragraph 7. The Foundation further states that the facts asserted in paragraph 7 are immaterial for purposes of the defendants' motions for partial summary judgment.
III. STATEMENT OF ADDITIONAL FACTS
In accordance with the Court's Hearing, Conference, and Trial Procedures, and D.C.COLO. LR 7.1F, the Foundation submits the following Statement of Additional Facts in response to the defendants' motions:
1. On November 1, 1995, the Foundation filed a timely notice of appeal frown the Arizona district court's judgment which declares the Foundation's copyright to be invalid. The only issue on appear is whether the Arizona district court erred when it declared the Foundation's renewal copyright to be invalid on summary judgment. The Foundation's appeal, which is captioned URANTIA Foundation v. Maaherra, Case No. 95-17093, has been fully briefed and oral argument has been scheduled for January 14, 1997. (Declaration of Scott Wharton, Exhibit A, January Calendar for the United States Court of Appeals - 9th Circuit).
2. The Foundation's complaint arises out of the defendants' activities on the Internet, which occurred after the Arizona district court entered its final judgment. The copyright infringement claim asserted in this case does not present the same cause of action or claims decided by the Arizona district court. (Complaint, 14-28.)
3. The Foundation has clearly expressed its intention -- as stated in the complaint, its motion to stay the copyright claim pending the Ninth Circuit's decision, and in numerous discussions between counsel -- to refrain from actively pursuing a copyright claim in this case until and unless the Ninth Circuit reverses the judgment of the Arizona district court. The Foundation also has expressed its willingness to consent to the dismissal of Count V without prejudice to its right to re-assert a copyright infringement claim based on the defendant's activities on the Internet in the event the Ninth Circuit reverses the Arizona district court's declaratory judgment. (SeeArizona Declarations of Scott A. Wharton and Patricia S. Mundelius, filed herewith as Exhibits B and C to Wharton Declaration).
4. The Foundation filed this action as a result of the defendants' unauthorized use of the Foundation's marks on the Internet, and not to "harass or "intimidate" the defendants. (SeeArizona Declaration of Patricia S. Mundelius, Exhibit C to Wharton Declaration).
5. As clearly stated in the Foundation's motion for a partial stay, the only reason why the Foundation's complaint asserts a copyright infringement claim is to prevent a possible merger and bar or waiver defense because the Foundation's trademark claims in this case arise from the same facts as its copyright claim. (See Motion for Partial Stay, filed on October 7, 1996).
6. Counsel for the Foundation conferred with counsel for Kristen Maaherra before the Foundation filed its stay motion in an attempt to resolve the issues raised by the Foundation's stay motion. Counsel for the Foundation suggested that the parties agree to the entry of an order staying all proceedings on the Foundation's copyright claim pending the Ninth Circuit's decision, or that the parties agree to allow the Foundation to voluntarily dismiss its copyright claim without prejudice, on the condition that the defendants specifically agree that, in any future copyright case rising from the defendants' activities on the Internet, the defendants will not assert a merger and bar or waiver defense based on the pendency of the Colorado case. (Arizona Declaration of Scott A. Wharton, Wharton Declaration, Exhibit C, 4-11).
7. On September 27, 1996, Kristen Maaherra filed her "motion for protective injunction" which asks the Arizona district court to enjoin the Foundation from doing what it has no intention of doing -- actively pursuing a copyright claim in this Court. Kristen Maaherra 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 by the Ninth Circuit. Moreover, before Kristen Maaherra filed her Motion for protective injunctions with the Arizona district court, her counsel was informed on several occasions that the Foundation has no desire to actively pursue a copyright claim in this case until (and unless) the Ninth Circuit reverses the Arizona district court's declaratory injunction. 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. (Arizona Declarations of Scott A. Wharton and Patricia S. Mundelius, Exhibits B and C to Wharton Declaration).
IV. ARGUMENT AND CITATION OF AUTHORITIES
A. The Court Should Deny The Defendants' Motions For Partial Summary Judgment And Grant The Foundation's Stay Motion.
The Foundation brought this action as a result of the defendants' actions on the Internet, and the defendants' failure to discontinue their unauthorized use of the Foundation's marks in connection with their Internet sites. Complaint, 14-28. All of the Foundation's claims in this case, including its contingent claim for copyright infringement, arise out of the same facts; namely, the defendants' activities on the Internet. Thus, to prevent the risk of a possible merger and bar or waiver defense in response to a future copyright claim based on the defendants' activities on the Internet, the Foundation has no choice but to assert a contingent copyright infringement claim in this case.
As explained in the Foundation's stay brief, 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 infringement case, the defendants undoubtedly would argue that the Foundation's copyright claim is barred because they failed to assert a copyright claim in this case. Thus, the Foundation is concerned that if it did not assert its contingent copyright claim in this action, it would risk the possible merger and bar of its claim because its arises from the same facts as the other claims asserted in this case. Clark v. Haas Group. Inc., 9S3 F.2d 1235, 1238 (l0th Cir. 1992) (Res judicata not only bars matters that were actually litigated, but also issues that could have been raised). May v. Parker-Abbott Transfer and Storage. Inc., 899 F.2d 1007, l009 (l0th Cir. l990) (A final judgment on the merits precludes the parties from relitigating issues that were or could have been raised). However, at the same time, the Foundation 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, 4S2 U.S. 394, 101 S. Ct. 2424, 2428, 69 L. Ed. 2d 103 (1981) ("A final judgment on the merits of an action precludes the parties or their privies from re-litigating issues that were or could have been raised in that actions"); Montana v. United States, 440 U.S. 147, 99 S. Ct. 970, 973, 59 L. Ed. 2d 210 (1979).
The solution to the 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. 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.
In the event the Court were to enter partial summary judgment on the basis of the Arizona judgment, and that judgment subsequently is reversed by the Ninth Circuit, it will be necessary-for the Court to vacate its prior ruling as the Arizona judgment would be deprived of any preclusive effect. (Footnote 6: In light of the Foundation's trademark claims, the entry of partial summary judgment in favor of the defendants on the Foundation's copyright claims would merely be an interlocutory ruling that would not end this case. Because the Foundation has no intention of actively pursuing a copyright claim until its appeal is decided, partial summary judgment on the copyright claims will have little or no practical value to the defendants. End of Footnote 6). 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, (Footnote 7: A district court judgment that has been vacated, reversed or set aside on appeal is deprived of all preclusive effect. Franklin Sav. Ass'n v. office of Thrift Supervision, 3S F.3d 1466 (l0th Cir. 1994); see also1B James W. Moore, et. al., Moore's Federal Practice, 0.416[2] (2d Ed. 1995). End of Footnote 7). or the district court judgment will be affirmed and the Foundation will have no choice but to agree to the dismissal of its copyright claim with prejudice.
B. In The Alternative, The Court Should Dismiss Count V Without Prejudice.
If the Court prefers to remove Count V from the docket pending the Ninth Circuit's decision, pursuant to Rule 41 of the Federal Rules of Civil Procedure, the Court can dismiss the Foundation's contingent copyright claims without prejudice to the Foundation's right to re-assert those claims if it prevails in the Ninth Circuit, and on the condition that the pendency of the Foundation's trademark claims in this case shall not be asserted by the defendants as a defense in any future copyright suit arising out of the defendants' actions on the Internet. A dismissal without prejudice on these terms will place any copyright dispute arising out of the defendants' activities on the Internet (Footnote 8: Defendant Schaveland's motion discusses his and Kristen Maaherra's "CD publishing project" and suggests that this lawsuit is somehow preventing them from pursuing this project. However, this case has nothing to do with any "CD publishing project" being undertaken by the defendants -- as explained in the complaint, the Foundation brought this action because of the defendants' unauthorized use of its marks on the Internet in connection with the publication of The URANTIA Book on the Internet. Moreover, the Foundation's complaint and stay motion clearly state that it has no interest in pursuing a copyright claim against the defendants until the pending appeal is resolved. Thus, the pendency of the Foundation's contingent copyright claim in this case should no more chill the defendant's "CD publishing project" (or their publication of The URANTIA Book in any other form) than the risk that the Ninth Circuit will reverse the Arizona district court's judgment. End of Footnote 8). in abeyance pending the Ninth Circuit's nailing, and will protect the Foundation from any attempt by the defendants to assert the pendency of the Foundation's trademark claims in this case as a bar to a future copyright action.
C. The Doctrine of Res Judicata Does Not Apply
The Foundation does not dispute the fact that until the Arizona district court's declaratory judgment is reversed on appeal, it is a final judgment which binds the Foundation. However, until reversed, the Arizona district court's judgment only collaterally estops the Foundation from re-litigating the issue of whether it owns a valid copyright in this case. Because the Arizona judgment is based on a different cause of action for copyright infringement which arises from facts that are unconnected to the subsequent events which give rise to this case (the defendants' activities on the Internet), as a matter of law, that judgment cannot be res judicata in this case.
The doctrine of res judicata or claim preclusion applies when a party attempts to relitigate the same cause of action which resulted in the previous adverse judgment. See Montana v. United States, 440 U.S. 147, 99 S. Ct. 970, 973, 59 L. Ed. 2d 210 (1979) (discussion of the difference between res judicata and collateral estoppel). The doctrine of collateral estoppel or issue preclusion bars a party from re-litigating issues that were decided against it in a previous action based on different facts (or even against a different opponent). See Federated Dept. Stores. Inc. v. Moitie, 4S2 U.S. 394, 101 S. Ct. 2424, 2428, 69 L. Ed. 2d 103 (1981).
Because this case arises from new facts which occurred after the Arizona district court's judgment, the Foundation is not asserting the same cause of action in this case. Thus, defendant Kristen Maaherra's reliance on the doctrine of res judicata is misplaced.
V. CONCLUSION
For all the foregoing reasons, the Foundation asks the Court to deny the defendants' motions for partial summary judgment on the Foundation's copyright claims, and to instead grant the Foundation's 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 Appeals for the Ninth Circuit in URANTIA Foundation v. Kristen Maaherra, Case No. 9517O93. In the alternative, the Foundation asks the Court to dismiss its copyright claim without prejudice to the Foundation's right to re-assert its copyright claim if the Arizona declaratory judgment is reversed by the Ninth Circuit, and on the condition that the pendency of the Foundation's trademark claims arising out of the defendants' activities on the Internet cannot be asserted by the defendants as a defense in any future copyright case.
Dated this 26 day of November, 1996.
By Scott A Wharton, et al
Attorneys for Plaintiff
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December 6, 1996
Defendant ES's Reply Brief in Support of his Motion for Partial Summary Judgment
DEFENDANT ERIC SCHAVELAND'S REPLY BRIEF IN SUPPORT
OF HIS MOTION FOR PARTIAL SUMMARY JUDGMENT
AS TO COUNT V (COPYRIGHT INFRINGEMENT)
Pursuant to D.C.COLO.LR 7.1F, Defendant Eric Schaveland (Defendant) submits the following Reply Brief in support of his Motion for Partial Summary Judgment as to Count V (Copyright Infringement):
I. INTRODUCTION
(1) Plaintiff's claim that it has no intention of pursuing its copyright claim until its appeals are over is misleading. The fact that Plaintiff has brought up previously litigated copyright issues before this court and was seeking relief in the form of a Preliminary Injunction requiring Defendant to cease and desist from publishing the Urantia Book on the Internet, belies what Plaintiff characterizes as only a benign attempt to assert claims that might be otherwise barred in future litigation..
(2) Plaintiff's copyright claims are barred by collateral estoppel. The res judicata doctrine requires that there be an end to litigation, and the related doctrine of collateral estoppel demands that copyright litigation end now with the Defendant. The Urantia Papers are in the public domain for all of the public (including Defendant) unless and until a higher court says otherwise.
(3) Plaintiff Foundation claims that it has "no choice" but to sue me for copyright infringement because otherwise its copyright claim might be barred. (Page 8, last sentence). This "blame the victim" attitude is more appropriate to preschool emotions than pretrial motions. The plain fact is that Plaintiff's copyright claims are already barred by the doctrine of collateral estoppel. Plaintiff has always had a choice in pursuing its endless litigation tactics against Urantians. Plaintiff chooses to sue.
(4) In fact 6 of its Brief in Opposition, Plaintiff inappropriately brings up settlement negotiations with one party to this suit in which I did not participate and to which I was not privy. Plaintiff's attorneys act like I am beneath even taking seriously enough to include in their settlement discussions. I gave a settlement proposal to Plaintiff in writing wherein I proposed taking down my Home Page permanently and dropping my Counterclaims in exchange for Plaintiff dropping its Complaint. Plaintiff's counsel would not discuss this proposal with me at our first meeting of the parties even though I had heard no response from Plaintiff on this issue (and it had been 11 days since I had originally faxed my settlement proposal to Plaintiff).
II. RESPONSE TO PLAINTIFF'S STATEMENT OF ADDITIONAL FACTS
1. Admitted.
2. Denied. The Plaintiff's copyright claim in this case is based on Defendant giving away the same Urantia Papers computer search program and "infringing" the same copyright claim (See Plaintiff's Original Complaint page 8, 27 and page 14, (d).
3. Denied. Plaintiff seeks a Preliminary Injunction ordering Defendant to cease and desist from publishing the Urantia Book on the Internet. (See Plaintiff's Original Complaint, page 14, (d), and Arizona Declaration of Joseph D. Lewis, page 2, 5, second sentence, part of Exhibit B of Plaintiff's Reply Brief in Opposition.)
4. Denied. Plaintiff's declared intent to seek a Temporary Injunction is harassing and intimidating. (See Plaintiff's Original Complaint, page 14, (d), and Arizona Declaration of Joseph D. Lewis, page 2, 5, second sentence, part of Exhibit B of Plaintiff's Reply Brief in Opposition.)
5. Denied. Plaintiff seeks a preliminary injunction ordering Defendant to cease and desist from publishing the Urantia Book on the Internet. (See Plaintiff's Original Complaint page 14, (d) and Arizona Declaration of Joseph D. Lewis, page 2, 5, second sentence, part of Exhibit B of Plaintiff's Reply Brief in Opposition.)
6. Denied. I don't know what Plaintiff's counsel was attempting in talking to another Defendant's counsel about issues to which I am not privy. Since I was not part of this alleged discussion, how could I possibly agree to Plaintiff's characterization of its motives in said discussion as being an undisputed fact?
7. Denied. Plaintiff seeks a Preliminary Injunction ordering Defendant to cease and desist from publishing the Urantia Book on the Internet. (See Plaintiff's Original Complaint page 14, (d) and Arizona Declaration of Joseph D. Lewis, page 2, 5, second sentence, part of Exhibit B of Plaintiff's Reply Brief in Opposition.)
III. ARGUMENT AND CITATION OF AUTHORITIES
A. An Injunction is as Good as a Copyright -- When You Don't Own the Copyright.
Plaintiff has declared its intent to seek a preliminary and a permanent injunction to prevent Defendant from publishing the text of the Urantia Papers on the Internet. [See Plaintiff's Original Complaint page 14, (d)]. Plaintiff claims that it has clearly expressed its intention to refrain from actively pursuing a copyright claim in this case. (See Plaintiff's Opposition Brief, page 6, No. 3 and page 7 Nos. 5, 6, and 7). However, Defendant sees the actions of Plaintiff as carrying more weight than Plaintiff's words. The fact that Plaintiff included a Preliminary Injunction on copyright as a form of relief in its original Complaint obviously precludes Plaintiff's recent claim that it "only" included copyright issues in its Complaint for "prophylactic reasons." [Plaintiff's Opposition Brief, page 2, (1) and page 8, 1.] As we say in the masonry trade: If you are going to screw me, don't leave your prophylactic lying around.
B. Res Judicata Means an End to Litigation -- Not the Endless Pursuit of Litigation.
Plaintiff cites Clark v. Haas Group, Inc., 953 F.2d 1235, 1238 (10th Cir. 1992) and May v. Parker-Abbott Transfer and Storage, Inc., 899 F.2d 1007, 1009 (10th Cir. 1990) as a justification for making a copyright claim in this case. However, both these cases clearly uphold the doctrine of res judicata as a bar to relitigating issues on which there is a final judgment on the merits. May v. Parker-Abbott Transfer and Storage, Inc., 899 F.2d 1007, 1009,1010 (10th Cir. 1990) ("Res judicata" is a rule of fundamental and substantial justice which enforces public policy that there be an end to litigation.) Clark v. Haas Group, Inc., 953 F.2d 1240 (10th Cir. 1992 upholds May v. Parker-Abbott quoting ("precisely the sort of piecemeal litigation, unnecessary expense, and waste of judicial resources that the doctrine of res judicata is designed to prevent.")
In short, Plaintiff is boldly using the doctrine of res judicata to justify its attempt to bring piecemeal litigation, create unnecessary expense for Defendant, and waste judicial resources.
Plaintiff's argument fails to overcome the weight of the real intent of res judicata and collateral estoppel. Plaintiff's appeal issues are not novel and are directly addressed in 1B James W. Moore, et. al., Moore's Federal Practice, 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). The Foundation's pending appeal in the Ninth Circuit notwithstanding, there has been a full and final determination, unmodified and not vacated or reversed, that the renewal copyright in the Urantia Book is invalid.
C. Plaintiff is Not the Victim
Plaintiff states that the Court's granting my motion for summary judgment "will have little or no practical value to the defendants." (Plaintiff's opposition brief, page 10, footnote 6). I suppose this argument should have been made by the Plaintiff in the Arizona court as well: "Granting Summary Judgment to Defendant Maaherra will have little or no practical value to her, Judge Urbom. We will just have to sue her for copyright infringement again in a different Federal Court -- and maybe get that Injunction that you denied us as well." Such an argument defies common sense. In fact, such an argument insults common sense. Sleep is a very practical thing for me, and I would sleep much better knowing that Plaintiff wasn't going to sue me again for copyright infringement when I publish my Urantia Papers CD project.
On page 8, last sentence, of Plaintiff's Opposition Brief, Plaintiff seriously argues that it has "no choice" but to assert a copyright claim in this case. As anyone involved in the criminal justice system knows, the perpetrator convict often blames the victim for the perpetrator's own criminal conduct: "If she didn't wear sexy clothes and come on to me, I wouldn't have raped her." If mugging victims would just expediently give all of their valuables to their assailants, then there would be a lot fewer homicides. When someone claims to have "no choice" in their conduct, I always think of the excuse my brother heard while working as a state prison guard: "If she had just given me her purse like I told her to, then I wouldn't have had to hit her in the head with that pipe." Plaintiff Foundation does have a choice. Just like everybody else.
D. Plaintiff Mis-Characterizes Talks with Other Counsel
In Fact 6 on page 7 of its opposition brief, Plaintiff goes into great detail about a conference with counsel for Kristen Maaherra which Plaintiff describes as "an attempt to resolve the issues raised by the Foundation's Stay Motion." This was news to me. It seems to me that if Plaintiff's counsel wants to bring up settlement attempts as a reason to oppose my Motion before this Court, then Plaintiff's counsel should mention only those conferences in which I actually participated.
If Plaintiff wishes to bring up settlement attempts, they should also mention that they did not respond to a written settlement proposal from me (Defendant Schaveland) for 11 days. This proposal stated that I would drop my Counterclaims and give up my Home Page on the Internet permanently (I have already given up the Domain name "urantia.com") if Plaintiff would drop its Complaint. After eleven days with no response from Plaintiff concerning my proposal, at the first meeting of the parties I brought up Settlement (as required by Federal Rule 26 (f) of the Federal Rules of Civil Procedure). Plaintiff Attorney, Scott Wharton, wouldn't discuss my Settlement Proposal and said that he would have someone from Urantia Foundation call me.
IV. CONCLUSION
I find it bizarre that my wife has spent over 5 years in litigation initiated by Plaintiff, and -- even after winning the copyright issue -- has been sued again for copyright infringement. I thought that -- by holding that the Urantia Papers are in public domain -- the Honorable Senior Judge Warren K. Urbom had put an end to copyright litigation initiated by Urantia Foundation. I pray that this Court will indeed "put an end" to this issue by granting my Motion for Partial Summary Judgment on Count V (Copyright Infringement). So we can all get some sleep.
Dated this 6th day of December, 1996.
By Eric Schaveland, Defendant Pro Se.
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December 10, 1996
Defendant KM's Reply Brief in Support of Motion for Partial Summary Judgement.
KRISTEN MAAHERRA'S REPLY BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGEMENT
In its brief, the Plaintiff Urantia Foundation essentially admits that Defendant Kristen Maaherra is entitled, as a matter of law, to summary judgment dismissing the copyright claim against her. The Foundation then attempts to present an equitable argument as to why Kristen Maaherra should not be awarded the legal relief to which she is entitled. The Foundation has presented an improper and incomplete statement of its belated attempts to withdraw from its forceful assertion of a copyright claim.
For example, the Foundation attempts to argue that it was forced to file a copyright claim, as if it had no choice, yet it offers no excuse whatsoever for its complete failure to contact Kristen Maaherra or her attorney prior to initiating a new lawsuit against her. Had such efforts been made, it is quite possible that the entire litigation could have been avoided.
In footnote 5 of its brief, the Foundation indicates that regardless of the outcome of the appeal pending in the Ninth Circuit, the copyright case will not likely go forward in this Court against Kristen Maaherra. Either the Foundation will have no claim, or the claim will be asserted in Arizona, by amending the pleadings in that jurisdiction. Consequently, there is no reason for this Court to keep the copyright case on its docket.
Response Concerning Disputed Facts
The Foundation's Brief contained a Section III entitled "Statement of Additional Facts" rather than the "Statement of Additional Disputed Facts" required by this Court's general order. The "additional facts" are all irrelevant to the determination of Maaherra's Motion for partial summary judgment. They will each be discussed below:
1. Maaherra admits the asserted additional facts set forth in paragraph 1, except for the characterization that there is only one issue on appeal. The Foundation's own brief on appeal states that there is more than one issue.
2. Maaherra admits that the activities alleged in the Complaint are purported to have occurred after the time when the Arizona district court entered its final judgment. However, Maaherra disavows that this alleged activity was her activity.
3. Maaherra admits the additional fact set forth in paragraph 3, but further notes that the Foundation did not indicate any willingness to dismiss the copyright count until after Maaherra took her own legal action to refute the copyright claim. Nor does the Foundation's statement contain an accurate recitation of settlement efforts that have been made in this case.
4. Maaherra denies this additional fact and states that it is not a material fact with respect to her Motion for Partial Summary Judgment.
5. Maaherra denies this additional fact and states that it is not a material fact with respect to her Motion for Partial Summary Judgment.
6. Maaherra admits that counsel for the Foundation conferred with her counsel prior to filing its motion for a stay as required by the local rules. At that time, counsel for the Foundation refused to engage in general settlement discussions for this case so that all claims could be resolved together.
7. Maaherra admits that she filed a Motion for Protective Injunction in the U.S. District Court for the District of Arizona, but denies the mischaracterization of that Motion by the Foundation. The Foundation indicated at several junctures that it was planning to seek a preliminary injunction against Maaherra which necessitated the filing of the motion in Arizona as well as the defense of the instant case. The Foundation fails to mention that its Complaint specifically requests "that the Court enter preliminary injunction ordering the Defendants . . . to cease and desist from publishing the text of The URANTIA Book on the Internet." (Complaint, Prayer for Relief, paragraph (d).) Indeed, after the filing of the Complaint, counsel for the Foundation indicated that the Foundation was actively working on a motion for preliminary injunction. (Lewis Declaration in Arizona case of October 23, 1996, paragraph 5.)
In footnote 6 of its Complaint, the Foundation notes that the entry of the requested partial summary judgment would be interlocutory in nature. If true, there would be no risk of a waste of judicial resources stemming from duplicate appeals. Thus, this factor, if relevant at all, weights in favor of granting the requested judgment. The district court in Arizona refused the Foundation's request to stay its judgment. Nor did the Ninth Circuit deem it appropriate to stay the effect of the judgment. For the same reasons, there is no genuine reason for this court to delay giving effect the prior judgment and dismissing the copyright case.
The Foundation's only legal argument pertains to whether the doctrine of res judicata or collateral estoppel is applicable. However, this is a distinction without a difference. It is true that the acts alleged in the initial complaint in this case are subsequent to the Arizona case, but under either doctrine, Defendant Maaherra is entitled to the same relief.
Conclusion
For the foregoing reasons, Maaherra's partial summary judgment should be granted.
Respectfully submitted,
Joseph D. Lewis
Peter A. Jaffe
Attorneys for Defendant Kristen Maaherra
Last Updated April 9, 1997 by Kristen Maaherra