Protective Injunction
This motion was filed in Arizona.
September 27, 1996
MOTION FOR PROTECTIVE INJUNCTION
Defendant, Kristen Maaherra, through her undersigned counsel, respectfully requests the Court to issue an injunction, enjoining the Plaintiff, Urantia Foundation, from filing additional lawsuits against her or others asserting copyright infringement for the copyright in the Urantia Book, which this Court has already declared to be invalid.
The grounds for this Motion are set forth in the accompanying Memorandum and Declaration of Kristen Maaherra.
In the absence of the assistance of this Court, Maaherra and other Urantians will be subjected to unnecessary litigation and will be required to expend resources to defend themselves in other forums against a copyright claim that has been extinguished.
Respectfully submitted,
Joseph D. Lewis
John M. Randolph
Attorneys for Defendant
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DEFENDANT KRISTEN MAAHERRA'S
BRIEF IN SUPPORT OF MOTION FOR
PROTECTIVE INJUNCTION
Defendant KRISTEN MAAHERRA ("Maaherra") submits the following brief in support of her motion for injunctive relief and, for the following reasons, asks the court to restrain and enjoin the Plaintiff URANTIA FOUNDATION ("Foundation") from reasserting and attempting to relitigate, by prosecuting or commencing in any Federal Court, any claims for infringement of a copyright in The Urantia Book -- a claim previously and finally adjudicated by this Court.
I. STATEMENT OF FACTS
This case was brought by the Foundation against Maaherra for copyright infringement, trademark infringement, and other related causes of action. On October 25, 1995, this Court 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. (Amended Judgment, Clerk's Record No. 329, attached as Exhibit 1.) The Judgment for Maaherra on the copyright claim was entered in accordance with the Court's memorandum and order dated September 28, 1995 which held that the renewal copyright in The Urantia Book was invalid. (See Memorandum and Order dated September 29, 1995, Clerk's Record No. 322, attached as Exhibit 2; see also Memorandum and Order dated February 17, 1995, Clerk's Record No. 288, attached as Exhibit 3.)
After this Court's initial ruling on the invalidity of the purported renewal copyright in The Urantia Book, the Foundation sought to have this Court stay the effect of its judgment. On September 29 1995, this Court denied the Foundation's motion to continue the preliminary injunction then in effect and to stay the declaratory judgment. (See Exhibit 2.) This court noted that the Foundation's request for an injunction would have eviscerate the court's decision and rendered its conclusion meaningless. (Id. at p. 2.)
The Foundation subsequently applied to the Court of Appeals for the Ninth Circuit for a stay of this Court's judgment. The Foundation's request to the Court of Appeals was denied. (See Order of December 8, 1995 attached hereto as Exhibit 4.)
Notwithstanding the fact that this Court's judgment is in full force and effect and the Foundation's failed attempts to obtain injunctive relief, the Foundation has proceeded to file new lawsuits against Maaherra and others (Footnote 1: Eric Schaveland, Maaherra's husband, is also named as a defendant in the newly-filed Colorado 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. (A copy of this Complaint without exhibits is attached as Exhibit 6.) End of Footnote 1.) asserting copyright infringement for distributing copies of The Urantia Book. The Foundation has brought a new action against Maaherra in the United States District Court for the District of Colorado to obtain, inter alia, an injunction based on the very same copyright that was the subject of this case. (Civil Action No. 96-D-2004, a copy of the Complaint without exhibits in the second action is attached hereto as Exhibit 5.)
At no time prior to filing this new lawsuit, did the Foundation contact Maaherra or her attorney and ask her to stop the alleged activity set forth in the Complaint. (Footnote 2: At one point, a representative of the Foundation called Maaherra's home and asked to speak to her about her Internet "home page." Maaherra stated that the home page referred to was not hers and has heard nothing further from the Foundation or any of its representatives. (Maaherra Declaration 7.) End of Footnote 2). Maaherra believes that the entire Complaint is frivolous and will submit her substantive response to the allegations to the district court in Colorado. The present Motion is directed solely to the repetitious claim of copyright infringement, Count V of the Complaint in the new lawsuit.
II. ARGUMENT AND CITATION OF AUTHORITY
A. This Court Has Authority to Grant Injunctive Relief
Maaherra recognizes that a grant of injunctive relief is not a remedy that should be granted lightly, but she urges the court to grant injunctive relief against further litigation in this instance because of the Foundation's propensity to assert legal claims it cannot win. The doctrine of res judicata provides some degree of a remedy for a defendant who is forced to defend against a claim that has already been decided. However, when the refiling of a complaint against an individual constitutes harassment, the doctrine alone does not provide adequate protection. See text infra, p. 8. The Foundation has sufficient financial resources and has demonstrated the intention to use them to harass Maaherra by reasserting claims that have been extinguished.
Injunctive relief will serve to reinforce the principle of res judicata. As the court noted in Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1524 (9th Cir. 1983), cert. denied465 U.S. 1081 (1984): "[An] advantage of dispensing injunctive relief against relitigation is that it . . . articulate[s] forcefully the principles of collateral estoppel and res judicata" and preserves judicial resources. Maaherra's resources would also be conserved by a grant of injunctive relief because, as the court further noted: "Armed with an injunction against relitigation, the successful litigant need not convince a new judge that the action pending before him is similar to and estopped by an earlier judgment." Id.
The court's authority to issue writs, including injunctions, to enforce its own orders decrees and judgments is inherent and stems from its contempt powers. See Root v. Woolworth, 150 U.S. 401, 411-12 (1893); Wood, 705 F.2d at 1524. The court also has statutory authority to issue injunctions pursuant to the All Writs Act, 28 U.S.C. 1651(a), which grants all Article III courts the power to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Clinton v. United States, 297 F.2d 899, 901 (9th Cir. 1961); Wood, 705 F.2d at 1524. Injunctions against parallel litigation are appropriate in copyright infringement cases. See Meeropol v. Nizer, 605 F.2d 232 (2d Cir. 1974).
Courts have not hesitated to invoke their injunction powers to prevent relitigation of issues when a party has been overly litigious. The court has broad discretion to enforce its orders, and there is no specific requirement that the party to be enjoined must have engaged in any particular excessive conduct. In Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1033 (9th Cir. 1985), cert.denied 476 U.S. 1183 (1986), reh. denied 478 U.S. 1032 (1986), the court found adequate grounds for issuing an injunction against further litigation when the plaintiff had filed three suits in bad faith and for vexatious purposes. The Foundation alleges that Maaherra and others have infringed on its claim of copyright in The Urantia Book. If the Foundation was truly concerned about Maaherra's activities and not in filing vexatious litigation for the purpose of entangling Maaherra in litigation, it could have easily stated its demands to her and/or her attorney before initiating a new lawsuit. It did not. (Maaherra Declaration 7).
Although the Foundation knows its reassertion of its copyright claim is res judicata, the Foundation chose, instead, to initiate new suits in two different jurisdictions based on the same claim. The Foundation has filed this new suit for vexatious purposes, i.e. to harass Maaherra. Black's Law Dictionary (Footnote 3: Henry Campbell Black, 1736 (4th Ed., West Publishing 1951) (1891). End of Footnote 3). defines vexatious as "[w]ithout reasonable or probable cause or excuse." The Foundation has no reasonable or probable cause or excuse to pursue claims of copyright infringement against Maaherra or anyone else for copying The Urantia Book because of this Court's decision invalidating the Foundation's copyright in the book. By choosing to file a new lawsuit now, rather than awaiting the outcome of its appeal, (Footnote 4:Even were this Court's decision ultimately reversed, any claim against Maaherra for infringing the purported copyright in The Urantia Book should be brought before this Court for trial. A second trial before a different judge in a different jurisdiction is wasteful and unnecessary. End of Footnote 4). the Foundation is clearly acting in bad faith and for vexatious purposes. Therefore, Maaherra seeks the active assistance of the court to protect her from the Foundation's relentless and vexatious conduct.
As a condition precedent to a grant of injunctive relief, a court must have subject matter jurisdiction to hear the original case because, pursuant to the All Writs Act, injunctions and other writs can only be issued in aid of the court's jurisdiction. Cook, 775 F.2d at 1034-1035. Here, this Court unquestionably had subject matter jurisdiction to hear the matters before it. This Court possessed subject matter jurisdiction pursuant to 17 U.S.C. 101 et seq. and 28 U.S.C. 1331, 1332, and 1338(a) because the action arose under the Copyright Act.
A further condition that must be satisfied before granting an injunction is the existence of a final determination on the merits of the issue the court seeks to enjoin from relitigation. SeeCook, 775 F.2d at 1034-35. In the present case, this Court entered final judgment on the issue of copyright validity of the Foundation's purported copyright in The Urantia Book in favor of Maaherra and against the Foundation.
In complaints filed in the United States District Courts for the District of Colorado and the Northern District of Illinois, the Foundation is presently attempting to harass Maaherra and others and waste the valuable resources of the federal courts by asserting infringement of a copyright that this Court has already declared invalid.
From the outset of this case, it has been clear that the Foundation does not want others to distribute The Urantia Book. This Court has rejected the Foundation's request for an injunction preventing Maaherra from distributing the book in any way shape or form. Now, the Foundation is attempting to accomplish by harassment what it could not accomplish under the law.
B. Several Factors Favor Issuing an Injunction in This Case
An important factor courts consider in deciding whether to issue an injunction is the motive of the plaintiff. When a litigant abuses the court system for the primary purpose of harassing its opponents, the courts are justified and have the power under the All Writs Act to enjoin further litigation. See Harrelson v. United States, 613 F.2d 114, 116 (5th Cir. 1980) (citing Ruderer v. United States, 462 F.2d 897 (8th Cir. 1972), appeal dismissed, 409 U.S. 1031 (1972)); Zagano v. Fordham University, 720 F. Supp. 266, 268 (S.D.N.Y 1989) (Plaintiff's mailing of inflammatory letters to Fordham alumnae during pendency of second litigation constituted irreparable harm justifying issuance of injunction); Hill v. Estelle, 423 F. Supp. 690, 695 (S.D. Texas 1976) ("It also is within this Court's inherent power under 28 U.S.C. 1651(a) to enjoin litigants who are using the courts as a stage for their vendetta of harassment or abuse.").
A plaintiff can engage in harassment by either casting a wide net to reach as many defendants as possible or by focusing an attack on an individual. The Foundation is doing both. It has brought Maaherra into another court to relitigate decided issues, and it has filed another suit against several non-profit organizations who seek to make The Urantia Book available to the public. The Foundation has also chosen to mail inflammatory letters to distributors carrying competing versions of The Urantia Book and threatened legal action if they continue to sell competing versions of the book. The Foundation's aforementioned behavior constitutes an abuse of the court system for the purpose of harassing Maaherra and others. (Maaherra Declaration 5, 8.)
In light of the backlog of merit worthy cases languishing on the courts' dockets, another consideration of prime concern is conservation of judicial resources. See Bausch & Lomb, Inc. v. Alcide Corp., 684 F. Supp. 1155, 1158 (W.D.N.Y. 1987) (quoting Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180 (1952)) (orders to enjoin further prosecution must serve the fundamental purpose of "conservation of judicial resources and comprehensive disposition of litigation"). After this Court's decision invalidating the copyright in The Urantia Book the Foundation filed a new suit in Colorado against Maaherra alleging copyright infringement, this time naming Maaherra's husband, Eric Schaveland, as a co-defendant. The Foundation has also filed suit for copyright infringement in Illinois against a publisher and distributor of The Urantia Book. It is likely that the Foundation will file additional suits alleging copyright infringement in The Urantia Book unless this Court takes action. (Maaherra Declaration 8.) Even though the courts are obliged to use caution before issuing an injunction so as not to restrict a plaintiff's access to the courts, they will not allow any party to file repetitious suits because there is no constitutional right to harass the court. See Hill 423 F. Supp. at 695 (Court enjoined further litigation of a the first repetitive case because of probability that plaintiffs would continue to file suits and waste judicial resources). Most commonly, proseplaintiffs have been the ones who have abused the judicial process by filing repetitive suits, but they are not the only type of plaintiff capable of unnecessarily burdening the court's caseload. As the court noted in Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989), "[n]o one, rich or poor, is entitled to abuse the judicial process." (quoting Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir. 1975)).
A third consideration is whether the litigant whom a party seeks to enjoin is appearing pro se. Courts are reluctant to block free access to the courts by enjoining a pro se litigant from further litigation because "[a]s a class, those without the resources to hire counsel may, more heavily than most, have to depend on the judiciary to guard their interests." Wood, 705 F.2d at 1525. When courts are dealing with pro se litigants they are much more willing to indulge them and often refrain from issuing injunctions unless they have been excessively litigious. See e.g. Carlin v. Gold Hawk Joint Venture, 778 F. Supp. 686, 694 (S.D.N.Y. 1991); Kondrat v. Byron, 587 F. Supp. 994, 998 (N.D. Ohio 1984), aff'd 762 F.2d 1008 (6th Cir. 1985); Butterman v. Walston & Co., 308 F. Supp. 534, 538 (E.D. Wisc. 1970).
In the present case the potential denial of free access to the courts should carry little weight because the Foundation is represented by counsel. If any party needs to more heavily depend on the judiciary to guard its interests, it is the individual defendant Maaherra (who initially appeared pro se) and not the multi-million dollar Foundation. The rationale behind granting pro selitigants more leeway than those represented by counsel is that the pro se litigant typically is unsophisticated with respect to courtroom procedures. The Foundation should not be entitled to the same indulgence, however, because it has demonstrated that it is quite sophisticated with respect to courtroom procedures and is well aware of how to use and, in this case, abuse the courts to achieve its ends. The Foundation has demonstrated the willingness and financial ability to pursue any of those it perceives to be its enemies. (Footnote 5: A telling example of the Foundation's scorn for its perceived enemies can be found in one of the documents the Foundation filed before the Court of Appeals in this case. It characterized the Urantian organization the Fifth Epochal Fellowship as "simply an enemy of the Foundation" and subsequently sued the organization for infringing the copyright in the Urantia Book. See note 1, supra. (A copy of the pertinent portions of the document are attached as Exhibit 7.) End of Footnote 5). While denial of access to the courts is a remedy that should be employed sparingly, the courts have shown themselves to be unwilling to indulge even pro se litigants who were likely to cause a defendant harm. In Zagano, 720 F. Supp. at 268 the court granted a request for injunctive relief from further litigation by a pro se plaintiff because, although the she had engaged in only one other parallel suit, she had the means to harm the defendant University's reputation by citing the lawsuit in inflammatory letters to the University's alumnae and friends.
The Foundation has also used intimidation against Maaherra and against other defendants. Because the Foundation has the ability to intimidate Maaherra and others and to force other Urantians to defend themselves from numerous attacks arising from an issue already decided, any harm from potential denial of access to the courts is far outweighed by the remaining factors, which strongly favor the issuance of an injunction.
Courts may also consider a plaintiff's ability to cause a defendant to waste money in defense of frivolous claims. As the court in Harrelson noted: "[a] litigious plaintiff pressing a frivolous claim, though rarely succeeding on the merits, can be extremely costly to the defendant and can waste an inordinate amount of court time." 613 F.2d at 116. When a plaintiff has great financial resources to initiate suits and has demonstrated a willingness to litigate every perceived threat, it is necessary for the court to actively intervene and protect defendants from repetitive and unnecessary lawsuits.
In this case, the plaintiff is a self-described multi-million dollar foundation with great financial resources to initiate suits while the defendant is an individual with limited financial resources to defend herself. Injunctive relief is necessary here because res judicata and collateral estoppel are insufficient remedies to protect Maaherra and others from repetitious litigation.
C. Maaherra's Request for Injunctive Relief Will Not Constitute an Abuse of Judicial Discretion
Where there has been a final determination on the merits in a case and where a court has subject matter jurisdiction, the power to issue an injunction is purely discretionary and, once issued, the standard for review is abuse of discretion. See Wood 705 F.2d at 1524. (Footnote 6: In Wood, the court found circumstances similar to those in Clinton. Clinton had made two attempts to litigate the same claim, and Wood had shown the intention to relitigate claims that had been previously dismissed. In both cases the court of appeals held that it was not an abuse of discretion to enjoin further relitigation of the same issues. End of Footnote 6). SeealsoClinton297 F.2d at 900. A reviewing court, in determining whether a lower court's issuance of an injunction was an abuse of discretion, is typically concerned with the following questions: (1) whether the lower court gave the enjoined party notice of the injunction and an opportunity to oppose it; (2) whether the lower court narrowly tailored the scope of its injunction to address only the injury complained of; and (3) whether the lower court cited specific reasons for issuing the injunction in its order.
Maaherra's request for injunctive relief will not provide grounds for a challenge of the court's use of discretion because it is being made with notice and opportunity for hearing. Thus, the order will not be issued sua sponte. See In re Hartford, 681 F.2d 895, 896 (2d Cir. 1982), cert. denied459 U.S. 1206 (1983) (abuse of judicial discretion arising from lack of notice where the court issued its order sua sponte). The Foundation will also have the opportunity to file its own brief and evidence.
If the court grants Maaherra's motion and issues an injunction with the parameters she suggests, there will also be no grounds for abuse of discretion for having issued an overbroad injunction. By requesting the court to enjoin further litigation only of copyright infringement, Maaherra requests nothing more than what the principles of res judicata and collateral estoppel would afford. By granting the injunction this Court would simply be saving Maaherra, and others similarly situated, from having to file motions for dismissal based on either res judicata or collateral estoppel in parallel or subsequent suits that the Foundation has either already filed or will likely file. Moreover, as presently defined, the parameters of Maaherra's request for relief will not, and should not, disturb the Foundation's right to appeal this Court's decision.
A remaining ground upon which reviewing courts have reversed injunctions as abuse of discretion is failure to cite specific reasons for such an order. See Tripati, 878 F.2d at 353 (injunctions against further litigation are proper when the litigant's history is set forth in the order granting such relief); Sires v. Gabriel, 748 F.2d 49, 51 (1st Cir. 1984) (order citing no statement of grounds for issuing injunction is abuse of discretion). As demonstrated herein, the Foundation used intimidation against Maaherra and others, wasted limited judicial resources and abused the courts for the purpose of harassing its opponents. This behavior constitutes sufficient grounds for the issuance of an injunction against further litigation.
III. CONCLUSION
For all the foregoing reasons, Maaherra asks the Court to grant its motion for a protective injunction against relitigation of all issues fully and finally determined by this Court in connection with the validity of the renewal copyright in The Urantia Book.
Respectfully submitted,
Joseph D. Lewis
Date: September 27, 1996
Attorneys for Defendant
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AFFIDAVIT OF KRISTEN MAAHERRA
1. 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.
2. Eric and I met at the Boulder School for Students of the Urantia Book. Our dream together is to do God's will, to be useful somehow to God on this troubled little planet. The most certain way to help the planet, we figured, is to work for the spiritual rebirth of every person on the planet. Giving away copies of the fifth epochal revelation to the planet seems the best way to help each person find God. Besides contacting the spirit of God that dwells within the human mind, the revelation is the one place on the planet I know of where human mind can touch superhuman mind. After the Boulder School, Eric and I worked together to create an Index of the Urantia Papers -- both in printed and electronic form -- which was the subject of the previous litigation with URANTIA Foundation, in which the Foundation only sued Kristen.
3. Currently, Eric and I are working on another project together: a multi-media CD of the Urantia Papers. We gave away 60 copies to beta-testers last month at the Triennial International Conference for Urantians. The CD contains beautiful paintings by Urantian artists; an audio pronunciation guide (click on a word to hear it pronounced); a replete Bible harmony; songs by various Urantian vocalists; a dictionary of names and places in the Urantia Papers; photos of each page of the First Printing; a search engine -- Adobe's -- to every word in the Urantia Papers; transcripts of talks by William Sadler, Jr., given in the late 1950's and early 1960's; a "Urantia Book for Junior Urantians" from the 1950's; a bibliography of some possible human sources used by the revelators; an illustrated chronology of life on earth since life implantation; maps of the travels of Jesus; maps and charts of race migrations; charts and diagrams of the universe; and much more I don't remember just now. Anyhow, the CD is a project we're doing together, although the various components come from many sources, including our own study aids. It is my personal belief that URANTIA Foundation has sued us because of this CD project -- to stop it, or at least slow it down -- because the Foundation is surely aware that it is our dream to place CDs of the Urantia Papers in every computer store in the world. I was hoping to work exclusively on the CD this fall.
4. Some Urantia projects have been mine alone; other projects have been exclusively Eric's.
5. My projects include transcribing every taped talk by Bill Sadler I can get my hands on. So far, I have transcribed about 35 90-minute tapes. Another pet project of mine has been to collect (mostly out of print) books that might contain a phrase or concept used by the revelators in the Urantia Papers. I scanned in and cleaned up the Kids' Urantia Book from the 1950's. Another project of mine was the illustrated chronology, and the glossary of names and places. For years, I have been plugging away at a dictionary. I have just started scanning in questions used at the Boulder School for use as study aids on the CD.
6. Projects which are exclusively Eric's include the maps of the travels of Jesus, the photos of each page of the 1955 printing of the Urantia Papers, certain essays he has written for distribution within the Urantia community, his Internet Home Page, the audio pronunciation guide for the CD, and video clips for the CD. Eric is the "computer genius." He says he "hates computers," but he can troubleshoot and fix the hardware, make the software work, and generally, get them to do what he wants them to do. We usually work on IBM computers, but Eric has a video card for the Macintosh computer (the one we had to cut the CDs on to make them cross-platform) to put film clips on the CD. The video clips and sound clips are both his projects, because of the various compression programs and problems with this technology. He figured out the Adobe Software, the cross-platform software our friend Rick Murphy found for the CD project. Eric did all the programming for the Index of the Urantia Papers for the CD.
7. Dealing with this lawsuit -- both because of the extra stress, extra money, and extra time it will take -- will make it difficult to work on my projects and study aids.
Under penalty of perjury, I declare these statements to be true.
Dated: September 25, 1995
Kristen Maaherra
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October 14, 1996
(Arizona) Plaintiff Foundation's Memorandum in Response to Motion for Protective Injunction.
PLAINTIFF URANTIA FOUNDATION'S MEMORANDUM IN RESPONSE TO MOTION FOR PROTECTIVE INJUNCTION
COMES NOW Plaintiff URANTIA Foundation and, pursuant to Local Rule 11(c), files
the following memorandum in response to defendant Kristen Maaherra's motion for protective
injunction. As explained below, the requested Protective injunction" should be denied for the
following reasons:
(1) Because exclusive jurisdiction over the copyright issues in this case passed to the Ninth Circuit when the Foundation filed its notice of appeal, this Court does not possess jurisdiction under the All Writs Act, 28 U.S.C. 1651, to issue the requested Protective injunction";
(2) Regardless of whether this Court or the Ninth Circuit possesses jurisdiction over the issues raised by Kristen Maaherra's motion, there simply is no basis for the extraordinary relief she requests because: (a) the Foundation does not attempt to relitigate the claims decided by this Court in the Colorado case, and (b) the evidence shows that the Foundation brought the Colorado case as a result of Kristen Maaherra's failure to comply with the parties' agreement to settle the trademark issues in this case, and not to "harass" or "intimidate" her; and,
(3) The requested injunction will serve no purpose because the Foundation has made it clear--in its complaint in the Colorado case, its own motion to stay the copyright claim in Colorado, and in numerous discussions between counsel--that it is has no desire to actively pursue a copyright claim in the Colorado case mail and unless the Ninth Circuit reverses this Court's judgment.
For these reasons, which are discussed below in detail, Kristen Maaherra's motion should be denied.
I. INTRODUCTION
A. The Foundation's Appeal
On October 25, 1995, the Court entered its amended final judgment in this case which, inter alla, dismissed the Foundation's claim for copyright infringement and declared the Foundation's copyright to be invalid and unenforceable. (Footnote 1: On February 27, 1995, the 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. Lee Court held that questions of fact regarding the Likelihood of confusion" required a trial on the issue of Kristen Maaherra's ultimate liability for trademark infringement. URANTIA Foundation v. Maaherra, 895 F. Supp. 1338, 1343 (D. Ariz. 1995). The parties settled the Foundation's trademark claim before trial, and the trademark claims were dismissed on that basis. Mundelius Declaration, Exhibit A.) On November 1, 1995, the Foundation filed its notice of appeal, which initiated a timely appeal to the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"). The only issue on appeal is whether this 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 for several months. The parties are waiting for oral argument to be scheduled.
B. The Colorado Litigation
In February, 1996, the Foundation learned that Kristen Maaherra's husband, Eric Schaveland, had procured and that he and Kristen Maaherra were using "urantia.com" as an Monet domain name. Mundelius Declaration, 3. The Foundation also learned that Kristen Maaherra and her husband 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 symbol marks. Id., 5. Their home pages also include the complete text of The URANTIA Book, study aids, and information about the book's teachings and groups which study the book's teachings. Id., 7.
On August 27, 1996, the Foundation commenced an action against Eric Schaveland and Kristen Maaherra in the United States District Court for the District of Colorado for trademark infringement, unfair competition, trademark dilution, breach of contract (for Kristen Maaherra's breach of the agreement which settled the trademark issues in this case), and copyright infringement as a result of their activities on the Internet. (Footnote 2: The Colorado action is captioned URANTIA Foundation v. Eric Schaveland and Kristen Maaherra, in the United States District Court for the District of Colorado, Case No. 96-D-2004.) Id., Exhibit B. The Foundation's complaint asks the Colorado 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 Foundation..." Id, Exhibit B. p. 14. On October 7, 1996, the Foundation also filed a motion with the Colorado court which asks the court to stay all proceedings on the Foundation's count for copyright infringement until the Ninth Circuit decides the pending appeal. Id, Exhibit C. Counsel for the Foundation conferred with counsel for Kristen Maaherra before the Foundation filed its motion in an attempt to resolve the issues raised by the stay motion. Wharton Declaration, 3-11. Counsel for the Foundation suggested that the parties agree to the entry of an order in the Colorado case 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 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. Id., 6; Mundelius Declaration, 6. However, Kristen Maaherra would not agree to either proposal. Id.
C. Maaherra's Motion for Protective Injunction
On September 27, 1996, Kristen Maaherra filed her motion for protective orders which
asks this Court to enjoin the Foundation from pursuing its copyright claim in the Colorado case. She filed her motion for "protective injunction" despite the fact that the complaint in the Colorado action specifically asks the Court to stay the Foundation's copyright claim until its appeal is decided by the Ninth Circuit. Moreover, Kristen Maaherra filed her "motion for protective injunctions" with this Court despite the fact that the Ninth Circuit currently possesses exclusive jurisdiction over the copyright issues in this case, and despite the fact that her counsel was informed on several occasions prior to the filing of the motion 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 (and subsequently did) file a stay motion in the Colorado court. Wharton Declaration, 3-11. 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. Id.. Nevertheless, Kristen Maaherra asks this Court to needlessly enjoin the Foundation from doing what it has no intention of doing.
II. ARGUMENT
A. The Ninth Circuit Currently Possesses Exclusive Jurisdiction Over The Copyright Issues In This Case.
The All Writs Act, 28 U.S.C. 1651 (a), states that "all courts . . . may issue all writs necessary or appropriate in aid of their respective jurisdictions ..." The All Writs Acts does not confer upon the federal courts the ability to issue extraordinary relief when it does not possess jurisdiction over the case. In order for the All Writs Act to apply, the court to which a request for extraordinary relief is made must possess jurisdiction over the case.
From the time the Foundation filed its notice of appeal in this case, the Ninth Circuit assumed exclusive jurisdiction over the copyright issues in this case. "Jurisdiction over the case passes from the district court to the court of appeals immediately and automatically upon a timely filing of a notice of appeal." lb Wright ~ Miller, Federal Practice & Procedure, 3949 at 358 (1977) (emphasis in original). As the court in Lidddell v. Board of Education, 73 F.3d 819, 822 (3d Cir. 1996) recently explained:
A federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction the court of appeals and divests the district court [of] its control over those aspects of the case involved in the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S. Ct. 400, 402, 74 L.Ed.2d 225 (1982). Subsequent proceedings in the district court are ordinarily ineffective.
(emphasis added); see also Keohane v. Swarco. Inc., 320 F.2d 429, 432 (6th Cir. 1963) (district court orders after the filing of a notice of appeal are a nullity).
Because the Foundation filed a notice of appeal on the copyright issues in this case, the Ninth Circuit, and not this Court, currently possesses exclusive jurisdiction over this case. Thus, Kristen Maaherra has filed her request for extraordinary relief in the wrong court. As a result of the pending appeal, the Ninth Circuit is the only court which may grant the relief requested by Kristen Maaherra.
B. The Colorado Case Is Not Based On The Same Facts Or Claims Which Gave Rise To This Case.
The events which gave rise to the Colorado case -- Eric Schaveland's and Kristen Maaherra's activities on the Internet -- began in February 1996, long after the date of the Court's final judgment in this case. The Foundation filed the Colorado action primarily as a result of Kristen Maaherra's infringement of the Foundation's trademarks (which this Court held to be valid) and her breach of the agreement which resolved the trademark issues in this case. The Colorado case simply does not arise from the same facts as this case, and does not present the same claims that were resolved by this Court's final judgment.
Kristen Maaherra's motion completely ignores the fact that because the Colorado action is not based upon the same facts as this case, it is not an attempt to relitgate the claims asserted in this case. In Cook v. Peter Kiewit Sons Co., 775 F.2d 1030 (9th Cir.), cert. denied, 476 U.S. 1183 (1986), a decision cited by Kristen Maaherra in her brief, the court enjoined the filing of further lawsuits where the plaintiff filed three consecutive lawsuits, all of which were based upon the same facts. The order that was affirmed in Cook "enjoined Cook from again adjudicating any claim based upon the same facts as those contended in Cook III, Cook II or Cook I." Id. at 1033 (emphasis added). (Footnote 3: Maaherra cites Cook in support of her contention that "[c]ourts have not hesitated to invoke their injunction powers to prevent relitigation of issues when a party has been overly litigious." Maaherra Brief, p. 4. While relitigation of claims is certainly a factor for the Court to consider, the litigiousness of the plaintiff by itself is not a factor that justifies injunctive relief. In re Oliver, 682 F.2d 443, 446 (3d Cir. 1982). End of Footnote 3).
Because the Colorado action is not based upon the same facts as the facts upon which this action was based, as a matter of law, the Foundation is not attempting to relitigate the claims asserted in this action in Colorado. There is no reason for the Court to exercise its injunctive power to protect and aid its jurisdiction over this case. (Footnote 4: The Foundation's copyright infringement claim in the Colorado action is expressly stated to depend on the outcome of the Foundation's appeal from the judgment of this Court. Therefore, the Court's power to issue an injunction pursuant to the All Writs Act, 28 U.S.C. 1651, to preserve and protect its jurisdiction, is not implicated on the facts of the Colorado action. Accordingly, it is more appropriate for the United States District Court for the District of Colorado to stay the copyright infringement count of the Colorado action than for this Court to enjoin the copyright count. Rosen v. Cascade Internat'l. Inc., 21 F.3d 1520, 1526-27 n. 13 (llth Cir. 1994) (court cannot use its injunctive powers granted by the All Writs Act unless the use of those powers is necessary to protect its jurisdiction). End of Footnote 4). Maaherra's request for extraordinary relief in this case should be denied for this reason as well. See Pennsylvania Bureau of Correction v. U.S. Marshals Serv., 474 U.S. 34, 43, 106 S.Ct. 355 (1985) (". . . th[e] [All Writs] Act empowers federal courts to fashion extraordinary remedies when the need arises...").
C. The Foundation Did Not Bring The Colorado Action In Bad Faith, Or To Harass Or Intimidate Kristen Maaherra.
Kristen Maaherra's motion falsely alleges that the Foundation acted in "bad faith" and that its purpose for filing the Colorado case is solely to "harass" or "intimidate." The only support which Kristen Maaherra offers for her unfounded allegations is the fact that the Colorado case includes a contingent copyright claim. She uses the fact that the Foundation included a contingent copyright claim in the Colorado case (which, as Kristen Maaherra knows, was only included in the complaint to protect the Foundation's rights in the event this Court's judgment is reversed) to falsely characterize the Colorado case as a "copyright infringement" case. However, Kristen Maaherra's argument completely ignores the fact that the Colorado case was brought because she has failed to comply with the agreement which settled the Foundation's trademark claims in this case by using the Foundation's marks on the Internet.
The Colorado action is not purely, or even primarily, a "copyright infringement" case. The Foundation brought the action to protect its marks and to enforce the settlement agreement. It is only because Maaherra's acts also would constitute copyright infringement in the event the Foundation's appeal in this case is successful, that the Foundation chose to assert a claim of copyright infringement rather than run the risk that it would later be precluded from asserting such a claim became the same facts also give rise to the Foundation's trademark and breach of contract claims. Mundelius Declaration, 8-17; Wharton Declaration, 4-11.
In fact, the Foundation's complaint in the Colorado case clearly asks that the court to stay the copyright infringement count pending the outcome of the Foundation's appeal from the judgment in this case. The Foundation also has filed a motion to stay the copyright infringement count in the Colorado case based on this Court's judgment and the pending appeal. Mundelius Declaration, 13, Exhibit C. Furthermore, counsel for Kristen Maaherra was informed on numerous occasions before this motion was filed that the Foundation had no desire to pursue a copyright claim in Colorado until and unless the Ninth Circuit reverses this Court's judgment. He also was told several times that the Foundation intend to file a motion to stay the copyright claim in Colorado. (Footnote 5: The same counsel who represents Maaherra in this case also represents two of the defendants in 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 infringement, unfair competition, trademark dilution and copyright claims based on the defendants' use of a "1-800-2-URANTIA" telephone number and other promotional and marketing activities in connection with the sale of their competing version of The Urantia Book. The Foundation also filed a stay motion in that case and clearly informed all parties and their counsel of the prophylactic reasons why the Foundation brought a copyright claim before the resolution of the Ninth Circuit appeal. Mundelius Declaration, 17-19; Wharton Declaration, 10-11. End of Footnote 5).
The Foundation, through counsel, also asked Kristen Maaherra to consent to the requested stay or to agree that the Foundation can voluntarily dismiss its copyright claim in this action without waiving the right to assert the claim in the event that the Ninth Circuit reinstates the Foundation's copyright. Mundelius Declaration, 16; Wharton Declaration, 3-11. However, Kristen Maaherra refused to resolve the issue by agreement. Id.
In her motion, Maaherra contends that the assertion of a copyright infringement claim is vexatious, i.e., "[w]ithout reasonable or probable cause or excuse." Maaherra Brief, p.4. However, as explained fully in the Foundation's brief in support of its motion to stay the copyright infringement count, see Mundelius Declaration, Exhibit C, the "excuse" for including a count for copyright infringement in the Colorado action is to avoid any possible merger and bar or waiver defense in a subsequent copyright case arising from Kristen Maaherra's activities on the Internet. Mundelius Declaration, 14. (Footnote 6: Maaherra also asserts that the copyright infringement claim was brought to harass her and to waste judicial resources. Maaherra Brief, p. 5. However, given the Foundation's request that the prosecution of this claim be stayed pending the resolution of its appeal, these assertions are completely meritless. As the Mundelius Declaration, 15, shows, the Foundation has no intention of actively seeking to enforce a claim of copyright in The URANTIA Book in the Colorado action until after the Ninth Circuit decides the pending appeal. End of Footnote 6).
Kristen Maaherra's contention that the Colorado action is vexatious and was only brought to harass her is also premised on the fact that this is the second time the Foundation has sued her. However, as the Jones v. City of Buffalo, 867 F. Supp. 1155, 1169 (W.D.N.Y. 1994) court held:
[e]xcessive litigiousness alone does not justify such an order, it must also be found that "the courts are being used as a vehicle of harassment by a 'knowledgeable and articulate experienced pro se litigant" who asserts the same claims repeatedly in slightly altered guise.
Kristen Maaherra has not made a showing sufficient to raise even an inference of harassment on the part of the Foundation. The plain facts speak to the contrary conclusion: the Colorado action is not a mere repeat of this case, and the Foundation has acted in good faith at every turn. Mundelius Declaration, 12-16; Wharton Affidavit, 3-11. The mere fact that Kristen Maaherra does not believe she has violated the parties' agreement to settle the trademark issues in this case, and that her activities on the Internet do not infringe upon the Foundation's marks, does not mean that the Foundation's allegations in the Colorado case are "frivolous."
In support of her motion, Kristen Maaherra offers nothing more than her unsubstantiated beliefs as proof that the Foundation's complaint in the Colorado action was motivated by an improper purpose or bad faith. The Foundation's showing in response to this motion conclusively refutes any notion that the Colorado case was filed for an improper purpose. Accordingly, there is no basis for Kristen Maaherra's request that this Court exercise its extraordinary injunctive powers to protect her from a "bad faith" or "vexatious" action. (Footnote 7: In fact, Kristen Maaherra's motion does not ask this Court to enjoin the Colorado action in its entirety. It only asks this Court to enjoin the Foundation from doing what it has no intention of doing -- actively pursuing a copyright claim in Colorado before the Ninth Circuit's decision. Even if her motion were granted, it would not end the Colorado case. Thus, her motion serves no purpose.
D. Because The Foundation Has Asked The Colorado Court To Stay The Copyright Claim Until The Appeal Is Decided, The Requested Injunction Serves No Purpose.
As shown above, the Foundation has filed a motion in the Colorado case to stay its copyright infringement claim pending the Ninth Circuit's resolution of its appeal from this Court's judgment. The Foundation acknowledges in its brief in support of that motion that it will dismiss the copyright infringement claim unless its appeal is successful. Mundelius Declaration, Exhibit C, p. 8. Moreover, counsel for Maaherra knew prior to the filing of this motion that (1) the Foundation wished to dismiss the copyright infringement claim in the Colorado action in return for Maaherra's agreement that it could be reinstated in the event the Foundation's appeal is successful, and (2) the Foundation was preparing to ask the court in the Colorado action to stay the count for copyright infringement pending the appeal. Id., 16; Wharton Declaration, 3-11. Nevertheless, rather than simply agreeing to the Foundation's proposed stipulation of dismissal or consenting to the requested stay, Kristen Maaherra instead requested that this Court enjoin the prosecution of the copyright infringement claim in the Colorado action. See Maaherra Brief, pp. 9-10 ("[b]y requesting the court to enjoin further litigation only of copyright infringement, Maaherra requests nothing more than what the principles of res judicata and collateral estoppel would afford") (emphasis added). (Footnote 8: In fact, a motion for summary judgment in the Colorado case based upon a res judicata or collateral estoppel defense would result in relief that would grant Kristen Maaherra much more than she settles from this Court. Her assertion of a re judicata or collateral estoppel defense in the Colorado action would result in the dismissal of the Foundation's copyright claim on the merits. However, Kristen Maaherra only asks this Court to enjoin the Foundation from pursuing a copyright claim in Colorado -- which the Foundation has no intention of doing until the Ninth Circuit decides the pending appeal. End of Footnote 8). By making such an unnecessary and repetitive request, it is Maaherra who has wasted the Court's and the Foundation's resources.
The case law relating to enjoining actions filed in other courts shows that such relief is granted only in extreme cases. For instance, in Wood v. Santa Barbara Chamber of Commerce. Inc., 705 F.2d 1515, 1524 (9th Cir. 1983), cert. denied, 465 U.S. 1081 (1984), a case relied on by Maaherra, the court ordered a bar on relitigation of claims coextensive with the scope of issues precluded by collateral estoppel. In Wood, the court noted that the relief was necessitated because of exigent circumstances:
[t]o understand the narrowness of our recent decision, it is important to understand the scope and nature of Wood's litigiousness. From a simple pro se employment dispute, Wood has produced a morass of litigation, into which he has pulled over 250 defendants and, at one point, over 30 district courts.
705 P.2d at 1525 (emphasis added). This case is nothing like the outrageous circumstances presented by the Wood case and the other decisions cited in Kristen Maaherra's brief, and does not warrant the extraordinary relief awarded in those cases. As shown above, the Foundation is not attempting to relitigate a claim previously decided by this Court, and does not assert a copyright claim in Colorado in bad faith or for a vexatious purpose. Moreover, the Foundation has moved for a stay in the Colorado action which would accomplish the exact same result that Kristen Maaherra seeks to accomplish with this motion. For these reasons, the requested injunction serves no purpose and the Court should deny Kristen Maaherra's motion.
III. CONCLUSION
For all the foregoing reasons, the Foundation the Court should deny Kristen Maaherra's
motion for a protective injunction.
DATED: October 14, 1996.
Respectfully submitted,
Gordon Dean Booth, Jr.
Scott A. Wharton
Attorneys for Plaintiff
*****************************************************
October 14, 1996
(Arizona) Declaration of Foundation Attorney Scott Wharton.
DECLARATION OF SCOTT A. WHARTON
Under penalty of perjury, SCOTT A. WHARTON declares as follows:
1. My name is Scott A. Wharton. 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. I make this declaration in opposition to defendant Kristen Maaherra's motion for protective injunction in this action.
2. I am one of the attorneys for URANTIA Foundation ("Foundation") in both this case and another case pending in a federal district court in Colorado, captioned URANTIA Foundation v. Eric Schaveland and Kristen Maaherra, in the United States District Court for the District of Colorado, Case No. 96-D-2004 (1996). I also am one of the attorneys for the Foundation in a case pending in a district court in Illinois 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).
3. The same lawyer, Joe Lewis, represents Kristen Maaherra in both this case and the Colorado case. He also represents two of the defendants, Fifth Epochal Fellowship and Uversa Press, in the Illinois case. Since early September, I have spoken with Joe Lewis on several occasions concerning the reasons why the Foundation filed the Colorado case.
4. I explained to Joe Lewis that the Colorado case was filed because of Kristen Maaherra's and Eric Schaveland's (Kristen Maaherra's husband) use of the Foundation's marks to identify an Internet domain site and their use of the marks on their home pages on the Internet. I also informed him that the Foundation filed the Colorado case as a result of Kristen Maaherra's failure to abide the settlement agreement, which resolved the trademark issues in this case. I made it clear to Joe Lewis during our conversations that the Colorado case was filed as a trademark case arising from Kristen Maaherra's and Eric Schaveland's activities on the Internet, and that the Foundation has no intention of pursuing a copyright claim arising out of their activities on the Internet until, and unless the Ninth Circuit reverses this Court's judgment.
5. The Foundation's complaint in the Colorado case clearly asks the court to stay the Foundation's copyright claim in that case until the Ninth Circuit decides the pending appeal. During my first conversation with Joe Lewis after Kristen Maaherra was served with the complaint in the Colorado case, I told him that the Foundation intended to immediately file a formal motion to ask the Colorado court to stay the Foundation's copyright claim. The only reason why the Foundation did not file its stay motion within days after its complaint was filed is that Kristen Maaherra requested, and the Foundation granted her, a thirty day extension to answer the complaint because she was out of town and could not assist her counsel with the preparation of an answer. A copy of Kristen Maaherra's motion for an extension to answer the Colorado complaint is attached hereto as Exhibit A.
6. During our conversations, I also informed Joe Lewis that the only reason why the Foundation asserts a copyright claim in the Colorado 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. I suggested to Joe Lewis that we agree to the entry of an order in the Colorado case staying all proceedings on the Foundation's copyright claim pending the Ninth Circuit's decision, or that we agree to allow the Foundation to 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.
8. During our initial conversation, Joe Lewis took no position on the issue of whether his client would consent to an order staying all proceedings on the Foundation's copyright claim until the Ninth Circuit decides the pending appeal, or to a voluntary dismissal on the terms described in the preceding paragraph. However, in a subsequent conversation, Joe Lewis stated that his client will not consent to the requested stay or a voluntary dismissal and that his client intends to oppose the Foundation's stay motion in the Colorado case.
9. Instead of simply consenting to the entry of an order staying the Foundation's copyright claim until the Ninth Circuit decides the pending appeal, or to a voluntary dismissal on the terms described above, defendant Kristen Maaherra filed her "motion for protective injunction" and unnecessarily asks this Court to become involved in the Colorado dispute Defendant Kristen Maaherra's "motion for protective injunction" asks this Court to enjoin the Foundation from pursuing its copyright claim in the Colorado case, which the Foundation itself has asked the Colorado court to do both in its complaint and by way of its stay motion.
10. The Foundation has recently agreed to settle the Illinois case and, as part of the settlement the defendants in that case (two of whom are represented by the same counsel who represents the defendant in this case), the parties agreed that the Foundation's copyright claim will be dismissed without prejudice to the Foundation's right to assert a copyright claim after the Ninth Circuit decides the Foundation's appeal from this Court's judgment, and the defendants have specifically agreed that the pendency of the Illinois case will not bar a future copyright claim.
11. Both Joe Lewis and I were present at a settlement conference in the Illinois case held in chambers on September 17, 1996, during which I clearly explained to the Illinois district judge that the Foundation has no intention of pursuing a copyright claim until the Ninth Circuit decides the appeal. I also explained that the only reason why the copyright claim was included in the Illinois case was 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.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Scott A. Wharton
********************************************************
October 14, 1996
(Arizona) Declaration of Foundation trustee Pat Mundelius.
Declaration of Patricia S. Mundelius
Under penalty of perjury, PATRICIA S. MUNDELIUS declares as follows:
1. My name is Patricia S. Mundelius. 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. I make this declaration in opposition to defendant Kristen Maaherra's motion for protective injunction in this action.
2. I am one of five Trustees of the plaintiff, URANTIA Foundation, an Illinois charitable trust, and I am the President of the Board of Trustees.
3. In February, 1996, the Foundation's Trustees learned that Eric Schaveland and Kristen Maaherra (who are husband and wife) were using "urantia.com" as an Internet domain name. The domain name is registered in the name of a fictitious company identified as "Urantia" located at Eric Schaveland and Kristen Maaherra's home address in Jamestown, Colorado.
4. At the time Eric Schaveland procured the "urantia.com" Internet domain name, the Foundation was already on-line with an Internet service which uses "urantia.org" as its domain name.
5. Since February, 1996, Eric Schaveland and Kristen Maaherra also have created and are using one or more "home pages" (that is, computer bulletin boards on the Internet) such as "www.urantia.com'' and "www.CSN.net/-Schave/," which prominently display the Foundation's URANTIA and concentric circles symbol marks on the Internet.
6. The Foundation has advised Eric Schaveland that his and Kristen Maaherra's use of the Foundations marks on the Internet is not authorized by the Foundation and asked him to discontinue using the Foundation's marks to identify his and Kristen Maaherra's Internet site and from displaying the Foundation's marks on their home pages. However, although the company which controls the use of Internet domain names has placed the "urantia.com" site on "hold" status, Eric Schaveland and Kristen Maaherra continue to use the Foundation's marks on their home pages and are also using the Internet to actively encourage others to use the Foundation's marks.
7. On their home pages, Eric Schaveland and Kristen Maaherra also offer 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 from the Internet.
8. In March, 1995, the Foundation and Kristen Maaherra settled the non-copyright issues in this case and entered into a written settlement agreement which defines their rights and obligations vis-a-vis the non-copyright claims and counterclaims that were asserted by the parties in this case. A true and correct copy of the settlement agreement is attached hereto as Exhibit A.
9. Pursuant to the settlement agreement, Kristen Maaherra agreed to limit her future activities by, among other things, agreeing not to use the term "URANTIA," or the blue concentric circles symbol in connection with the promotion or dissemination of any books, study aids, or any other type of publication, regardless of the form or media, and specifically including any electronic medium such as the Internet.
10. The Foundation and its counsel determined that Kristen Maaherra's activities on the Internet violate the terms of the settlement agreement, and also constitute trademark infringement and unfair competition, and are diluting the value and strength of the Foundation's marks.
11. Because Kristen Maaherra and Eric Schaveland were continuing to engage in activities on the Internet which infringe the Foundation's marks, on August 27, 1996, the Foundation filed suit in the United States District Court for the District of Colorado for trademark infringement, unfair competition, dilution, and for Kristen Maaherra's breach of the settlement agreement which provided the basis for this Court's dismissal of the trademark claims and counterclaims in this case. A true and correct copy of the complaint in the Colorado case is attached hereto as Exhibit B.
12. The Foundation's complaint in the Colorado case also includes a claim for copyright infringement but specifically states that the copyright claim is contingent on the outcome in the Foundation's appeal from this Court's final judgment which declares the Foundation's copyright in and to The URANTIA Book to be invalid and unenforceable. The Foundation's complaint in the Colorado case also clearly states that this Court has declared the Foundation's copyright to be invalid and asks the Colorado court to stay the copyright claim until the Ninth Circuit decides the Foundation's appeal.
13. On October 7, 1996, the Foundation filed its motion for partial stay in the Colorado case which asks the Colorado court to stay all proceedings on the Foundation's copyright claim until the Ninth Circuit decides the pending appeal from this Court's judgment. True and correct copies of the Foundation's motion and supporting brief are attached hereto as Exhibit C.
14. The Foundation's stay motion clearly explains that the only reason the Foundation included a copyright count in the Colorado case is because all of the Foundation's claims arise from Kristen Maaherra's and Eric Schaveland's activities on the Internet. Based on the advice of counsel, the Foundation decided to assert a copyright claim and immediately seek a stay of the claim pending the Ninth Circuit's decision, so that, in the event the Foundation prevails on appeal and its copyright is reinstated, Kristen Maaherra and Eric Schaveland will not be able to argue that the Foundation somehow waived any copyright claim arising from the same facts because the Foundation did not assert such a claim in the Colorado case that currently is pending. In light of Kristen Maaherra's and Eric Schaveland's continuing use of the Foundation's marks on the Internet, the Foundation cannot wait until after its copyright appeal is decided to pursue its claims against them.
15. The Foundation has no intention of actively seeking to enforce a claim of copyright in and to The URANTIA Book until the Ninth Circuit decides the pending appeal. In the event the Foundation's appeal is unsuccessful, and further review by the Supreme Court is not available or the Foundation decides to forego any right to seek further review of this Court's judgment, the Foundation will agree to dismiss its copyright claim.
16. The Foundation did not assert a copyright claim against Kristen Maaherra in the Colorado case to "harass"' or "intimidate" her as her counsel suggests in Kristen Maaherra's motion. The Foundation has no desire to be involved in further litigation with Kristen Maaherra or anyone else. However, in light of Kristen Maaherra's failure to abide by the terms of the settlement agreement and her and her husbands use of the Foundation's marks on the Internet, the Foundation's Trustees had no choice but to file suit in Colorado to protect and enforce the Foundation's rights in its marks and under the settlement agreement. The Foundation, through counsel, has asked Kristen Maaherra to agree that the Foundation can voluntarily dismiss its copyright claim without waiving the right to assert a copyright claim if the Ninth Circuit reinstates the Foundation's copyright, but she refuses to simply agree to allow the Foundation to dismiss its copyright claim, with the understanding that the Foundation will retain all rights to re-assert a copyright claim as a result of her activities on the Internet after the appeal is decided.
17. Kristen Maaherra's motion also falsely claims that a lawsuit which the Foundation filed in an Illinois district court against the Fifth Epochal Fellowship, Uversa Press and Jesusonian Foundation also was brought to "harass" those defendants. In fact, the Foundation has recently agreed to settle the Illinois case and, as part of the settlement the defendants have agreed that the Foundation's copyright claim will be dismissed without prejudice to the Foundations's right to assert a copyright claim after the appeal is decided, and the defendants have specifically agreed that the pendency of the Illinois case will not bar a future copyright claim. A copy of the complaint in the Illinois action is attached hereto as Exhibit D.
18. The Illinois suit was brought by the Foundation as a result of, among other things, the defendant's use of the Foundation's "URANTIA" mark as part of a toll free number included in advertising materials distributed at the American Booksellers' Association ("ABA") Convention, which was held in Chicago from June 15, 1996, through June 17, 1996, and as a result of the defendant's unfair and deceptive trade practices in connection with the promotion and dissemination of their edition of The URANTIA Book. For the same reasons that a copyright claim was included in the Colorado lawsuit against Kristen Maaherra, the Foundation asserted a copyright claim against the defendants in the Illinois suit. As in the Colorado case, the Foundation's complaint clearly disclosed the status of the Foundation's copyright and requested a stay of its copyright claim until the Ninth Circuit decides the Foundation's appeal. The Foundation's complaint and stay motion in the Illinois case are attached hereto as Exhibit E.
19. Two of the defendants in the Illinois case are represented by Joe Lewis, the same counsel who represents Kristen Maaherra in this case. Both Joe Lewis and I were present at a settlement conference in the Illinois case held in chambers on September 17, 1996, during which the Foundation's counsel clearly explained to the Illinois district judge that the Foundation has no intention of pursuing a copyright claim until the Ninth Circuit decides the appeal, and that the copyright claim was only included in the Illinois case so that no one could claim that the Foundation waived the copyright claim by not asserting it at the same time that the Foundation asserted the trademark claims which arise from the same facts.
20. On October 6, 1996, I spoke with Kristen Maaherra by phone to assure her that, as stated in the Foundation's Colorado complaint, the Foundation has no intention of actively pursuing a new copyright claim against her in Colorado before the Ninth Circuit decides the Foundation's appeal in this case. I explained to her that only reason a copyright claim was included in the Colorado complaint was to preserve a future claim for copyright infringement arising out of her activities on the Internet in the event the Foundation's appeal is successful and this Court's judgment is reversed.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Patricia S. Mundelius
*******************************************************
October 24, 1996
(Arizona)
Defendant KM's Reply Brief in Support of Motion for Protective Injunction.
DEFENDANT'S REPLY BRIEF IN SUPPORT OF MOTION FOR PROTECTIVE INJUNCTION
The Foundation's Brief provides no reason for the Court to deny Maaherra and others protection from harassment by virtue of new law suits being filed by the Foundation.
The Foundation argues that it is not litigious. However, it claims to have known about the allegedly wrongful activity since February of 1996 and during that time made no effort to contact Maaherra's attorney to resolve the matter other than through litigation. (Lewis Declaration, 1 3, submitted herewith.) Nor was Maaherra herself contacted except as stated in Maaherra's Affidavit dated September 26, 1996, paragraph 7.
The Foundation also argues that Maaherra's Motion was unnecessary because the Complaint in the Colorado action notes that the copyright claim should be stayed. What the Foundation fails to mention is that the Complaint specifically requests "that the Court enter a 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), Exhibit 5 in support of Maaherra's Motion, emphasis added; Maaherra Affidavit of October 23, 1996, paragraph 2, submitted herewith.) 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, paragraph 5).
The Foundation further argues that the Colorado case is not based on the same "claim" which gave rise to this case. Even if the current activity were technically a separate "claim," the work distributed by Maaherra's husband is the very same electronic index of the Urantia Book which was the subject of this case. The relief sought by the Foundation in this case would have precluded Maaherra from this distribution of the text of the Urantia Book. Thus, the Foundation's attempt to distinguish the two cases is disingenuous.
This Court has already noted that a stay of the judgment in this case would have eviscerated this Court's decision. (Order of September 29, 1995 at 2.) Absent protection from this Court, the Foundation will be able to effectively eviscerate the decision by intimidation, harassment, and additional litigation which will make it difficult or impossible for Maaherra to continue her religious service projects. (Maaherra Affidavit of October 23, 1996, paragraph 6, 8.) Consequently, this Court must exercise its injunctive power to effectuate its judgment in this case.
The Foundation suggests that the filing of litigation against people is of no significance, as long as the Foundation decides it want to have the matter stayed. However, involvement in litigation is a significant, disruptive and undesired event to people. (See Maaherra Affidavit of October 23, 1996, paragraph 7, 8.) The results are not Exactly the same" as the Foundation argues. (Brief at 13.) Maaherra need not have an unresolved case (even one that has been stayed) hanging over her head. The impingement caused by the additional litigation is contrary to Maaherra's First Amendment rights to distribute a public domain work which has previously been recognized by this Court (Order of September 29, 1995 at 3.)
Moreover, even apart from the Colorado action, Maaherra has indicated that she is working on other study aids using the text of the Urantia Book. (Maaherra's Affidavit of October 23, 1996 paragraph 4, 8.) Under the Foundation's approach, this current activity would be a totally new claim which would not be covered by either the Arizona action or the Colorado action. Absent protection from this Court, the Foundation could bring yet additional litigation to intimidate Maaherra and others from supporting and engaging in these projects.
The Foundation cites the Wright & Miller Treatise for the proposition that this Court does not have jurisdiction to grant the requested relief. (Footnote 1: The Foundation's argument that this Court has no jurisdiction to deal with matters relating to its copyright is quite puzzling since the Foundation has chosen to bring the same issues before an entirely new court in Colorado. End of Footnote 1.) However, the Treatise indicates that district courts have the "power to resolve matters that do not implicate the original decision on the merits after a notice of appeal has been filed." 16 Wright & Miller, Federal Practice & Procedure 3949, Supplement at 437. The Treatise sets forth a variety of circumstances in which a district court has jurisdiction to act after a notice of appeal has been filed, including the residual jurisdiction to enter order to assist in maintaining the status quo pending disposition of an appeal. Id.
There is ample authority on which this Court can rely in granting the requested relief. For example, in Kidder Peabody & Co. v. Maxus Energy Corp., 925 P.2d 566 (2d Cir. 1991) the Court of Appeals held that the District Court had jurisdiction to issue an injunction against further litigation of an issue involved in an appeal. The Court relied, in part, on Federal Rule of Civil Procedure 62© which grants the court broad authority to grant an injunction pending appeal. The rule is applicable in the present case because the Foundation has appealed from this Court's dissolution of a preliminary injunction.
The case of Hayward v. Clay, 456 P. Supp. 1156 (S.C. 1977) also involved an injunction against litigation of an issue that was then before a court of appeals. The court reasoned that an injunction was necessary "to protect and effectuate its judgment and preserve the status quo." The court noted that an injunction was appropriate because the positions in which the Court had placed the parties was in danger of being negated by further litigation during the pendency of an appeal. 456 P. Supp. at 1160. Thus, the Foundation should be enjoined against asserting claims of copyright infringement during the pendency of the appeal from this Court's judgment.
The Foundation's pleas that it is not quite as bad as some of the litigants in the cases cited by Maaherra do not justify its actions. Because the Foundation's litigious activity will undermine this Court's decision denying the Foundation a stay of this Court's judgment, an injunction is proper and appropriate in this case. See Sperry Rand Corporation v. Rothlin, 288 F.2d 245 (2d Cir. 1961).
For the above reasons, and to give force and effect to this Court's judgment, a protective injunction should be granted.
Respectfully submitted,
Joseph D. Lewis
John M. Randolph
Attorneys for Defendant
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October 23, 1996
(Arizona)
Declaration of Joseph D. Lewis.
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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October 23, 1996
(Arizona)
Defendant KM's Declaration.
AFFIDAVIT OF KRISTEN MAAHERRA
1. 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:
I'm working on other Urantia projects -- most notably a multi-media CD.
I don't want to be involved in Plaintiff Foundation's lawsuits.
Phone Call from Foundation Trustee
1. When Plaintiff Foundation trustee, 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). Her attitude was one of "astonishment" that I would go to the Arizona Court with a Motion that "serves no purpose." I reminded Plaintiff trustee that all I ever did was create and give away a replete index of the Urantia Papers. I asked her if giving away an index was such a "crime" I needed to be sued twice for it. I suggested that the Foundation drop the lawsuit or even just the copyright part of the lawsuit. She chuckled at me when I suggested it. The Foundation refused to withdraw the suit.
Plaintiff Foundation's Third Request for an Injunction
2. From reading Plaintiff Foundation's Complaint against me, the "stay" they are asking for on page 14, (c), of their Complaint, has nothing to do with the claims for relief they are asking 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 Defendants ... to cease and desist from publishing the text
of the Urantia Book on the Internet." In other words, they are going to try for another injunction against me for copyright. The Foundation did not "stay" their claims for relief in (d). Plaintiff Foundation asked this Court for an injunction and were turned down; they asked the Appeals Court for an injunction and were turned down; now they are asking a Colorado Court for the same thing. Plaintiff Foundation actually has the gall to ask for a "preliminary and a permanent injunction" for copyright while they are "court-shopping" for a better Order. They are trying to get around this Court's Order because they don't like it. I believe the Foundation should be stopped from misusing the legal system in this way.
3. With the Urantia Papers in public domain, Plaintiff Foundation is in the position of suing the public for walking in a National Forest. Plaintiff Foundation explains that they must sue the public, because Plaintiff Foundation hopes to own the National Forest some day. With the Urantia Papers in public domain, my rights to the Papers are First Amendment and Religious Freedom rights. The Urantia Papers are the sacred scriptures of my religion, and the Foundation is misusing the Court system in trying to get various Courts to tell me I can't evangelize the Papers.
Service Projects
4. Now that this Court has held that the Urantia Papers are in the public domain, I would like to continue with various service projects utilizing the text of the Urantia Papers. I would like to, and plan to, distribute the electronic index free of charge, to anyone who might want a copy. In addition to continuing to distribute the study aid that was the subject of the copyright case with the Foundation that put the Urantia Papers in public domain, I would like to finish the multi-media CD of the Urantia Papers I am currently working on. Plaintiff Foundation's new Complaint 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.
Jursidiction
5. Plaintiff Foundation claims that only the Appeals Court has jurisdiction now over the copyright -- not this Court. Yet Plaintiff Foundation has asked a Colorado Court to grant them injunctive relief for copyright: "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." Are the Urantia Papers Still in Public Domain? Confusion Among Urantians
6. 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.
I Don't Like Lawsuits
7. If you've ever been sued by your religious group, you know it's not pleasant. 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. The Foundation is supposed to be part of a religious group, followers of Jesus, who ought to say, "Thank you," for help spreading the revelation. Instead, with millions of dollars of "scorched earth" litigation, they try to burn me as a warning to others who might want to actually try to live the teachings of Jesus as so beautifully expressed in the Urantia Papers. I'm working on service projects related to the Urantia Papers; I do not want to be involved in lawsuits; I don't want to spend my time working on lawsuits. I don't want to be sued again for the multi-media CD project (which uses the text of the first printing of the Urantia Papers).
8. I hate this waste of time and energy and money when we could be spreading the revelation. I think the intent of the Foundation's new Complaint is to stop my CD project. The Foundation with its millions goes on and on, papering anyone they can't control with lawsuits and harassment and expense. I think the trustees are misguided and sadistic -- which means I think they enjoytrying to ruin believers' lives by abusing the law. Being sued is stressful, expensive, and time-consuming. I planned to work on the CD exclusively this fall. I had to set aside the CD project to deal with the new lawsuit. And now I am concerned that they will file yet another lawsuit when the CD is finished.
I declare under penalty of perjury the foregoing to be true.
Dated 25 October, 1996.
Kristen Maaherra
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December 10, 1996
(Arizona)
Defendant KM's Supplemental Memorandum in Support of her Motion for Protective Injunction.
DEFENDANT KRISTEN MAAHERRA'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF HER MOTION FOR PROTECTIVE INJUNCTION
This Supplemental Memorandum is necessitated by the Supplemental Memorandum filed by Urantia Foundation.
In its Supplemental Memorandum, the Foundation argues that the motion before this Court is now moot, because Kristen Maaherra is defending herself in the Colorado civil action. Such an argument is absurd.
The instant motion was brought so that Maaherra would not have to expend resources defending the claim. Unfortunately, until this Court acts, Maaherra must actively defend herself. (Footnote 1: The Foundation has opposed Maaherra's Motion for Summary Judgment arguing, inter alla, that the Colorado case presents a different cause of action and that the doctrine of res judicata is inapplicable. The Foundation does concede that some application of the doctrine of collateral estoppel may be applicable. End of Footnote 1). This Court and the Ninth Circuit have rejected the Foundation's request for a stay of the Judgment. The requested injunction should be granted to give that Judgment force and effect.
Moreover, in view of the Foundation's belief that it must bring new litigation over each Urantia Book project that Maaherra may get involved with, an injunction will be necessary to protect Maaherra and others from additional copyright litigation relating to the various other project in which she is involved. (See Maaherra Declaration of September 26, 1996 at paragraph 4.)
For the above reasons, Maaherra's Motion is not moot, and an injunction is needed now, more than ever.
Respectfully submitted,
Joseph D. Lewis
Tomas M. Quigley
Attorneys for Defendant
Date: 12/10/96
Last Updated April 9, 1997 by Kristen Maaherra