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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 DONALD E. MORISKY, CASE NO. 2:21-CV-1301-RSM-DWC 11 Plaintiff, v. ORDER GRANTING MOTION TO 12 STAY AND DENYING MMAS RESEARCH LLC, et al., MISCELLANEOUS MOTIONS 13 Defendants. 14
15 Currently pending before the Court are Defendants’ Motion Requesting Leave for 16 Discovery (Dkt. 199), Plaintiff’s Motion to Stay (Dkt. 206), Defendants’ Motion for 17 Reconsideration (Dkt. 216), and Defendants’ Motion to Strike (Dkt. 219). 18 After consideration of the relevant record, the Motion to Stay (Dkt. 206) is granted and 19 this matter is stayed pending the outcome of MMAS Research, LLC, et al. v. The Charité, et al., 20 Case No. 23-55202 (9th Cir.). As this matter is now stayed, the Court declines to enter an 21 amended scheduling order and Defendants’ Motion Requesting Leave for Discovery (Dkt. 199) 22 is denied without prejudice with the right to refile when the stay is lifted. Defendants’ Motion for 23 Reconsideration (Dkt. 216) and Motion to Strike (Dkt. 219) are denied. 24 1 I. Motion to Stay (Dkt. 206) 2 In the Motion to Stay, Plaintiff requests the Court stay this action pending a ruling by the 3 Ninth Circuit in MMAS Research, LLC, et al. v. The Charité, et al., Case No. 23-55202 (9th 4 Cir.). Dkt. 206. Plaintiff states Defendant MMAS Research sued Charité in the Central District
5 of California for alleged infringement of the Morisky Widget copyright, which is the copyright at 6 issue in this case. Id. The district court dismissed MMAS Research’s second amended complaint 7 with prejudice because Plaintiff Morisky, not MMAS Research, owns the copyrights at issue. See 8 Dkt. 202-1. MMAS Research has appealed the district court’s order. Dkt. 206. Plaintiff asserts 9 that, because this case involves the same issues as MMAS Research, LLC, et al. v. The Charité, et 10 al., this matter should be stayed pending the resolution of MMAS Research, LLC, et al. v. The 11 Charité, et al. Id. Defendants do not oppose the stay if the Court finds it appropriate; however, 12 Defendants state the stay will not promote economy or serve a judicial purpose. Dkt. 211. 13 “The power to grant a stay in pending litigation is incidental to the power inherent in 14 every court to control the disposition of the cases on its docket.” Landis v. North Am. Co., 299
15 U.S. 248, 254–55 (1936). “A trial court may, with propriety, find it is efficient for its own docket 16 and the fairest course for the parties to enter a stay of an action before it, pending resolution of 17 independent proceedings which bear upon the case.” Mediterranean Enterprises, Inc. v. 18 Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983); Leyva v. Certified Grocers of California 19 Ltd., 593 F.2d 857, 863–64 (9th Cir.1979); Ass’n of Irritated Residents v. Fred Schakel Dairy, 20 634 F. Supp. 2d 1081, 1094 (E.D. Cal. 2008). In deciding whether to grant a stay, courts consider 21 “the possible damage which may result from the granting of a stay, the hardship or inequity 22 which a party may suffer in being required to go forward, and the orderly course of justice 23 measured in terms of the simplifying or complicating of issues, proof, and questions of law
24 1 which could be expected to result from a stay.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 2 1962). 3 Here, a lawsuit is pending before the Ninth Circuit that could be, at a minimum, 4 persuasive authority in this case. Because the Ninth Circuit’s ruling in MMAS Research, LLC, et
5 al. v. The Charité, et al., could impact the Court’s disposition of the pending proceedings, 6 waiting until the issues on appeal are decided will avoid potential unnecessary litigation and may 7 provide guidance for this Court. Thus, the Court finds a stay of the entire matter pending the 8 Ninth Circuit’s decision serves the interests of fairness and “promote[s] economy of time and 9 effort” for the Court and the parties. Kelleher, 467 F.2d at 244. 10 Accordingly, Plaintiff’s Motion to Stay (Dkt. 206) is granted. The Court orders this entire 11 matter be stayed pending resolution of MMAS Research, LLC, et al. v. The Charité, et al., which 12 is currently pending before the Ninth Circuit. The parties are directed to file a joint status report 13 within fourteen (14) days of resolution of MMAS Research, LLC, et al. v. The Charité, et al. 14 While this matter is stayed, motions will not be considered by the Court. Any motion filed with
15 the Court during the stay may be denied as moot. 16 II. Motion Requesting Leave for Discovery (Dkt. 199) 17 On October 31, 2023, the Court directed the parties to file a joint status report proposing 18 new pretrial deadlines – including allowing an additional discovery period – and a new trial date. 19 Dkt. 195. The parties filed a joint status report on December 1, 2023. Dkt. 201. Defendants also 20 filed a motion requesting leave to conduct additional discovery. Dkt. 199. As the Court has 21 stayed this entire matter, the Court declines to enter a new scheduling order and set new 22 discovery deadlines. Therefore, Defendants’ Motion Requesting Leave for Discovery (Dkt. 199) 23 is denied without prejudice. After MMAS Research, LLC, et al. v. The Charité, et al. is resolved,
24 1 the parties shall meet and confer regarding a new scheduling order, including a proposal on any 2 additional discovery and file a new joint status report. If the parties are unable to agree on 3 additional discovery, Defendants may file a renewed motion requesting leave to conduct 4 additional discovery.
5 III. Motion for Reconsideration (Dkt. 216) 6 On January 4, 2024, Defendants filed a Motion for Reconsideration seeking 7 reconsideration of the Court’s decision to deny Defendants’ motion to stay the imposition of 8 sanctions. Dkt. 216; see also Dkt. 214. 9 Pursuant to Local Civil Rule 7(h), motions for reconsideration are disfavored and will be 10 denied absent a showing of manifest error or a showing of new facts or legal authority which 11 could not have been presented earlier with reasonable diligence. Defendant asserts the Court 12 committed manifest error when it provided inconsistent rulings. Dkt. 216. Defendants assert the 13 Court suggested Defendants forego an appeal of the sanctions order but move to stay payment 14 until after the trial. Dkt. 216. Defendants contend that they followed the steps outlined by the
15 Court and filed a motion to stay, but the Court denied their motion. Id. 16 The Court did not direct Defendants to forego an appeal or move for a stay. Rather, the 17 Court recommended that a final judgment on the Court’s order awarding sanctions not be issued. 18 Dkt. 194. The Court noted, but did not recommend, that Defendants could seek a stay of the 19 Court’s Order Awarding Fees and Costs. Id. Again, in the Order on Motions for Sanctions and 20 Stay, “[t]he Court note[d] that nothing in th[e] Order prohibit[ed] Defendants from filing a 21 motion seeking relief from the deadline.” Dkt. 195 at 18, n.4. The Court did not recommend, nor 22 direct Defendants to forego filing an appeal. Further, the Court did not recommend, nor direct 23 Defendants to file a motion to stay the imposition of sanctions until the conclusion of the trial in
24 1 this case. And, at no time did the Court indicate it would grant such a motion. Rather, the Court 2 affirmed that Defendants could pursue available options, such as a motion to stay.
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 DONALD E. MORISKY, CASE NO. 2:21-CV-1301-RSM-DWC 11 Plaintiff, v. ORDER GRANTING MOTION TO 12 STAY AND DENYING MMAS RESEARCH LLC, et al., MISCELLANEOUS MOTIONS 13 Defendants. 14
15 Currently pending before the Court are Defendants’ Motion Requesting Leave for 16 Discovery (Dkt. 199), Plaintiff’s Motion to Stay (Dkt. 206), Defendants’ Motion for 17 Reconsideration (Dkt. 216), and Defendants’ Motion to Strike (Dkt. 219). 18 After consideration of the relevant record, the Motion to Stay (Dkt. 206) is granted and 19 this matter is stayed pending the outcome of MMAS Research, LLC, et al. v. The Charité, et al., 20 Case No. 23-55202 (9th Cir.). As this matter is now stayed, the Court declines to enter an 21 amended scheduling order and Defendants’ Motion Requesting Leave for Discovery (Dkt. 199) 22 is denied without prejudice with the right to refile when the stay is lifted. Defendants’ Motion for 23 Reconsideration (Dkt. 216) and Motion to Strike (Dkt. 219) are denied. 24 1 I. Motion to Stay (Dkt. 206) 2 In the Motion to Stay, Plaintiff requests the Court stay this action pending a ruling by the 3 Ninth Circuit in MMAS Research, LLC, et al. v. The Charité, et al., Case No. 23-55202 (9th 4 Cir.). Dkt. 206. Plaintiff states Defendant MMAS Research sued Charité in the Central District
5 of California for alleged infringement of the Morisky Widget copyright, which is the copyright at 6 issue in this case. Id. The district court dismissed MMAS Research’s second amended complaint 7 with prejudice because Plaintiff Morisky, not MMAS Research, owns the copyrights at issue. See 8 Dkt. 202-1. MMAS Research has appealed the district court’s order. Dkt. 206. Plaintiff asserts 9 that, because this case involves the same issues as MMAS Research, LLC, et al. v. The Charité, et 10 al., this matter should be stayed pending the resolution of MMAS Research, LLC, et al. v. The 11 Charité, et al. Id. Defendants do not oppose the stay if the Court finds it appropriate; however, 12 Defendants state the stay will not promote economy or serve a judicial purpose. Dkt. 211. 13 “The power to grant a stay in pending litigation is incidental to the power inherent in 14 every court to control the disposition of the cases on its docket.” Landis v. North Am. Co., 299
15 U.S. 248, 254–55 (1936). “A trial court may, with propriety, find it is efficient for its own docket 16 and the fairest course for the parties to enter a stay of an action before it, pending resolution of 17 independent proceedings which bear upon the case.” Mediterranean Enterprises, Inc. v. 18 Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983); Leyva v. Certified Grocers of California 19 Ltd., 593 F.2d 857, 863–64 (9th Cir.1979); Ass’n of Irritated Residents v. Fred Schakel Dairy, 20 634 F. Supp. 2d 1081, 1094 (E.D. Cal. 2008). In deciding whether to grant a stay, courts consider 21 “the possible damage which may result from the granting of a stay, the hardship or inequity 22 which a party may suffer in being required to go forward, and the orderly course of justice 23 measured in terms of the simplifying or complicating of issues, proof, and questions of law
24 1 which could be expected to result from a stay.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 2 1962). 3 Here, a lawsuit is pending before the Ninth Circuit that could be, at a minimum, 4 persuasive authority in this case. Because the Ninth Circuit’s ruling in MMAS Research, LLC, et
5 al. v. The Charité, et al., could impact the Court’s disposition of the pending proceedings, 6 waiting until the issues on appeal are decided will avoid potential unnecessary litigation and may 7 provide guidance for this Court. Thus, the Court finds a stay of the entire matter pending the 8 Ninth Circuit’s decision serves the interests of fairness and “promote[s] economy of time and 9 effort” for the Court and the parties. Kelleher, 467 F.2d at 244. 10 Accordingly, Plaintiff’s Motion to Stay (Dkt. 206) is granted. The Court orders this entire 11 matter be stayed pending resolution of MMAS Research, LLC, et al. v. The Charité, et al., which 12 is currently pending before the Ninth Circuit. The parties are directed to file a joint status report 13 within fourteen (14) days of resolution of MMAS Research, LLC, et al. v. The Charité, et al. 14 While this matter is stayed, motions will not be considered by the Court. Any motion filed with
15 the Court during the stay may be denied as moot. 16 II. Motion Requesting Leave for Discovery (Dkt. 199) 17 On October 31, 2023, the Court directed the parties to file a joint status report proposing 18 new pretrial deadlines – including allowing an additional discovery period – and a new trial date. 19 Dkt. 195. The parties filed a joint status report on December 1, 2023. Dkt. 201. Defendants also 20 filed a motion requesting leave to conduct additional discovery. Dkt. 199. As the Court has 21 stayed this entire matter, the Court declines to enter a new scheduling order and set new 22 discovery deadlines. Therefore, Defendants’ Motion Requesting Leave for Discovery (Dkt. 199) 23 is denied without prejudice. After MMAS Research, LLC, et al. v. The Charité, et al. is resolved,
24 1 the parties shall meet and confer regarding a new scheduling order, including a proposal on any 2 additional discovery and file a new joint status report. If the parties are unable to agree on 3 additional discovery, Defendants may file a renewed motion requesting leave to conduct 4 additional discovery.
5 III. Motion for Reconsideration (Dkt. 216) 6 On January 4, 2024, Defendants filed a Motion for Reconsideration seeking 7 reconsideration of the Court’s decision to deny Defendants’ motion to stay the imposition of 8 sanctions. Dkt. 216; see also Dkt. 214. 9 Pursuant to Local Civil Rule 7(h), motions for reconsideration are disfavored and will be 10 denied absent a showing of manifest error or a showing of new facts or legal authority which 11 could not have been presented earlier with reasonable diligence. Defendant asserts the Court 12 committed manifest error when it provided inconsistent rulings. Dkt. 216. Defendants assert the 13 Court suggested Defendants forego an appeal of the sanctions order but move to stay payment 14 until after the trial. Dkt. 216. Defendants contend that they followed the steps outlined by the
15 Court and filed a motion to stay, but the Court denied their motion. Id. 16 The Court did not direct Defendants to forego an appeal or move for a stay. Rather, the 17 Court recommended that a final judgment on the Court’s order awarding sanctions not be issued. 18 Dkt. 194. The Court noted, but did not recommend, that Defendants could seek a stay of the 19 Court’s Order Awarding Fees and Costs. Id. Again, in the Order on Motions for Sanctions and 20 Stay, “[t]he Court note[d] that nothing in th[e] Order prohibit[ed] Defendants from filing a 21 motion seeking relief from the deadline.” Dkt. 195 at 18, n.4. The Court did not recommend, nor 22 direct Defendants to forego filing an appeal. Further, the Court did not recommend, nor direct 23 Defendants to file a motion to stay the imposition of sanctions until the conclusion of the trial in
24 1 this case. And, at no time did the Court indicate it would grant such a motion. Rather, the Court 2 affirmed that Defendants could pursue available options, such as a motion to stay. Defendants’ 3 inability to demonstrate that the order directing payment of sanction should be stayed fails to 4 show manifest error.1
5 Defendants also argue they have submitted new evidence which warrants reconsideration. 6 Dkt. 216. Defendants submitted a declaration from Defendants’ certified public accountant. See 7 Dkt. 218. There is no indication this evidence was unavailable when filing the motion to stay 8 despite reasonable diligence. Moreover, a declaration from Defendants’ certified public 9 accountant is not sufficient to show Defendants are unable to pay the sanction. Rather, a motion 10 to stay based on an inability to pay should include detailed evidence attested to by the 11 Defendants showing an inability to pay, such as copies of all statements of all financial accounts 12 and copies of real property deeds and assessment documents in which Defendants have an 13 interest. A motion to stay sanctions by counsel should also include similar supportive evidence. 14 Accordingly, the Motion for Reconsideration (Dkt. 216) is denied. The Court orders
15 Defendants to pay the sum of $35,025.92 on or before January 19, 2024 and Defendants’ counsel to 16 pay $1,320.00 to Plaintiff’s counsel on or before January 19, 2024. 17 IV. Motion to Strike (Dkt. 219) 18 On January 5, 2024, Defendants filed a Motion to Strike requesting Docket Entry 217 be 19 stricken. Dkt. 219. Defendants state the declaration of Rodney Watkins filed at Docket Entry 217 20 contains incorrect information and was filed in error. Id. Defendants state a corrected declaration 21 was filed to replace the incorrect declaration. See id.; see also Dkt. 218. 22 23 1 The Court notes Defendants have not adequately represented the record to this Court. The Court warns 24 defense counsel that misrepresentations to the Court may result in Rule 11 sanctions. 1 The Court has directed the parties to ensure all filings comply with the Local Civil Rules 2 (“LCR”). Dkt. 137. Further, the Court has stricken filings that did not comply with the LCRs. 3 See Dkt. 151. Here, the Motion to Strike does not comply with the LCRs. For example, the 4 Motion is not on numbered paper. See LCR 10. Therefore, the Clerk is directed to strike Docket
5 Entry 219. The Court notes the Motion to Strike was unnecessary. Defendants should have 6 complied with LCR 7(m) to correct the incorrect filing at Docket Entry 217. 7 V. Conclusion 8 For the above stated reasons, the Motion to Stay (Dkt. 206) is granted and this matter is 9 stayed pending the outcome of MMAS Research, LLC, et al. v. The Charité, et al., Case No. 23- 10 55202 (9th Cir.). The parties are directed to file a joint status report within fourteen (14) days of 11 resolution of MMAS Research, LLC, et al. v. The Charité, et al. 12 As this matter is now stayed, the Court declines to enter an amended scheduling order 13 and Defendants’ Motion Requesting Leave for Discovery (Dkt. 199) is denied without prejudice 14 with the right to refile after the stay is lifted. Defendants’ Motion for Reconsideration (Dkt. 216)
15 and Motion to Strike (Dkt. 219) are denied. 16 Dated this 11th day of January, 2024. 17 A 18 David W. Christel Chief United States Magistrate Judge 19 20 21 22 23 24