KLINEDINST PC 501 West BrRoaDway, SuITE 600
Case 2312-cv-08333-ODW-JC Document 113 Filed 04/11/13 Page1of15 Page ID #:2672
at
Heather L. Rosing, Bar No. 183986 David M. Majchrzak, Bar No. 220860 Philip W. Vineyard, Bar No. 233628 KLINEDINST PC
501 West Broadway, Suite 600
San Diego, California 92101
(619) 239-813 1/FAX (619) 238-8707 hrosing@klinedinstlaw.com dmajchrzak@klinedinstlaw.com
Sy ete & = ge earing for | PAUL DUFFY; ANGELA VAN DEN HEMEL and PRENDA LAW, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
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11 |) INGENUITY 13 LLC, Case No. 2:12-cv-8333-ODW(JCx)
i2 Plaintiff, Related Cases: 2:12-cv-05709-ODW-JC 2:12-cv-08322-ODW-JC
SAN DIEGO, CALIFORNIA 92101
13 Vv. OBJECTION TO THE REQUEST OF 14 || JOHN DOE, PUTATIVE JOHN DOE TO FILE A REPLY BRIEF 15 Defendant.
[Filed concurrently with Declaration of Philip
16 W. Vineyard]
17 Judge: Hon. Otis D. Wright, II Magistrate Judge: Hon, Jacqueline Chooljian
18 Courtroom: 1]
19 Complaint Filed: September 27, 2012 Trial Date: None set
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OBJECTION TO THE REQUEST OF PUTATIVE JOHN DOE TO FILE A REPLY BRIEF | 2:12-cv-8333-ODW(JCx)
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TABLE OF CONTENTS
Page I. PN DROID UC TION cccwascessnssczesecanacarsessestonsieaseusnapeneqeeebeceaceueauaersaceia nabs aiesress l eR GING ao sos cacosvnatacccnecusnetederiprcenecaaveeasseaectoseyusadesearecesenpnesnseonner sion teseene, l A. The court’s order to show cause hearings here were criminal OC Se AS Sag persicae prinnqesuevcedemepenessneeiarendsceeangeeam carat iatecqeraenneteateeenenees: I B. | The Respondents were entitled to a disinterested prosecutor, which Mr. Pieiz assuredly WaS. aN.1S TOE: sisisiccecsaceaswersenvacie dantenseapntecans 3 l. Pietz has a pecuniary interest in this case........... saehanteeseebinsd apteant 4 a. Pietz advertises services that are intended to hinder prosecution of copyright infringement actions. ............0:. 4 D; Pietz is padding his bill with order to show cause Oa ea ateeracg espe aeeste te eee eens ees esaauteeeceenesecsteneaues: > pe Pietz has a legal interest in the subject matter of the order OS OAS gcc cays vines tnenecacuseadamateosnseacadasedepavbesmscievecayeaneams 6 C. The evidence Pietz proposes to offer is vague, inadmissible, and incapable of satisfying the “beyond-a-reasonable-doubt” BEAN isooea strep apres poeta rie ones uneseuceunces sss eecteswemuewye¥sersavavdentuesesseveneeceteace: 7 1. | The purported evidence against John Steele is PAGS S10 ONG orcas cep seavcre'ssteerunaeeteeesecequtavasnequeneecusaaveuseeaerdasasaseeaieeres 7
2 The a declaration prevents proof beyond a BAS OM AOS COE serie cececaz asp ensaczacateeaeaunessanyandenneertas es weet eemgeate 9
3. Pietz had the we gate ey to submit evidence on Hansmeier’s and Gibbs’ investigatory techniques and FANNCC, VO" OBO secs ig ese aaa ssnsesyentsatateatesacranermaeekeanaesaeeseneaned senate 10
IG TSS ccs crarcteas greene peeecmset ence peeceausiapeenee ap ceseresseaennieeesanesooece as aresaces 11
is OBJECTION TO THE REQUEST OF PUTATIVE JOHN DOE TO FILE A REPLY BRIEF 2:12-ev-8333-ODW(JCx)
Case 2:112-cv-08333-ODW-JC Document 113 Filed 04/11/13 Page 3 of 15
l TABLE OF AUTHORITIES Z 3 || Cases 4 wena v. United States 8 ee dW (MOB) ctacaaseatercecnencns ance sien feneesoaeanesese-tomenseets 5 Breneman — 6 TOD FAT AD Car, TOG) oe tecrarenniauisgtenevapegtetetettaceseee: 7 || Durham v. County of Maui 804 F.Supp.2d 1068 (D. Haw. 2011)... eeneeeeeeereres 8 Gomez v. Rivera Rodriguez 9 344 F.3d 103 (1st RT 20 Fea see ea rover ereserg tye essetedevecceneeet geen: 85 10 || Gompers v. Bucks Stove & Range Co. wo DN AS A O01 LE ie rtrtepeicceruaseedenericesnetatoaemaegrouensarsaess 7; << l | oS In re Gonda BE2 12 2011 WL 5240154, *3 (Br. N.D. Cal. 2011) cca 2 20 13. || Int’l Union, United Mine Workers of Am. v. Bagwell LEG S12 U.S. 821 (1994). occccccsssescessescsesesvsssesesvsesesesereeseetecsen =a 14 az Lee v. County of Los Angeles | aw 15 DAO Fd (oF (90 Ch 2001) ec ceraereaerareet rectanenoeteueenes 16 ree 51 F. fi 322 OUT, TF 87 cracevepcnceeccasecnsncpaseerpimanedeewees 17 Newman v. San Joaquin Delta ee ie College Dist. 18 BID FRR ND DO eG ale DOA ircec treet esas cresteonsietanterarersnets 19 || Penfield Co. of Cal. v. SEC DIO 8 CT riirsepctgrerennseenmacecoopeneeete ae neroanene eer artuenss 20 Prof’l Real Estate Investors v. Columbia Pictures Indus. 21 DOE 9 asics terse etre stenieteaeec es ceeceesseareehen eens 22 || Sea-Land Service, Inc. v. Lozen Intern., LLC 285 F.3d 808 (9th Cir. 2002) v.cccececesseceesssssseseerseseeereseees 25 Standard Oil Co. v. Mgor 24 251 F.2d 188 (9 iy LO Vi aupeicece eaeeeertecetcuect inane ceeaantenars 25 || U.S. v. Bonds hs | | OOS FSO 2 ected ecrecacaceeeteeepearearmamcen: 26 U.S. v. Portsmouth Paving. C Hie Ze OOF FS, FG Yasar spectre eed necro eseseaaess
28 || Wyatt v. Terhune
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eoe @ ee eee ear eneereeoeeatree ee 10
OBJECTION TO THE REQUEST OF PUTATIVE JOHN DOE TO FILE A REPLY BRIEF
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] SUS: TO TOG OU C12 008 Ys scoscaeepncecectncpnaeoveese conve anni ctatpesnn coors es 8
2 || Xiong v. Veneman 2005 U.S. Dist. WS 364 Cr A a 20D) eccentereteneemeecercenecmnentaeen: 1]
Young v. United States ex rel. Vuitton Et Fils S. A A WS Fo OS attr ccercorterteiedneneevasdpar ec seav eres eetisennennae 2.5
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KLINEDINST PC 501 West Broapway, SuITE 600 SAN DIEGO, CALIFORNIA 92101
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Respondents Paul Duffy, Angela Van Den Hemel, and Prenda Law, Inc., respondents to this court’s order to show cause, hereby offer the following objections to the Request for Leave to File a Reply submitted by the putative John Doe in case number 2:12-cv-08333-ODW-JC.
I. INTRODUCTION
Morgan Pietz’s and the putative John Doe’s request to the court for leave to file a reply to the briefs filed by Prenda Law, Paul Duffy, Angela Van Den Hemel, Paul Hansmeier, and John Steele (collectively, the “Respondents”) should be
denied for three reasons:
e The papa are entitled to an independent prosecutor in these proceedings, which Pietz assuredly is not.
e The evidence Pietz seeks to submit is inadmissible, without substance, and outside the scope of the court’s order to show cause notices.
e Pietz has submitted numerous filings in this case and, unlike the Respondents, has had the opportunity to call and examine witnesses, cross-examine Brett Gibbs, submit evidence (albeit questionable and objectionable evidence), and even provide speculative testimony | under no penalty of perjury or threat of cross-examination concerning his own investigations and conclusions.
The order to show cause process has been flawed. Providing further deference to Pietz will only exacerbate an already faulty procedure.
Il. ARGUMENT
A. The court’s order to show cause hearings here were criminal
proceedings As explained in the brief Duffy, Van Den Hemel, and Prenda filed, this
order to show cause proceeding is a criminal one. The court has stated in no uncertain terms that it (1) believed the Prenda-related parties had defrauded the court and (ii) would “consider whether sanctions are appropriate, and if so, determine the proper punishment...includ[ing] a monetary fine, incarceration, or /I/ ///
sie
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other sanction to deter future misconduct.”'* Sanctions for “completed act[s] of
mnemeed
disobedience” are treated as punitive or criminal in nature. See Int’] Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828-29 (1994) (citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 443 (1911)). “Thus, a ‘flat, unconditional fine’ totaling even as little as $50 announced after a finding of contempt is criminal if the contemnor has no subsequent opportunity to reduce or avoid the fine through compliance.” Jd. at 829 (quoting Penfield Co. of Cal. v. SEC, 330 U.S. 585, 588 (1947)).
And, as Duffy, Van Den Hemel, and Prenda have already briefed (see ECF
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108), once the court initiates proceedings against an attorney or party for purposes 11 || of criminal sanctions, the attorneys and/or parties subject to the proceedings must 12 || be provided both procedural and substantive due process rights, including but not 13 || limited to a disinterested, independent prosecutor, presentation of a defense, notice 14 || of charges, privilege against self-incrimination, and right to proof beyond a
15 || reasonable doubt. /d. at 826 (citations omitted); Young v. United States ex rel.
16 || Vuitton Et Fils S. A., 481 U.S. 787, 804 (1987). Indeed, Young states the
17 || following:
18 Private attorneys appointed to prosecute a criminal contempt action represent the United States, not the party that is the
19 beneficiary of the court order allegedly violated. As we said in
0 Gompers, criminal contempt proceedings arising out of civil litigation "are between the public and the defendant, and are not
a | a part of the original cause." 221 U.S., at 445. The prosecutor Is appointed solely to pursue the public interest in vindication of
22 the court's authority. A private attorney appointed to prosecute
a criminal contempt therefore certainly should be as
94 || | February 7, 2013, Order to Show Cause re: Sanctions for Rule 11 and Local Rule 83-3 Violations, 10:27-28; 11:1-2 (ECF 48); Court’s Order of March 14, 2013, re
25 || the Ex Parte Ay Pare of John Steele, Paul Hansmeier, Paul Duffy, and Angela Van Den Hamel (ECF 88), at p. 1-3.
26 || * While it is acknowledged that the Court did not mention “incarceration” in its March 14, 2013, Order, the Court did state that it was amending its the February 7, 27 || 2013 Order to Show Cause “to include sanctions against the persons and entities in subparagra hs a-m below,” which includes the Respondents. March 14, 2013, 28 || Order, at 1:25-28; 2:1-23.
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disinterested as a public prosecutor who undertakes such a prosecution. |
Id. Thus, before the court asked Pietz to present evidence against
Respondents, it should have evaluated the interests Pietz has in this case.
B. The Respondents were entitled to a disinterested prosecutor, which Mr. Pietz assuredly was and is not
In its February 7, 2013 order to show cause, the court invited Pietz, counsel for an unnamed putative Doe defendant, “to present evidence concerning the
conduct outlined in this order.”” And, indeed, Pietz did provide that “evidence,”
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including the examination of witnesses, the video display of evidentiary and
ever
demonstrative exhibits, and the submission of multiple objectionable evidentiary 4 || exhibits into the record.’ The court thereafter invited Pietz to appear at the April 2,
2013, hearing at which the Respondents were also to appear.” Although the
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13 14 proceedings lasted only an estimated 12 minutes, Pietz, without objection from the 15 || Ourt, took his place with his co-counsel at the prosecutor’s table, with several
16. || boxes of documents and the court’s audio-visual equipment ready to levy against 17. || the Respondents.
1g The court has provided Pietz great deference, both in granting him an
19 || Opportunity to present evidence against the Respondents and in yielding great
99 || leeway to explore areas of inquiry far outside the scope of the court’s orders. The 91 || court may not have expressly named Pietz as its prosecutor, but every one of the court’s actions concerning Pietz implies such a position has been appointed to him. The deference shown to Pietz and his unspoken role as prosecutor was and is a
44 || Violation of the Respondents’ due process rights.
> February 7, 2013, OSC (ECF 48), at 10:18-20.
* The Respondents had no opportunity to object to the evidence because the court 27 || did not allow their specially appearing counsel, Heather Rosing, to participate in the evidentiary portion of the proceedings. |
28 || > March 14, 2013, Order (ECF 88), at3:14-15. —s
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pwnd
1. Pietz has a pecuniary interest in this case.
Pietz’s role is not as a representative of a current party in this case. Indeed, Pietz’s client has yet to be named to any lawsuit. Rather, Pietz is using the court’s invitation in the proceedings to advertise for new clients and to run up a bill that he hopes the court will pay via sanctions imposed upon Brett Gibbs.
a. Pietz advertises services that are intended to hinder prosecution of copyright infringement actions.
Attached as Exhibit A to the concurrently filed Declaration of Philip W.
Vineyard 1s a print-out of the home page of Pietz’s website, “pietzlawfirm.com.”
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oenreer
A simple review of the many links on the site associated with AF Holdings,
11 || Ingenuity 13, LLC, and Prenda Law, as well as the many articles and blog posts 12 || with titles such as “A Primer on Slaying the Copyright Troll,” undermine any
13 |} argument that Pietz is disinterested in his prosecution of the Respondents.
14 For example, as to the litigation involving Ingenuity 13, Pietz has provided
15 || the following on his website:
16 Ingenuity 13, LLC + Prenda Law 17 This summer, Prenda Law, Inc. and its attorneys John Steele and Brett Gibbs have been busy filing lawsuits in California on 18 behalf of Ingenuity 13, LLC. Ingenuity 13 is the latest plaintiff 19 Prenda is using to orchestrate its national campaign to coerce copyright “settlements” from ISP subscribers who may or may 20 not have actually downloaded any of plaintiff's movies. In a departure from prior practice, Prenda has been filing these Z| lawsuits against single John Does. That means these cases will 79 likely be harder to resolve because plaintiff will likely be seeking a higher settlement value (passing the cost on to the 93 defendant) and there is one less procedural problem with the case. However, clients in these cases still have options. If you 24 have received a letter from your ISP regarding an Ingenuity 13 subpoena, or 1f you have been contacted by an Ingenuity 13 25 representative directly, please contact The Pietz Law Firm. 26 57 These statements speak for themselves. Pietz is manipulating legal 28 proceedings with Ingenuity 13, Prenda Law, John Steele, and Gibbs as
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1 || advertisements for business, and the court has unknowingly advanced these efforts.
bo
These facts certainly do not imply Pietz is a disinterested prosecutor. Rather, they scream just the opposite. b. Pietz is padding his bill with order to show cause work. In an earnest quest to be paid for his work, Pietz has filed a declaration in which he details his time and financial resources spent in this matter. Indeed, citing his overall and “big firm” experience (less than five and two years,
respectively), Pietz somewhat incredibly makes an argument that his services are
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worth $550 per hour, but discloses that he is willing to settle for $300 per hour.°
jenn
11 || Pietz thereafter provides a copy of his billing, which illustrates that he spent 120.5 12 || hours doing legal work for, and paid $2,226.26 in expenses in, this matter. The 13 || total invoice amounts to $38,376.26, all in defense of a client who had yet to be
14 || named to any lawsuit.
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es But a more thorough analysis of Pietz’s invoice shows that a super-majority 16 || of his billing is spent on these order to show cause proceedings, which as noted in 17 || Young, is an action between the public and the Respondents. Young, supra, 481
18 || U.S. at 804. Indeed, Pietz spent only 50.2 hours providing legal services before the 19 || court’s February 7, 2013, notice of the order to show cause against Gibbs; the
20 || remainder (70.3 hours) was spent in response to the order to show cause. Unless he 21 || was acting as a prosecutor, Pietz has no basis to ask for these fees, but yet he filed 22 || the declaration anyway. Permitting him to file another repetitive, conclusory brief 23 || will serve only to increase the fees for which Pietz is asking remuneration, which 24 || may benefit Pietz, but will further violate Respondents’ due process rights.
2 Another disclosure in Pietz’s invoice raises significant due process concerns
97 || ° Declaration of Morgan E. Pietz Re: Fees and Costs, filed on April 5, 2013 (ECF 102), at {7 8,9, 11.
28 || ’ Decl. of Pietz, Ex. D. 25
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as well. Pietz advanced the costs for Alan Cooper, on whose testimony and declaration this court has heavily relied, to fly out to Los Angeles for the March 11, 2013.° Pietz likewise and inexplicably advanced travel costs for Cooper’s personal attorney, Paul Godfread. And Pietz failed to disclose these courtesies before examining Cooper.
Moreover, Cooper was but one of seven individuals the court ordered to appear at the hearing. And Pietz has not indicated, nor can he, that he offered to advance travel costs for any of the other witnesses. If he was truly a disinterested
prosecutor, then his obligation would be to do everything possible to provide the
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court with the information it needs to make its decision. By independently
11 || selecting which of the individuals this court requested attend would be flown out, 12 || Pietz demonstrated his actual bias.
13 Quite simply, Pietz’s invoice dooms these proceedings. It shows that he has 14 || an unmistakable bias and a pecuniary interest in the order to show cause
15 || proceedings in violation of the Respondents’ due process rights.
16 pas Pietz has a legal interest in the subject matter of the order 17 | to show cause. 18 As noted in the putative John Doe’s Request for Leave to File a Reply, Pietz
19 || argues that there is “an important issue in this case, with potentially far-reaching
20 || implications that go beyond Prenda, which is in danger of being overshadowed by
999
21 || the allegations of fraud and attorney misconduct.”” Pietz affirmatively states that
22 || he had “hoped to further probe Prenda representatives on [sic] reasonableness of
23 || the Wagar and Denton investigations and of the “snapshot” infringement theory.”"”
24 || And he concludes by noting that there is a “potential precedential importance of an
* Decl. of Pietz, Ex. D, billing entry identified by date of February 20, 2013. ” Request for Leave to File a Reply (ECF 111), 3:9-11. 28 || '° Ibid., at 3:15-18.
Ge
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; 1 order on that issue.”
pene,
But this is not a hearing to determine if the fictitiously-named-defendant model is a valid use of the court system for copyright infringement cases. Rather, this is a hearing about the conduct of Prenda Law and the other Respondents. This is a hearing to determine if the facts as developed by Peter Hansmeier and Gibbs, when coupled with the law cited in Duffy’s, Van Den Hemel’s, and Prenda’s responsive brief, was sufficient to constitute what Justice Clarence Thomas called “probable cause” to file a lawsuit and avoid Rule 11 sanctions. See Prof’l Real
Estate Investors v. Columbia Pictures Indus., 508 U.S. 49, 65-66 (1993). Pietz
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wants to use the court’s order to show cause to provide the proverbial haymaker to 11 || future infringement actions, which necessarily must be commenced to obtain 12 || subpoenas to determine infringer’s identities. That is not disinterested. That is a
13 || violation of the Respondents’ due process rights.
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14 C. The evidence Pietz proposes to offer is vague, inadmissible, and
15 incapable of satisfying the “beyond-a-reasonable-doubt”
16 standard.
17 1. The purported evidence against John Steele is inadmissible. 18 Pietz has stated in the putative John Doe’s Request that there are two
19 || documents allegedly drafted by “Steele’s (prior) outside counsel” that will prove 20 || that Steele has an ownership interest in AF Holdings.'* Pietz acknowledges that 21 || the documents are hearsay, but argues that they fit into exceptions related to 22 || judicial notice and admissions against interest. Pietz is wrong on both fronts.
Zo First, judicial notice may only be taken of documents and facts that are “not 24 || subject to reasonable dispute.” FRE 201(b). The content of pleadings from other 25 || courts do not qualify. Lee v. County of Los Angeles, 240 F.3d 754, 774 (9th Cif. 26 || 2001)(error under Rule 201 for court to take judicial notice of the truth of matters
', Lbid., at 3:22-23. | 28 Request for Leave to File a Reply (ECF 111), 2:9-26.
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asserted in extradition papers and in testimony at extradition hearing); see also
Wyatt v. Terhune, 315 F.3d 1108, 1114 n.5 (9th Cir.2003)(“Factual findings in one
case ordinarily are not admissible for their truth in another case through judicial notice”); Wyatt v. Terhune, 280 F.3d 1238, 1242 (9th Cir.2002)( “[T]aking judicial notice of findings of fact from another case exceeds the limits of Rule 201.”); Newman v. San Joaquin Delta Community College Dist., 272 F.R.D. 505, 515 (E.D. Cal. 2011) (court cannot take judicial notice of the truth of facts asserted in court documents). To the extent the Court may disagree about the application of
this legal principle, FRE 201 (e) and due process require the Court to allow
Respondents a hearing on this issue.
1] Otherwise, Pietz is attempting to submit out-of-court statements by someone 12 || other than Steele as evidence of the truth of the matter asserted in the statement; 13 || ie, inadmissible hearsay'’. No hearsay exception applies to the two documents
14 || proffered by Pietz. They are not, as Pietz alleges, nonhearsay party admissions,
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15 || and Pietz has not meet his burden to prove otherwise. See Bourjaily v. United 16 || States, 483 U.S. 171, 175 (1987)(holding that proponent of hearsay must prove 17 || exception or exemption by preponderance of the evidence). Even assuming 18 || arguendo Steele is a party to this action, FRE 801(d)(2)(A) would involve Steele's 19 || own statements, which is not the case. See Durham v. County of Maui, 804 20 || F.Supp.2d 1068, 1070 (D. Haw. 2011). FRE 801(d)(2)(B) requires proof that 21 || Steele adopted the statements, which Pietz cannot present. /d., see also Sea-Land 22 || Service, Inc. v. Lozen Intern., LLC, 285 F.3d 808, 821 (9th Cir. 2002). Similarly, 23 || FRE 801(d)(2)(C) requires proof of the Steele’s authorization to make the 24 || statements, which Pietz cannot proffer. Lastly, FRE 801(d)(2)(D) requires proof of
26 || '° Nearly all of the purported evidence submitted by Pietz to date, besides —s | improperly authenticated, comes from other cases, and ng gl to these 27 || submissions on the bases stated herein. See Dkt 40-2, Exs. C, D, E, F, G, H, I, J and N; Dkt 53-1, Exs. Q, R, $, U, and V; Dkt 53-2, Exs. W, X, Y, and BB; Dkt 59- 28 || 2, Exs. EE, FF, GG; Dkt 59; Dkt 69; Dkt 80.
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1 || the declarant’s agency’, which is similarly absent. U.S. v. Bonds, 608 F.3d 495, 2 || 504 (9" Cir. 2010); Breneman, supra, 799 F.2d 470, 473 (9"" Cir. 1986). Importantly, the proffered statements themselves cannot themselves establish the declarant's authority under subpart (C)the existence or scope of the agency under subpart (D). FRE 801(d)(2). See also Gomez v. Rivera Rodriguez, 344 F.3d 103, 106 (1st Cir. 2003)(“It is hornbook law that an agency cannot be proven solely by the unsupported out-of-court statements of the claimed agent.”);
Mackey v. Burke, 751 F.2d 322, 326 n. 3 (10th Cir. 1984)(An agency relationship
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must be shown to exist by independent evidence in order for Plaintiffs to establish 10 || nonhearsay exception); U.S. v. Portsmouth Paving Corp., 694 F.2d 312 (4° Cir. 11 |} 1982)(Rule 801(d)(2) “demands as a prerequisite to admissibility a showing based
12 || on evidence independent of the alleged hearsay that the declarant is an agent of the 13. || party with authority to speak on the subject.”). Lastly, because this context is akin 14 || to a criminal proceeding, independent evidence establishing that the agent was 15 |} engaged in a conspiracy with its principal is required. See Standard Oil Co. v.
16 || Moore, 251 F.2d 188, 210 (9" Cir. 1957). Pietz has not provided such evidence.
17 Ze The Berry declaration prevents proof beyond a reasonable 18 doubt. 19 Pietz argues that the Berry declaration submitted to undermine Alan
20 || Cooper’s testimony is shameful and easily discredited.'” Yet, Pietz has not offered 21 || the court even a glimpse of the evidence to support this argument. If it is a
22 || technical argument; e.g., “the texts are fake,” arrangements are being made for a 23 || computer forensics engineer to download, store, and maintain a chain of custody 24 || for the text messages on Mr. Berry’s phone.’® If Pietz intends to file a competing
25 || declaration questioning Berry’s credibility, the effect is insufficient to create proof
'4 Rven evidence establishing a declarant’s aes | for Prenda does not establish 97 || agency for Steele. See In re Gonda, 2011 WL 5240154, *3 (Br. N.D. Cal. 2011).
© Request for Leave to File a Reply (ECF 111), 3:4-6. '© Declaration of Philip W. Vineyard, § 4._ Os
OBJECTION TO THE REQUEST OF PUTATIVE JOHN DOE TO FILE A REPLY BRIEF 2:12-ev-8333-ODW(JCx)
KLINEDINST PC 501 West Broapway, SUITE 600 SAN DieGo, CALIFORNIA 92101
Case 2:12-cv-08333-ODW-JC Document 113 Filed 04/11/13 Page 14o0f15 Page ID #:2685
1 || beyond a reasonable doubt that Cooper did not know about AF Holdings or that he 2 || did not sign the disputed copyright assignments. At best, it raises a competing 3 || credibility issue; i.e., between Cooper and Berry, but nothing that will permit the 4 || court to reasonably rule that Pietz has presented evidence that, beyond a reasonable 5 || doubt, proves that the Respondents were responsible for a forged assignment or 6 || had an ownership interest in any of the plaintiff companies. As such, Pietz’s 7 || proffered evidence is superfluous to these proceedings. 8 os Pietz had the opportunity to submit evidence on 9 Hansmeier’s and Gibbs’ investigatory techniques and failed 10 to do so. 1] Pietz seeks to submit a declaration of a purported unnamed IT expert to 12 || rebut unknown portions of the Respondents’ briefs. Again, with the burden upon 13 || him to justify the court’s grant of leave to file a reply, Pietz fails to supply the 14 || following information: the expert’s credentials, the subject matter of his 15 || declaration, and how that declaration will in any way remove any reasonable doubt 16 || that the Respondents should be sanctioned for the allegations in the court’s orders 17 || to show cause. See, e.g., Xiong v. Veneman, 2005 U.S. Dist. LEXIS 35843 at 18- 18 || 20 (E.D. Cal. 2005) (discussing burdens of proof for dispositive motions). 19 If the expert is to opine on the Rule 11 subject matter addressed in the 20 || Declaration of Joshua Chin, the question must be why Pietz did not offer that 21 || evidence during his case-in-chief on March 11, 2013. He had ample notice that this 22 || topic was the subject of the court’s February 7, 2013 hearing and plenty of time at 23 || the hearing to explore the topic. But he chose to argue technical aspects on his 24 || own. Only when his lay opinions and speculative conclusions - which have been 25 || argued ad nauseam throughout the country - were challenged by someone with 26 || actual technical knowledge and credentials did he determine that he was in need of 27 || an expert. That ship has sailed. He had his chance. See Id 28 Any further opportunities provided to Pietz to brief and present new material
a1) « OBJECTION TO THE REQUEST OF PUTATIVE JOHN DOE TO FILE A REPLY BRIEF 2:12-cv-8333-ODW(JCx)
KLINEDINST PC 501 West BrRoapway, SuITe 600
Case 2:12-cv-08333-ODW-JC Document 113 Filed 04/11/13 Page 15o0f15 Page ID #:2686
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after he has already (1) filed three briefs and 36 exhibits, (2) participated in one proceeding in which he presented numerous witnesses, 18 new exhibits, and his legal arguments and (3) then participated in a second proceeding where he offered no witnesses, no exhibits, and no arguments will only highlight further the flawed — order to show cause procedures thus far on display. Worse yet, it will necessitate further proceedings, likely including additional briefing, by the Respondents, and a further consumption of this court’s resources.
Hl. CONCLUSION
The law is clear. The court is engaged in the prosecution of criminal
Z2b 0 ON A WMA Bw BD
allegations against the Respondents. When the opportunity came to impose
11 || punitive sanctions for litigation conduct that the court finds objectionable, it relied 12 || on Pietz, who has spent more than half of his 4 % year career fighting the
13 || Respondents, to act on the court’s behalf. Through this, Pietz is, in reality, simply
14 || working to advance his career and financial goals, while the Respondent’s due
SAN DIEGO, CALIFORNIA 92101
IS || process rights are trampled. The court has sufficient information to determine
16 || whether sanctions should be issued against a number of individuals and entities.
17 || The record need not be further expanded to include additional, superfluous
18 |} material that should not impact the court’s decision, but will certainly cause further 19 || delay. As such, Paul Duffy, Angela Van Den Hemel, and Prenda Law Inc. request 20 || the court deny Pietz’s request for further briefing.
ps Should the court allow Pietz to file an additional brief, then Duffy, Van Den 22 || Hemel, and Prenda request that they be afforded 10 days to file a reply.
24 DATED: Aoril 11. 2013 25 ~ David M. Marchteak 26 Philip W. Vineyard Attorneys for Specially Appearin a 14 | ei PAUL DUFFY; ANGELA VAN— wi HEMEL and PRENDA LAW. INC.
11 4 OBJECTION TO THE REQUEST OF PUTATIVE JOHN DOE TO FILE A REPLY BRIEF 2:12-cv-8333-ODW(JCx)