KLINEDINST PC 501 West Broapway, SuIte 600 SAN DIEGO, CALIFORNIA 92101
Case 2{(12-cv-08333-ODW-JC Document 181 Filed 06/12/13 Page1of3 Page ID #:3337
1 || Heather L. Rosing, Bar No. 183986 David M. Majchrzak, Bar No. 220860 2 || Philip W. Vineyard, Bar No. 233628 KLINEDINST PC 3 || 501 West Broadway, Suite 600 San Diego, California 92101 4 || (619) 239-8131/FAX (619) 238-8707 hrosing@klinedinstlaw.com 5 || dmajchrzak@klinedinstlaw.com pvineyard@klinedinstlaw.com 6 Attorneys for Specially Appearing for 7 PRENDA LAW. INC. id . 8 UNITED STATES DISTRICT COURT 2 CENTRAL DISTRICT OF CALIFORNIA 10 11 || INGENUITY 13 LLC, Case No. 2:12-cv-8333-ODW(JCx) 12 Plaintiff, PRENDA LAW, INC.’S NOTICE OF 13 V. APPEAL AND EMERGENCY MOTION TO THE NINTH CIRCUIT 14 || JOHN DOE, COURT OF APPEAL RE: THE DISTRICT COURT’S AMENDED i Defendant. ORDER DENYING IN PART AND CONDITIONALLY GRANTING IN 16 PART RESPONDENT PAUL DUFFY’S MOTION FOR APPROVAL OF BOND 17 AND ORDER STAYING ENFORCEMENT OF MAY 6 AND 18 MAY 21 ORDERS IMPOSING SANCTIONS AND PENALTIES 19 (Dkt Entry No. 177) 20 My TO THE COURT AND PARTIES AND RESPONDENTS AND THEIR - COUNSEL OF RECORD. - Specially appearing Respondent Prenda Law, Inc. (“Prenda Law’) hereby - serves Notice that it will be appealing the District Court’s Amended Order - Denying in Part and Conditionally Granting in Part Respondent Paul Duffy’s - Motion for Approval of Bond and Order Staying Enforcement of May 6 and May w 21 Orders Imposing Sanctions and Penalties (Dkt. Entry No. 177 — hereinafter, the - “Amended Order’).
te me re I ENF een eee eee CR nee eee ye PRENDA LAW, INC.’S NOTICE OF APPEAL AND EMERGENCY MOTION TO THE NINTH CIRCUIT
COURT OF APPEAL RE: THE DISTRICT COURT’S AMENDED ORDER (Dkt No. 177) 2:12-cv-8333-ODW(JCx)
KLINEDINST PC
501 West Broapway, Suite 600 SAN DieEGO, CALIFORNIA 92101
Case 2/12-cv-08333-ODW-JC Document 181 Filed 06/12/13 Page 2of3 Page ID #:3338
l In addition, Prenda Law will be filing with the Ninth Circuit Court of 2 || Appeals an emergency motion requesting alternative remedies pertaining to the 3 || District Court’s Amended Order. The Motion will request one or more of the 4 || following remedies: 5 1. An order vacating the Amended Order in its entirety and instructing the 6 District Court to grant and approve in its entirety, Paul Duffy’s Motion. 7 2. An order modifying the Amended Order to impose a bond requirement upon 8 the multiple appellants solely to cover any putative appellee’s appellate 9 costs, as opposed to the attorneys’ fees incurred by any appellee during 10 Prenda Law’s appeal. 1] 3. An order consolidating Prenda Law’s appeal of the Amended Order with 12 Prenda Law’s underlying appeal of the sanctions order issued by the District 13 Court in the order to show cause proceedings. 14 The bases for Prenda Law’s appeal is that absent an underlying and
15 || applicable cost-shifting statute, the district courts may not impose a bond
16 || requirement for an appellee’s attorneys’ fees as a pre-condition to appeal. See
17 || Azizian v. Federated Dep’t Stores, Inc., 499 F.3d 950, 958 (9" Cir. 2007).
18 The District Court, in its Amended Order, specifically cites to the Copyright
19 || Act as the basis by which it has imposed an additional bond requirement of just
20 || under $136,000 for Prenda Law and its co-appellants. However, the District Court
21 || has no jurisdiction by which to award attorneys’ fees pursuant to the Copyright
22 || Act, because Plaintiff in the underlying matter, pursuant to Federal Rule of Civil
23 || Procedure, Rule 41(a)(1), voluntarily dismissed the underlying copyright
24 || infringement action on January 28, 2013. Such dismissal is effective upon filing
25 || and removes the District Court’s authority to rule on the merits of the action. See
26 || Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1077-78 9" Cir.
27 || 1999). Thus, the Copyright Act cannot serve as a basis by which to impose the
28 || insuring of any putative appellee’s attorneys’ fees by way of a Federal Rules of PRENDA LAW, INC.’S NOTICE OF APPEAL <ND EMERG ENCY MOTION TO THE NINTH CIRCUIT
COURT OF APPEAL RE: THE DISTRICT COURT’S AMENDED ORDER (Dkt No. 177) 2:12-ev-8333-ODW(JCx)
KLINEDINST PC 501 West Broapway, SuITe 600 SAN DieGo, CALIFORNIA 92101
Case 2){1.2-cv-08333-ODW-JC Document 181 Filed 06/12/13 Page3of3 Page ID #:3339
Appellate Procedure, Rule 7, appellate bond.
Prenda Law shall also be challenging the conditions imposed upon Appellants by the District Court for the approval of both bonds imposed by the District Court.
Given the issues and legal authorities presented, and due to the onerous pre- conditions the District Court has imposed upon Prenda Law and its co-appellants, Prenda Law requests from the District Court an immediate, but temporary, stay of
enforcement of the District Court’s Amended Order to permit the Ninth Circuit
Oo CfO J DO WN B WH NO —
Court of Appeals to resolve Prenda Law’s pending emergency motion. Prenda 10 || Law will file its emergency motion with the Ninth Circuit Court of Appeals on or 11 || before Friday, June 14, 2013, and request from the Ninth Circuit a briefing
12 || schedule for any opposition or replies. Prenda Law will serve its motion and the
13 || Ninth Circuit’s briefing schedule to all interested appellate parties.
16 Klinedinst PC
DATED: June 12. 2013 By: li 19 Heather L. Rosing David M. Majchrzak 20 Philip W. Vineyard . Attorneys for oe Appearing for 24 PRENDA LAW. INC.
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ave eee aE i een Esper eer Tver OTe ee PRENDA LAW, INC.’S NOTICE OF APPEAL AND EMERGENCY MOTION TO THE NINTH CIRCUIT
COURT OF APPEAL RE: THE DISTRICT COURT’S AMENDED ORDER (Dkt No. 177) 2:12-cv-8333-ODW(JCx)