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Teller, An Individual v. Gerard Dogge (P/K/A Gerard Bakardy) An Individual

February 8, 2013



Presently before the court is pro se defendant's motion to seal. (Doc. # 22). Plaintiff filed a response (doc. # 27), and defendant has not filed a reply.

Also before the court is plaintiff's motion for waiver of service and personal jurisdiction defenses. (Doc. # 24). Defendant filed a response. (Doc. # 25). Defendant also filed an independent untitled motion (doc. # 26) that argues the same service and personal jurisdiction issues.*fn1 Plaintiff filed a response and reply to the motions. (Doc. # 32).

Also before the court is plaintiff's motion for clarification, or, in the alternative, motion for reconsideration. (Doc. # 31). Defendant filed a response in opposition (doc. # 40), and plaintiff a reply (doc. # 44). . . . . . .

I. Background

A. Factual Background

Plaintiff is a prominent magician. In 1976, Plaintiff developed an illusion known as "Shadows." (Compl., doc. # 1 at ¶14). Plaintiff successfully copyrighted the illusion with the U.S. Patent Office in 1983. (Id., Ex. 1). Plaintiff has performed the "Shadows" illusion in front of an audience thousands of times in Las Vegas and across the country, and the illusion has become the signature illusion of his entertainment career. (Id. at ¶ 16).

Defendant is likewise an entertainer, based out of Europe. (Id. at ¶¶ 18-19 & Ex. 2). Defendant allegedly, at some date in the past, traveled from Europe to Las Vegas and watched plaintiff's entertainment show in person. (Id. at ¶¶ 20-22). Defendant, without authorization from plaintiff, allegedly created an illusion known as "The Rose & Her Shadow" that is similar to plaintiff's signature illusion "Shadows." (Id. at ¶¶ 20-22). Defendant then posted a video of himself on YouTube performing the illusion and offering to sell the secrets to the illusion at the conclusion of the video. (Id. at ¶¶ 22-23).

After discovering the YouTube video, plaintiff's counsel contacted YouTube about taking down the video because it allegedly infringed on plaintiff's copyrights, and YouTube eventually complied. (Id. at ¶ 25). Plaintiff then contacted defendant and informed defendant about the potential infringement of plaintiff's illusion.*fn2 (Id. ¶¶ 26-29). Plaintiff and defendant then began informal settlement negotiations that proved unfruitful. (Id. at ¶¶ 26-29).

B. Procedural Background

The above referenced facts culminated in plaintiff filing a complaint in this court on April 11, 2012, for copyright infringement in violation of 18 U.S.C. § 106 and unfair competition under the Lanham Act, 15 U.S.C. § 1125(a). (See id.). . . .

Defendant's citizenship and current whereabouts are unknown, and have not been known since the commencement of the action. (See Compl, doc. # 1 at ¶18; Belgian Writ of Summons, doc. # 18, Ex. 1; doc. # 21).*fn3 On April 30, 2012, plaintiff hired a private investigator to locate defendant in Belgium and serve defendant with the summons and complaint. (Doc. # 11, Ex. 2). Additionally, plaintiff retained a top Belgian law firm to properly effectuate service upon defendant. (Doc. # 11, Ex. 3). To date, defendant has evaded personal service and cannot be located in Belgium, Spain, or in any other country in Europe. (See docs. ## 11 & 24).

Even without service, defendant became intimately knowledgeable of the details of this lawsuit. (See Belgian Writ of Summons, doc. # 18). On or about July 27, 2012, defendant filed a lawsuit against plaintiff in a Belgian court alleging defamation, among other things, based upon plaintiff's complaint and filings in the instant lawsuit. (Id.). It is worth noting that defendant filed his lawsuit in Belgium, based on the pleadings in the American lawsuit, before this court authorized service by publication. (Id.; Order Granting Motion for Service by Publication, doc. # 10). Defendant has been aware of the filings in this suit from the beginning.

After defendant filed the Belgian lawsuit, plaintiff filed an emergency motion for service by publication. (Doc. # 8). This court promptly granted service by publication using defendant's email address associated with the YouTube video. (Doc. # 10). Defendant has now made multiple filings with this court including responses to motions, defendant's own motions, and an answer to plaintiff's complaint. The court will address each motion in turn.

II. Motion to Seal

A court should "treat judicial records attached to dispositive motions differently from records attached to non-dispositive motions." Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006). "Those who seek to maintain the secrecy of documents attached to dispositive motions must meet the high threshold of showing that 'compelling reasons' support secrecy. A 'good cause' showing under Rule 26© will suffice to keep sealed records attached to non-dispositive motions." Id. (internal citations omitted).

Defendant states that "to prove to the Court how serious the Antwerp defamation case is, and how incriminating the [sic], by Mr. Teller, used documents are, it is necessary to show the US Court one of the exhibits used in the defamation litigation in Antwerp. These documents contains [sic] pornographic images." (Doc. # 22). Plaintiff counters by arguing that the proposed sealed evidence "is largely irrelevant . . ., lacks foundation, is presumably unauthenticated, and is meaningless without context." (Doc. # 27).

The court agrees with plaintiff. Whatever may be the current status of the lawsuit between these two in Belgium, it is presently irrelevant to this court and this lawsuit. The offered sealed exhibit--pornographic material--would have no bearing on the outcome of this lawsuit. It is irrelevant and unnecessary. The motion is denied. Defendant shall not file any pornographic material with this court as a sealed exhibit or otherwise.

III. Waiver of Service and Personal Jurisdiction*fn4 Plaintiff's motion (doc. # 26) seeks an order from this court holding that defendant has either

waived the defenses of service and personal jurisdiction or is subject to this court's jurisdiction outright. Defendant filed a response arguing against this court exercising personal jurisdiction and against waiving the service requirement. Defendant also filed a motion contesting personal jurisdiction and service.

The defendant filed an answer to the complaint contemporaneously with five unrelated motions that the magistrate judge has since resolved. Defendant filed his answer before: (1) the court ruled on plaintiff's motion to waive personal jurisdiction and service (doc. # 24); (2) the court ruled on defendant's own motion asserting personal jurisdiction and waiver defenses (doc. # 26); and (3) before plaintiff's motion to reconsider (which this court resolves in section IV infra) was even ripe.

The answer generally denies the copyright allegations, makes arguments regarding the defamation lawsuit currently pending in Belgium, and asks for a jury comprised of magicians. The answer is largely nonsensical. For example, defendant states "[m]agicians are like clowns, they only serve to entertain. Obviously stealing from each ...

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