Page 1 of 119UNITED STATES DISTRICT COURTDISTRICT OF SOUTH CAROLINACHARLESTON DIVISIONRighthaven LLC,Plaintiff,v.Dana Eiser,Defendant.C/A No. 2:10-CV-3075-RMG-JDA
SECOND AMENDED ANSWERAND COUNTERCLAIMS
The Defendant Dana Eiser hereby files this Second Amended Answer to thePlaintiff’s Amended Complaint and counterclaims against the Plaintiff Righthaven LLCas follows:
GENERAL MATTERS
1.
Defendant Eiser apologizes for the length and complexity of this pleading, butgiven the procedural rules regarding compulsory counterclaims, has no choice but toassert all good-faith claims it has against Righthaven.2.
Further, Righthaven’s previously-filed motion to dismiss repeatedly attackedEiser’s counterclaims as factually insufficient. Eiser hopes to have addressedRighthaven’s concern with this pleading.3.
Given the extensive factual background associated with this matter, DefendantEiser has attempted with each defense and cause of action to include only the most salientfacts relevant to the defense or cause of action. However, all facts and other material pledherein are to be deemed incorporated into each defense and cause of action unlessinconsistent.4.
Defendant asserts several inconsistent theories below. All inconsistent material is
2:10-cv-03075-RMG -JDA Date Filed 06/23/11 Entry Number 53 Page 1 of 119
Page 2 of 119pled in the alternative. Such inconsistent material may—or may not—be specificallydesignated as such.5.
Given the unusual nature of this case, several requests below constitute novellegal theories presenting issues of first impression. Defendant Eiser is not aware of anybinding precedent foreclosing the claims herein, but to the extent there is, DefendantEiser respectfully seeks that the Court allow good-faith argument for a change in the law.6.
Some allegations against Righthaven are made on the basis of vicarious liabilityof one form or another. Some vicarious allegations rest on agency theories, while somerest on a theory of joint-and-several liability applicable to joint venturers and co-conspirators.7.
Further, Defendant’s position is that as a matter of equity, Righthaven “stands inthe shoes” of
The Denver Post
(technically, MediaNews Group, Inc. d/b/a
The Denver Post
) for many of the defenses and claims here. Defendant most definitely seeks a judgment that Righthaven has no right to sue over infringements to the Rosen Letter, butit would be inequitable if Righthaven could come to Court asserting rights it well knowsit does not have, then use its lack of those rights to defend against counterclaims or defeatdefenses.8.
Similarly, Defendant Eiser submits that, for certain purposes in this litigation, shetoo is entitled to stand in the shoes of the Lowcountry 9/12 Group. It is an unusualsituation where a plaintiff with no standing sues the wrong defendant, but that is the storyof this case.9.
For ease of reference, the allegedly infringed work will be referred to as theRosen Letter.
2:10-cv-03075-RMG -JDA Date Filed 06/23/11 Entry Number 53 Page 2 of 119
Page 3 of 11910.
Any exhibits referenced below incorporated herein by reference.
PARTIES, VENUE, AND JURISDICTION
11.
Defendant Dana Eiser is a resident of Dorchester County, South Carolina.12.
Defendant Eiser is the current president of the Lowcountry 9/12 Project and hasbeen president at all times relevant to this action.13.
Plaintiff Righthaven LLC is a Nevada limited liability company.14.
The following are joint venturers and conspirators of Righthaven. Righthaven isvicariously and jointly and severally liable for their acts associated with the Righthavenscheme.15.
SI Content Monitor LLC is an Arkansas limited liability company. SI ContentMonitor is a member of Righthaven and has a direct, pecuniary interest in the outcome of Righthaven litigation. SI Content Monitor is owned by persons associated with theStephens family, the namesake of Stephens Media LLC.16.
Net Sortie Systems, LLC is a Nevada limited liability company. Net SortieSystems, LLC is a member of Righthaven and has a direct, pecuniary interest in theoutcome of Righthaven litigation. Net Sortie Systems, LLC is owned and managed byRighthaven CEO Steven Gibson.17.
Together, SI Content Monitor LLC and Net Sortie Systems, LLC own 100% of Righthaven.18.
Steve Gibson is a Nevada resident and attorney. Gibson is the CEO and managerof Righthaven. Gibson has worked on this case.19.
Dickinson Wright PLLC is a law firm organized as a professional limited liabilitycompany whose principal place of business is in Michigan and a successor in interest to
2:10-cv-03075-RMG -JDA Date Filed 06/23/11 Entry Number 53 Page 3 of 119
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Second Amended Answer and Counterclaim in Against Righthaven
Second Amended Answer and Counterclaim filed in Righthaven LLC v. Dana Eiser, Case No. 10-cv-03075 (D. S.C.)
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