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DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SANCTIONS AGAINST COUNSEL UNDER 28 U.S.C. § 1927 (Righthaven v. NewsBlaze)

DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SANCTIONS AGAINST COUNSEL UNDER 28 U.S.C. § 1927 (Righthaven v. NewsBlaze)

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Published by: rhvictims on Nov 15, 2011
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RandazzaLegal Group7001 W Charleston Blvd#1043Las Vegas, NV 89117(888) 667-1113
J. Malcolm DeVoy IV (Nevada Bar No. 11950) jmd@Randazza.comRANDAZZA LEGAL GROUP7001 W. Charleston Boulevard, #1043Las Vegas, Nevada 89117Telephone: (888) 667-1113Facsimile: (305) 437-7662Randazza.comAttorney for Defendants,
 NewsBlaze LLC and  Alan Gray
UNITED STATES DISTRICT COURTDISTRICT OF NEVADA
RIGHTHAVEN, LLC, a Nevada limited-liabilitycompanyPlaintiff,vs. NEWSBLAZE LLC, a California limitedliability company; and Alan Gray, an individual,Defendants.Case No.: 2:11-cv-00720
DEFENDANTS’ REPLY TOPLAINTIFF’S OPPOSITION TOMOTION FOR SANCTIONSAGAINST COUNSEL UNDER 28U.S.C. § 1927DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SANCTIONS AGAINST COUNSEL UNDER 28 U.S.C. § 1927
Defendants NewsBlaze LLC, and Alan Gray (collectively, “NewsBlaze,” or the“Defendants”), by and through their counsel, reply to Plaintiff Righthaven LLC’s (the Plaintiff’s)opposition to NewsBlaze’s motion to impose sanctions against Shawn A. Mangano (hereinafter “Mangano” or “Counsel”), counsel for Plaintiff, for unreasonably and vexatiously multiplyingthe proceedings in this action.
I. Introduction
Mr. Mangano’s opposition (Doc. # 28) fails to offer any substantive arguments againstthe imposition of sanctions under 28 U.S.C. § 1927. Instead, Mr. Mangano simply attempts todivert the Court’s gaze from his sanctionable conduct by throwing mud.
Case 2:11-cv-00720-RCJ -GWF Document 30 Filed 11/14/11 Page 1 of 12
 
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RandazzaLegal Group7001 W Charleston Blvd#1043Las Vegas, NV 89117(888) 667-1113
The fact is that after Mr. Mangano and his client lost the exact same argument eighttimes, Mangano still persisted in forcing this defendant to litigate the same issue a ninth time. Itis the Defendants’ position that
 perhaps
the first time that Mangano signed pleadings in directcontravention with the 9th Circuit’s holding in
Silvers
, it could have been a forgivable attempt.The same may have been true for the second and third times, with declining defensibility. Whenit came to being told eight times that he brought an unsupportable claim before the court, Mr.Mangano under a clear obligation to exercise some degree of client control; to refuse to bring theexact same arguments; or to dismiss a case with an inescapable outcome, such as this one, rather than to force a defendant to litigate the same exact issue a
ninth time
on grounds identical to the previous eight defeats. Forcing this issue nine times had no effect except to punitively imposelitigation expenses on this Defendant. This Defendant deserves to be made whole for theexpenses incurred due to that misconduct.In the Opposition, Mangano strenuously attempts to obfuscate the issues before theCourt.
1
Mangano argues that since he was given multiple warnings about his conduct before theinstant motion was filed, then the motion is not proper. To the contrary, such warnings indicate just how much restraint was shown before bringing this motion, and they indicate the degree of warning afforded to Mr. Mangano - giving him ample opportunity to change course. Finally,after Mr. Mangano forced a defendant to fully litigate Righthaven’s lack of standing for the
ninth time
, enough was enough, and a motion for sanctions finally was unleashed. The instantmotion came as no surprise to Mangano. He was warned, and he remained arrogant in the faceof such warnings. The instant motion is long overdue.//////
1
It is understandable that Righthaven’s counsel would vigorously oppose a motion for sanctions. Therefore, NewsBlaze asks the Court to forgive Mr. Mangano’s unnecessarily vituperative invective in the Opposition.However, while doing so, this Court should not fall victim to Mangano’s attempt to muddy the waters. For example,Mr. Mangano introduces numerous statements that were made in Rule 408 privileged discussions. However, noneof it is relevant to the issue at hand.
Case 2:11-cv-00720-RCJ -GWF Document 30 Filed 11/14/11 Page 2 of 12
 
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RandazzaLegal Group7001 W Charleston Blvd#1043Las Vegas, NV 89117(888) 667-1113
II. ArgumentA. Nothing But Sanctions Under § 1927 Will Curb Mangano’s Behavior, andThe Time for Their Imposition Has Arrived.
Mangano’s conduct
in this case alone
warrants the imposition of fees under § 1927.Mangano argues that his conduct in other cases is irrelevant. However, it is certainly proper for the Court to allow Mangano’s conduct throughout the Righthaven litigation campaign to informits decision. Section 1927 reads:Any attorney or other person admitted to conduct cases in any court of the UnitedStates or any Territory thereof who so multiplies the proceedings in any caseunreasonably and vexatiously may be required by the court to satisfy personallythe excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.To determine whether Mangano’s conduct was unreasonable or vexatious, it is mostcertainly proper to examine other cases in order to gauge his knowledge of subjectiveunreasonableness in this case. In
Garza v. Westergren,
908 F.2d 27 (5th Cir. 1990) an attorneyreceived 1927 sanctions for bringing an appeal where the issue was moot and the exact issue was previously on appeal before the court.
See also
 
 Lahiri v. Universal Music & Video Distrib.Corp
., 606 F.3d 1216 (9th Cir. 2010) (copyright plaintiff’s counsel who maintained an untenable position was properly sanctioned under 28 U.S.C. § 1927).If Mangano’s argument is accepted, wasting court and party resources is permissible aslong as an attorney engages in that conduct in a serial manner – before judge after judge – withno single judge finding enough bad faith to issue sanctions in his particular case. Suchaggregated behavior causes more damage and waste than could be accomplished in a single case.Eventually, it becomes incumbent upon a judge to examine an attorney’s behavior in theaggregate, seeing the misconduct in his own courtroom, and to connect the dots to draw the picture that exists here. That picture is one of a counsel who must be sanctioned, lest he believethat dilatory and wasteful actions before this Court will be indulged without limitation.While Mr. Mangano’s conduct before the District of Colorado and Ninth Circuit Court of Appeals cannot be the
basis
for sanctions, it is invaluable for informing the Court that what it has
Case 2:11-cv-00720-RCJ -GWF Document 30 Filed 11/14/11 Page 3 of 12

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