Case 2:12-cv-00591-JCM-GWF Document 56 Filed 02/08/13 Page 1 of 11
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEVADA
`
`2:12-CV-591 JCM (GWF)
`
`TELLER, an individual,
`
`Plaintiff(s),
`
`v.
`
`GERARD DOGGE (p/k/a Gerard
`Bakardy) an individual,
`
`Defendant(s).
`
`ORDER
`
`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.1 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).
`
`. . .
`
`. . .
`
`1 Defendant’s response (doc. # 25) and motion (doc. # 26) are identical documents.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`James C. Mahan
`U.S. District Judge
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 56 Filed 02/08/13 Page 2 of 11
`
`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.2 (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.).
`
`. . .
`
`2Plaintiff contacted defendant via an email address that defendant posted to his own YouTube
`video. Communications occurred between plaintiff and defendant before the initiation of this lawsuit
`and before defendant went “underground” to evade service. (See doc. # 8, Declaration of Mark
`Tratos, Attachment 1).
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`James C. Mahan
`U.S. District Judge
`
`- 2 -
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 56 Filed 02/08/13 Page 3 of 11
`
`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).3 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
`
`3 These documents suggest that defendant is most likely either a Dutch or Belgian citizen.
`They further suggest that defendant could either be in Belgium, Spain, or any other country in
`Europe.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`James C. Mahan
`U.S. District Judge
`
`- 3 -
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 56 Filed 02/08/13 Page 4 of 11
`
`‘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 Jurisdiction4
`
`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
`
`4 The court notes that this argument between the parties continues in defendant’s untitled
`motion (doc. # 26) and plaintiff’s response/reply (doc. # 32). The court agrees with plaintiff’s
`characterizations of defendant’s arguments in that they are bizarre and irrelevant.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`James C. Mahan
`U.S. District Judge
`
`- 4 -
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 56 Filed 02/08/13 Page 5 of 11
`
`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 other is out of the question, and this has not
`
`happened here.” (Doc. # 39, 8:25-27).
`
`The defendant filed an answer to the complaint and thereby waived the defenses of personal
`
`jurisdiction and service. However, in the interest of justice, the court will go to the merits of both
`
`personal jurisdiction and service–even though those defenses have been waived. The court
`
`ultimately concludes that it has personal jurisdiction over the defendant and that service was proper.
`A.
`Personal Jurisdiction
`
`This court must consider the following three-prong test for analyzing a claim of specific
`
`jurisdiction:
`
`“(1) [t]he non-resident defendant must purposefully direct his activities or consummate some
`transaction with the forum or resident thereof; or perform some act by which he purposefully
`avails himself of the privilege of conducting activities in the forum, thereby invoking the
`benefits and protections of its laws;
`
`(2) the claim must be one which arises out of or relates to the defendant’s forum-related
`activities; and
`
`(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must
`be reasonable.”
`
`Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). “The plaintiff bears
`the burden of satisfying the first two prongs of the test.” Id. “If the plaintiff succeeds in satisfying
`
`both of the first two prongs, the burden then shifts to the defendant to ‘present a compelling case’
`that the exercise of jurisdiction would not be reasonable.” Id. (citing and quoting Burger King Corp.
`v. Rudzewicz, 471 U.S. 462, 476-78 (1985).
`
`With respect to prong one, a plaintiff must establish that the defendant either purposefully
`availed or purposefully directed him or herself to the forum state. See id. at 802. A purposeful
`
`direction analysis is appropriate for suits sounding in tort, whereas purposeful availment is more
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`James C. Mahan
`U.S. District Judge
`
`- 5 -
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 56 Filed 02/08/13 Page 6 of 11
`
`appropriate for suits sounding in contract. Id. (citing Dole Food Co., Inc v. Watts, 303 F.3d 1104,
`
`1111 (9th Cir. 2002). For purposeful direction, courts should also consider the three-part effects test
`from Calder v. Jones, 465 U.S. 783 (1984). “Under Calder, personal jurisdiction can be based upon:
`
`(1) intentional actions (2) expressly aimed at the forum state (3) causing harm, the brunt of which
`is suffered-and which the defendant know is likely to be suffered-in the forum state.” Panavision
`Int’l., L.P. v. Toeppen, 171 F.3d 1316, 1321 (9th Cir. 1998). The purposeful direction test applied
`for tort cases encompasses trademark and copyright suits. Id.
`
`Defendant eventually filed an answer in this case, a response to plaintiff’s motion to waive
`
`personal jurisdiction and service, and his own independent motion addressing waiver and personal
`
`jurisdiction issues. (Docs. ## 25-26, 30). Plaintiff alleges to have met defendant when defendant
`
`approached him after a show. Defendant admits to spending a week in Las Vegas. Defendant also
`
`cannot deny there is a YouTube video of him performing an illusion that appears to be very similar
`
`to the illusion “Shadows” performed by plaintiff on an almost nightly basis for several years at his
`
`shows in Las Vegas. If the intentional acts by defendant were going to have effects anywhere, it
`
`would be Las Vegas.
`Plaintiff can establish the first two prongs under Schwarzenegger and each part of the effects
`test from Calder. The defendant purposefully directed his activities (a YouTube video) at the forum
`
`and it seems as if defendant learned of the illusion in the video by seeing a show in Las Vegas. The
`
`court further finds that the exercise of personal jurisdiction is reasonable. Defendant is subject to
`
`the personal jurisdiction of this court.
`B.
`Service
`A personal jurisdiction and service analysis intertwine in certain contexts. See Benny v.
`Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (“A general appearance or responsive pleading by a
`
`defendant that fails to dispute personal jurisdiction will waive any defect in service or personal
`
`jurisdiction.”). A federal court does not have personal jurisdiction over a defendant unless the
`defendant has been served properly under Federal Rule of Civil Procedure 4. McCarty v. Roos, no.
`11-cv-1538, 2012 WL 2885174, at *2 (D. Nev. July 12, 2012) (citing Direct Mail Specialists, Inc.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`James C. Mahan
`U.S. District Judge
`
`- 6 -
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 56 Filed 02/08/13 Page 7 of 11
`
`v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). Nevertheless, “Rule 4 is a
`
`flexible rule that should be liberally construed so long as a party receives sufficient notice of the
`complaint.” Benny, 799 F.2d at 492 (quoting United Food & Commercial Workers Union v. Alpha
`Beta Co., 735 F.2d 1371, 1382 (9th Cir. 1984)).
`
`Throughout the course of this litigation, defendant has admitted the he is fully aware of all
`
`pertinent happenings, motions, and developments; however, he insists that service has been
`
`inappropriate. Defendant has even stated “I will, after being served in the legal way, obey to the
`
`Court [sic] by taking my responsibility, I will defend myself and prove that there was no copyright
`
`infringement at all.” (Doc. # 21, 3:15-17). Defendant continues by stating, “[i]t is also not logic to
`
`think I should file a ‘counterclaim’ since I have not been informed officially by legal service of
`summons.” (Id. at 3:18-19). However, this court already permitted service by publication to an
`
`email address that defendant listed on his own YouTube video, and plaintiff has attached proof that
`
`defendant opened the emails. (Declaration of Cynthia Nay, Doc. # 24, Attachment 1, Exs. 2-3). The
`
`only reason defendant has not been personally served, as in a copy of the summons and complaint
`
`delivered into defendant’s hand, is because defendant surreptitiously evaded substantial attempts of
`
`service by plaintiff.
`
`Further, “[t]he general attitude of the federal courts is that the provisions of Federal Rule 4
`
`should be liberally construed in the interest of doing substantial justice and that the propriety of
`
`service in each case should turn on its own facts within the limits of the flexibility provided by the
`rule itself.” Wright & Miller, 4A Fed. Prac. & Proc. Civ. § 1083 (3d ed.); see also Petrie v. C.I.R.,
`
`686 F.Supp. 1407, 1411 n. 5 (D. Nev. 1988) (stating that the interpretation that Rule 4 be construed
`
`to do substantial justice “is consistent with the modern conception of service of process as primarily
`
`a notice-giving device.”). “The party on whose behalf service of process is made has the burden of
`
`establishing its validity when challenged; to do so, [he or] she must demonstrate that the procedure
`
`employed to deliver the papers satisfied the requirements of the relevant portions of Rule 4 and any
`other applicable law.” Id.
`
`. . .
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`James C. Mahan
`U.S. District Judge
`
`- 7 -
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 56 Filed 02/08/13 Page 8 of 11
`
`In defendant’s first filing the court, he states “I’m over the age of 18 years and residing in
`
`Belgium – Europe.” (Doc. # 16; 1:19).5 When serving an individual in a foreign country, Rule
`
`4(f)(1) states service can be made “by any internationally agreed means of service that is reasonably
`
`calculated to give notice, such as those authorized by the Hague Convention on the Service Aborad
`
`of Judicial and Extrajudicial Documents.” However, Article I of the convention states that it “shall
`
`not apply where the address of the person to be served with the document is not known.” Hague
`
`Service Convention, art. 1, Nov. 15, 1965, 20 U.S.T. 361.
`
`Defendant’s location and address are unknown because he has purposefully gone
`
`underground in an attempt to subvert service. Even though the Hague Convention never applied to
`
`defendant, plaintiff has made substantial efforts to comply with the treaty and properly provide
`
`notice to defendant. Plaintiff has attempted to serve defendant in all the following ways: retaining
`
`a Belgian law firm to assist with service; hiring the Firbank Bureau Investigation, international
`
`private investigators, to locate defendant; mailing defendant certified copies of the complaint and
`
`summons to every rumored address of the defendant; mailing and attempting to personally serve
`
`defendant at the address listed in his own complaint in the Belgian action; mailing a copy of the legal
`
`proceedings and emailing a copy of the complaint and summons to the counsel listed by defendant
`
`in his Belgian complaint; and, hiring a Belgian bailiff to attempt to personally serve defendant at
`every rumored address. (See docs. ## 1, 8, 11, 24).
`
`This court has already permitted service by publication pursuant to Rule 4(f)(3) because
`
`defendant’s address and whereabouts are unknown and therefore the Hague Convention does not
`apply. (Doc. # 10). “Rule 4(f)(3) is neither a last resort nor extraordinary relief.” Rio Properties,
`Inc., v. Rio Int’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). In Rio, the Ninth Circuit permitted
`
`email service by publication because the defendant “listed no easily discoverable street address in
`
`the United States or [abroad] . . . and designated its email address as its preferred contact
`
`5 In defendant’s second filing with the court, he states that he resides and works in “Europe,
`mainly in Belgium and Spain.” (Doc. # 21; 1:17). In his answer, he states he resides in Belgium.
`(Doc. # 39).
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`James C. Mahan
`U.S. District Judge
`
`- 8 -
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 56 Filed 02/08/13 Page 9 of 11
`
`information.” Id. at 1018. Like the defendant in Rio, “[i]f any method of communication is
`reasonably calculated to provide [defendant] with notice, surely it is email.” Id. at 1018. In fact, one
`concern of the Rio court was that “there is no way to confirm receipt of an email message.”
`
`However, here, defendant has responded to email and in fact responds only to emails. Plaintiff has
`
`even provided receipt verification documents that defendant has read the pertinent emails.
`
`This court has held that the purpose of Rule 4 is to fairly apprise the defendant of the cause
`of action against him and the facts supporting the claims. Roos, 2012 WL 2885174, at *2 (“Rule 4
`
`is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the
`
`complaint.”). Plaintiff, probably at great expense, attempted to serve defendant through multiple
`
`avenues. One of the methods, probably service by publication via email, effectuated service and
`
`defendant is apprised of all the pertinent happenings in this lawsuit. The court finds that plaintiff
`
`has successfully and appropriately served defendant.
`IV. Motion to Reconsider or Clarify
`
`Plaintiff requests that this court clarify, or, in the alternative, reconsider its prior order. This
`court has already declined to issue an anti-suit injunction. (See doc. # 28). Plaintiff now moves the
`
`court to enjoin defendant from arguing the substance of the claims in this court, copyright
`
`infringement, in the Belgian action. The court will not enjoin defendant from pursuing his
`
`defamation case in Belgium or from raising any arguments in that court.
`
`The relief sought by plaintiff is very similar to the relief sought previously in plaintiff’s
`
`request for an anti-suit injunction. Plaintiff first moved this court for an order enjoining defendant
`
`from pursing his defamation claims in Belgium. Now, plaintiff moves this court to enjoin defendant
`
`from defending the merits or arguing the merits of this case in the Belgian court. However, this court
`
`will not enjoin defendant’s actions in the Belgian action.
`
`Motions for reconsideration “should not be granted, absent highly unusual circumstances.”
`Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). “Reconsideration is
`
`appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear
`
`error or the initial decision was manifestly unjust, or (3) if there is an intervening change in
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`James C. Mahan
`U.S. District Judge
`
`- 9 -
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 56 Filed 02/08/13 Page 10 of 11
`
`controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); Kona, 229
`
`F.3d at 889-90 (listing same three factors).
`
`First, plaintiff argues that this court should enjoin defendant from raising the copyright claims
`
`in dispute in this case in the Belgian lawsuit. Plaintiff argues that defendant’s filings in the Belgian
`
`litigation indicate he may litigate the copyright claims in Belgium. This court declines to enjoin
`defendant from litigating any claims in Belgium. See Quaak v. Klynveld Peat Marwick Goerdeler
`Bedrijfsvrevisoren, 361 F.3d 11, 17 (1st Cir. 2004) (“The decisional calculus must take account of
`
`th[e] presumption in favor of concurrent jurisdiction.”) (considering anti-suit injunctions).
`
`In the alternative, plaintiff argues that the newly discovered evidence that warrants
`
`reconsideration is the fact that defendant is becoming more vexatious and harassing in the Belgian
`
`suit. It is true that defendant’s defamation suit in Belgium against the plaintiff in this case has a
`
`vexatious flavor. The court implied as much in its last order. However, as stated in this court’s
`
`previous order, the vexatiousness consideration is one of seven total considerations in a three step
`
`test on anti-suit injunctions. The vexatious flavor of the Belgian suit alone cannot overcome the fact
`
`that no other factor weighs in favor of an anti-suit injunction. The motion to reconsider does not
`even make arguments about the other considerations in the complete three step test from Microsoft
`Corp. v. Motorola, Inc., 696 F.3d 872 (9th Cir. 2012).6 The motion to reconsider is denied and the
`
`motion to clarify moving this court from enjoining any of defendant’s activities or arguments in a
`
`Belgian court are denied.
`
`IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant’s motion to seal
`
`(doc. # 22) be, and the same hereby, is DENIED.
`
`IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion to
`
`waive service and personal jurisdiction (doc. # 24) be, and the same hereby, is GRANTED.
`
`6 Motions for reconsideration are not appropriate when a party wants the court to think about
`the issue again in the hope that the court will come out the other way the second time. Rather,
`motions for reconsideration are appropriate after the discovery of “newly discovered evidence”, if
`the court previously committed “clear error”, or “if there is an intervening change of law.” AcandS,
`5 F.3d at 1263.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`James C. Mahan
`U.S. District Judge
`
`- 10 -
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 56 Filed 02/08/13 Page 11 of 11
`
`IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that defendant’s untitled
`
`motion (doc. # 26) be, and the same hereby, is DENIED.
`
`IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion to
`
`clarify or reconsider (doc. # 31) be, and the same hereby, is DENIED.
`
`DATED February 8, 2013.
`
`
`
`
`UNITED STATES DISTRICT JUDGE
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`James C. Mahan
`U.S. District Judge
`
`- 11 -