0:00:00
Hon. Bennett: Let's go on the record in the case of Russell Greer versus Joshua Moon et al. This is case 2 colon 2 4 CV 4 2 1. We're here today to address a whole series of motions.
Hon. Bennett: I've got representing himself, Mr. Greer, and I have Mr. Harden representing the defendants. What I'd like to do today is take up all the motions in five different categories. The first category I'd like to take up is the sanctions motion. So we'll be dealing in this category with ECF number 228, which is Mr. Harden's motion regarding sanctions. Then ECF 243, which is Mr. Greer's Rule 60B motion.
0:00:42
Hon. Bennett: As to ECF number 228, I know Mr. Harden is seeking attorney's fees over $5,000. But I think Judge Barlow and ECF 230 already addressed that and set the fees, at least as to the failure to disclose the initial disclosures at $1,000. And so as to that part, I think that motion is moved. Now, I understand that Mr. Greer has not paid those fees yet and that Mr. Greer is asking for a some reconsideration, or at least a stay, I should say, on that. We'll address that later. But as to the $1,000, it's still pending.
0:01:21
Hon. Bennett: But beyond that, as far as sanctions go, for the failure to disclose in the disclosure order, it seems like Judge Bartlett has already taken care of that. Do you see it differently, Mr. Hardin?
Hardin: Your Honor, I agree that you can't overrule Judge Barlow. For the record, I want to preserve it. We filed that motion before his ruling came out. We obviously think we're entitled to it, but I recognize that a magistrate judge can't overrule a district judge, so you can't do anything with it.
0:01:55
Hon. Bennett: Appreciate that. I'm glad we see it the same way, at least as to my authority. So go from there. As to ECF number 243, so here Mr. Greer filed under Rule 60B, a motion that basically seeks to talk about sanctions under Rule 37 for a different discovery motion to compel that I ordered. So back in ECF 227, Mr. Hardin had moved to see for the production of a state court restraining order denials. Mr. Greer didn't respond to the motion to compel, so the court granted it. I then ordered Mr. Greer to address whether the court should award fees for the motion to compel.
0:02:30
Hon. Bennett: Mr. Greer, instead of filing that response, instead basically filed a different motion under Rule 60B seeking to have that ruling set aside. So, Mr. Greer, let's talk about Rule 60B for a moment. The rule itself talks about setting aside A judgment is not an interlocutory order. It's a final judgment. So the final judgment in a case is something that Rule 60B pertains to, not a discovery sanction. So Rule 60B is not an appropriate vehicle to seek to overturn or seek to address a discovery sanction in the middle of a case. As you pointed out, the discovery sanction itself is not an appealable order. So Rule 60B doesn't quite fit. However, what I'm going to liberally construe ECF 243 would be a response under Rule 37A, it's your opportunity to be heard.
0:03:41
Hon. Bennett: Based on the factual representations in your motion, it seems that you were in the process of trying to track that motion or that order down. We had provided Mr. Hardin at least the case number, and understandably, he was unable to get it given the sensitive nature of the documents. He had to do it, and he eventually did.
Hon. Bennett: Looking at the relevance of that document to the actual, at least at the time of the order, the complaint was basically dealing with copyright and its defenses to copyright. Now, I understand that this may be relevant at some level for the defense here, but this is certainly not a document that's central to copyright. So for those questions as to under Rule 37A5 for ECF 227, because I find that here, given those factual representations, given the nature of the document, given the fact that Judge Barlow has already imposed sanctions in the amount of $1,000 for Mr. Greer's failure to disclose, which I think is the more egregious violation here, that award of fees here under 37A5 would be unjust.
0:04:21
Hardin: Your Honor, can I make a record?
Hon. Bennett: Of course.
Hardin: Thank you, Your Honor. I think that the statement that the court made as to the facts of the underlying thing that we requested are a little bit incorrect. So to summarize, Mr. Greer said when he received a discovery request and there was some correspondence, he said he had a restraining order. uh on on uh joshua connor who is joshua moon it's joshua connor moon uh so he said he had a restraining order he didn't say there's a denial he said he had a restraining order and he would be happy to mr greer i'll give you a chance to respond in a second we don't talk over each other okay And that's cited in the motion. It's in an email and it's cited in the underlying motion. So I think that it's unclear to me, although I do have now from a third party, not from the court, from a third party, I now have a copy of a court order from Utah saying that Mr. Greer was denied a court order. I do not have a court order granting a restraining order, which is what I was led to believe there was. I also don't have anything that Mr. Greer himself provided. And I think that's really relevant here because Mr. Greer made representations to the court in Utah that Mr. Moon had aggrieved him in whatever way, and that that was grounds for giving a restraining order. The Utah court, apparently, at least in the one case that I'm aware of, denied the restraining order, but I haven't seen the underlying allegations. And I think that those underlying allegations, especially because we're arguing about duplicative claims in this court and what damages might overlap, I think those underlying allegations are incredibly relevant. I have not seen his underlying uh, allegations. And again, I want to emphasize, he did not send me anything at all, including this denial that was obtained from a third party, all that Mr. Greer sent me. And this was again, after the motion to compel all that Mr. Greer sent me is a, um, uh, public records request denial from the state of Utah. So some third party apparently named Jim Jordan had requested these records from the court in Utah. The court in Utah denied Jim Jordan the records and sent the denial to Mr. Greer. Mr. Greer then reached out to me and said, Who's Jim Jordan? And I had no idea what he was talking about. Jim Jordan. I wasn't involved in that underlying records request. I don't know who Jim Jordan is.
0:06:48
Hardin: But in any event, that's that's how I came to find the case number. And eventually I now have an order. But again, I want to emphasize that I don't have an order granting a protective order, which is what I was led to believe there was. I don't have Mr. Greer's underlying allegations. And so for those reasons, I think he has still not complied with the motion to compel. And of course, that because he has still not complied with the motion to compel, the court should either require compliance or if he's now amending his statement, should award attorney's fees because we've had to go through this rigmarole. Thank you, Your Honor.
0:07:25
Hon. Bennett: Well, I appreciate it, Mr. Hardin. That provides some insight that I don't think I quite understood from the briefing. So, Mr. Greer, help me understand in terms of what it is you've produced here. I got the impression reading the document that you provided in your Rule 60B motion that you had provided, you said you were going to, and you had provided the documents that the court ordered you to produce in Order 227. So help me understand where you think you're at there.
0:07:57
Greer: Okay, I told Mr. Hardin on the phone I did not have access to those documents. I told him on the phone, and during one of our meetings with him, I said I would try to hit it for him.
Greer: Bizarrely, after that phone call, a person named Jim Jortzen tried hitting that document. So that led them to believe that someone was listening in on a phone call between Mr. Hardin and I. I forwarded that document to Mr. Hardin. I forwarded the email of the notice to Mr. Hardin, and I said, this is what I'm talking about. Who is Jim Jordan? This is the case I'm talking about. And I thought it resolved that. I thought he could look up the case. And himself, I, I did not receive any further notice that he was denied access to that document. And I, just for the record, I never said I had a restraining order on him. It was traveled in the statement. I typed on my phone a lot. And so it was probably an error on my phone. And, uh, there was no, Mr. Harden never told me about any confusion. And that's the honest truth.
0:09:29
Hon. Bennett: Well, hold on a second. So, Mr. Greer, help me understand why you wouldn't have access to your own court records involving them. That's something that's beyond me.
Greer: I've told Mr. Hardin I have limited storage on my phone. And so I will delete documents from many years ago. And I don't really know how to access the document. I'm not sure if I have to file a request to the Utah District Court or what.
0:10:06
Greer: And so as I said, after we had that conversation, that is when a third party tried to put in the document. And so I forwarded that to him, and I thought that was the end of it. He never once reached out to me and said, hey, I can't get this.
0:10:45
Greer: At least to my knowledge, I never got any other emails asking about this document.
Hon. Bennett: And I apologize. So a couple things, Mr. Greer. Number one, I mean, it sounds to me like you haven't really done much to find out how to get that document. You have access to it. It's your case file. You can go to the court and ask the clerk for it and see if they'll give it to you. I mean, they should. It should be in the archives.
Hon. Bennett: And the fact that you haven't even tried that is of concern to me.
Hon. Bennett: Number two, I'm not quite sure why you haven't gone and done that. Why haven't you asked the court to produce this record yet?
0:11:31
Greer: I thought Mr. Hardin was putting the document himself. I gave him the case number. He never once emailed me saying, hey, I can't access this.
Hon. Bennett: But Mr. Greer, he filed a motion to compel.
Hon. Bennett: That's pretty good buildings.
Greer: That was the document I forgot to reply to. And that's when I tried asking for reconsideration of it. I saw that and I forgot to reply to it.
0:12:09
Hon. Bennett: Well, Mr. Green, it's not a matter of forgetting to reply to it. That's the issue here. The issue is the fact that what you just said a moment ago was that Mr. Harden didn't give you any notice that he was unable to access it. The motion to compel was pretty clear initially.
Hon. Bennett: communication from Mr. Harden that he hasn't received it yet. He wasn't able to access it. So to say that he didn't let you know that seems factually incorrect. Help me understand what I'm missing here.
Greer: I missed the court order. I didn't reply to it, and I am sincerely sorry, but I was also going to say it really has no relevance to this case. I have been stopped. And that's why I never provided it. It was misunderstanding on my end and relevant.
0:12:45
Hon. Bennett: Well, I appreciate the fact that you're objecting to its relevance, but the problem is by not responding to the motion, you've basically waived the ability to argue that it's not relevant. I mean, that's why I ordered you to produce it.
0:13:29
Hon. Bennett: The Rule 60B motion that you filed asking me to reconsider doesn't really address relevance whatsoever. We're long gone from the ability to respond to this motion. I mean, we're months away from that now. And so you've been ordered to provide it. You haven't done so yet. I was under the impression, based on what you've represented in writing, that you were you had done that or you were in the process of doing it at the time that Mr. Harden had asked for it. But it sounds to me like that hasn't happened or if you really looked into whether it could happen by using the local court here to see if you can get a copy of that order. And unfortunately, that's not acceptable. So I'm going to order you within the next 14 days to get a hold of the court where this was filed and get a copy of that case file
0:14:11
Hon. Bennett: Mark it confidential, attorney's eyes only, and provide it to Mr. Hardin.
Hon. Bennett: Yes, Your Honor. I understand.
Hon. Bennett: That way, and to be clear, because it's going to be marked confidential, attorney's eyes only, if this shows up on a website, there's going to be contempt sanctions that will be imposed on whoever does it.
0:14:47
Hon. Bennett: So let's be perfectly clear on that, too, because I understand that you're concerned about whatever you produce seems to, at least some things at least, seem to find their way onto the website Kiwi Farms. I'm just going to let everybody know right now that that better not happen or else they may get a visit from the United States Marshal Service, and that's not something I think they want to do. So market appropriately under the standard protective order, you're now aware of how that works based on some of the other – motions that we have to take up today. In terms of attorney's fees, I'm going to reserve on that ruling for a moment in terms of under Rule 3075, see what's produced. I'll ask for a status conference. So, Mr. Hardin, within 21 days, I just ask for a status report. If you could just file a status report, let me know what it is you've received, if anything, and then we can address the issue of fees under ECF 227 at that point. Does that make sense?
0:15:28
Hardin: Yes, Your Honor. Just again, for the record, I want to make clear that our position on what happened at various meet and confers viciously disagrees with Mr. Greer's representations just now. I won't belabor that point because the court has ruled, but I want to make clear that we are not agreeing to the facts that he proffered a moment ago.
0:16:02
Hon. Bennett: Yep. I don't think you have to in order for this to move forward. What is going to happen is he needs to get those documents that I've ordered him to produce.
Hon. Bennett: And if not, then we'll be addressing, I mean, it's not just attorney fees we'll be addressing. If we don't at least see some and understand, if they're not produced, then we're going to have to reconvene and figure out Why not? And if they're just not produced because he's not just doesn't want to get around to it, then we're going to be talking about Rule 37B sanctions in terms of case termination for failure to cooperate in discoveries and which would include fees, among other things. So we're getting to that point here. But I want to at least give him 14 days to get that over to you. We'll then reassess where we're at and then make a determination of what to do from there.
0:16:40
Hardin: Thank you, Your Honor.
Hon. Bennett: All right, let's take a look at the Rule 11 sanctions. So in ECF No. 234, the defendants are seeking Rule 11 sanctions against Mr. Greer for two things. Number one, alleging that the defendants violated the standard protective order, even though Mr. Greer had not read it, apparently. And then also stating to the federal district court in the Middle District of Florida, Mr. Greer had witnesses, including Mr. his father and an individual who had passed away. But then later stating that all those witnesses had no relevant information. And I think Mr. Taylor was, Mr. Greer characterized as eager to testify, but it turns out that Mr. Taylor had passed away some months before that representation. Is that an accurate assessment, Mr. Hardin of your, your motion there?
0:17:12
Hardin: Yes, Your Honor, it's an accurate assessment. I'll point out, too, this sort of ties into an underlying motion that we have withdrawn related to an adverse inference from Mr. Taylor. In Mr. Greer's response to that motion, he seems to indicate that he had not spoken to Mr. Taylor since 2021 when they had a falling out. in 2024 is when he made the representation in florida that mr taylor was eager to testify and of course mr taylor was deceased at that point so there's a gap of several months between mr taylor's demise and that statement and there is a gap of several years since mr taylor had last spoken to mr greer thank you so mr greer help me understand why you made the statement to the middle district the court the middle district of florida that mr taylor was eager to testify if you hadn't spoken with him for at least three years
0:18:34
Greer: I was listening to every person I had talked to. I thought I explained this in my response. I had explained that I had listened to every person I had talked to about people who would testify. And when I wrote that, you're right, I had not spoken to him in a few years.
Greer: And I should have probably made sure he was still interested and still alive before I wrote that. I had no idea he was dead until earlier this year.
0:19:17
Hon. Bennett: Okay.
Hon. Bennett: Mr. Harden, any follow-up on that particular point?
Hardin: I think that in the context of the sanctions motion, Mr. Greer did not respond to that argument. He responded entirely to the protective order. If we liberally construe his response to the earlier motion relating to an adverse inference as a relation to the sanctions motion, I think that it still fails because he's confessing that he didn't do any due diligence before he made that representation. He said somebody was eager, and now he says it was a mistake. He probably should have done more. Well, I think that the standard under Rule 11 is an objective standard. It is objectively unreasonable to say that someone is eager to testify if you haven't talked to them in three years and if they've been dead for five or six months. I think that's just objectively a problem. It has caused great prejudice in this case, and I think that sanctions are appropriate.
0:19:48
Hon. Bennett: So would you, just for purpose of the record, let's further elaborate on the great prejudice that this has caused. I mean, I know that it was in the Middle District of Florida. I think one of the reasons that the district court judge there sent it back to Utah was for development of the witnesses. Could you talk a little bit more about that point?
0:20:27
Hardin: Yes, Your Honor. So the middle district or the Northern District of Florida, rather.
Hon. Bennett: Northern District.
Hardin: Yes, it was the Northern District in Pensacola. Mr. Greer filed this motion saying that he needed to go back to Utah because if he didn't go back to Utah, Steve Taylor couldn't testify. It was actually more than just Steve Taylor was alive and was eager. Steve Taylor couldn't possibly come to Florida. Steve Taylor needed to testify in Utah. and the Northern District of Florida transferred back to Utah, I will admit not expressly on those grounds, but the Northern District of Florida did transfer after Mr. Greer filed that pleading saying this case cannot be adjudicated unless it goes back to Utah. Then we got back to Utah and we started disclosing witnesses. And I guess that's a charitable interpretation to say we started disclosing witnesses, but we got back to Utah. Mr. Greer disclosed two witnesses who were not Mr. Taylor and did not even disclose himself. We started issuing subpoenas trying to figure out what we needed to do to develop this case, going to great expense to issue these subpoenas. Mr. Greer ended up saying that his father and brother had no relevant testimony and that he would call no other witnesses. After saying he had other witnesses that were eager to testify, many other real witnesses, real was actually in all caps, He decided that he had no witnesses that he wanted to testify once the case got back to Utah. This whole time we had been subpoenaing folks for depositions. We were trying to locate Steve Taylor. I spent quite a bit of time trying to locate Steve Taylor. And in fact, it was my failure to locate Steve Taylor and Mr. Greer's failure to answer questions about Steve Taylor that led me to file the motion for an adverse inference about Steve Taylor, because it seemed to me that he was hiding Steve Taylor. At that point, Mr. Greer's story was that he had not disclosed Mr. Taylor because there was a falling out between the two of them. And he seemed to think, Mr. Greer seemed to think that there was a reason that he could just choose not to disclose someone if he had had a falling out with them. And of course, my position is I would much rather talk to somebody that Mr. Greer has had a falling out with than somebody that's on Mr. Greer's team. I think that makes him even more vital for discovery. So I'm trying to track this guy down that Mr. Greer has had a falling out with I'm failing. I file a motion related to adverse inferences. And then Mr. Greer comes in and says, oh, actually, he's dead. So that was several months of me pursuing it. And and Mr. Greer changing his story several times. And I gather from his opposition that he didn't even look into whether Mr. Taylor was dead until I filed the adverse inference motion. And then he found an obituary and attached it. He was able to do that. I, of course, Steve Taylor is a very common name. So that was part of the reason why we couldn't locate Mr. Taylor is it's just such a common name. We had no idea he was dead until Mr. Greer filed that obituary. So all of that was needless expenditure. And I think that it's it's prejudicial to the defense. It's also prejudicial to the legal system. that we had this case bouncing back and forth between courts. And I think that it shows the nature of how this plaintiff just files things. He doesn't think about it. He doesn't research it. He just pops off at the mouth or the pen and files it. And I think that that is something that's worthy of sanctions as well. Thank you, Your Honor.
0:23:33
Hon. Bennett: Mr. Greer, any response to that?
Greer: Yes, Your Honor.
Greer: So I... As you'll probably notice, Mr. Hardin will latch on to individual words I say and not focus on the entire argument. And so, first of all, there is no great prejudice because Joshua Loon hasn't lived in Florida for a long time. There was there was rumors that he was living abroad or living elsewhere. And that was after a conversation that we had, I had with my appeals attorney, was how would we collect anything from him if he's living overseas? So they haven't even, Mr. Harden hasn't even said if Joshua is even living in Florida or not. And so... That sort of cuts into their prejudice argument. As for Steve Kaler, again, I misspoke. I was listing every person I had talked to who could be a witness. I was unaware he was dead. However, Scott Greer and Nathan Greer both said that they would testify. But then... Once they talked back to Utah, when I talked to them again, they suddenly claimed they had nothing to offer. And so I even told my brother, I said, hey, you just put me in a really bad situation. I look like a liar now.
0:25:20
Greer: And I tried providing text messages to try showing what I was saying was true. I included those in the motions, the text messages. And they're just latching on to Steve Taylor when it was warned and Steve Taylor was witnessed. And that's all I have to say.
Hon. Bennett: Okay. So what the court's going to do is I'm going to take the Rule 11 motion under advisement, and then I'll issue a written order. One of the things we do need to talk about, though, in developing that a little bit more, though, is there's two parts to any Rule 11 analysis. First, it's showing there's a violation of Rule 11b. And I think we've just talked about that, that there is whether there is adequate investigation, et cetera. Next is what do we do about it? And so there is a whole series of factors the Tenth Circuit considers when deciding whether to impose a Rule 11 sanction. And in the briefing, I know, Mr. Hardin, you focus quite heavily on the fact that a Rule 11 sanction should be imposed. But help me understand that. in the context of the factors that I have to consider, what that sanction should be and why.
0:26:48
Hardin: Thank you, Your Honor. It's a tough question I grappled with, and I think that's why you don't see it in the briefing as to what the exact remedy is. I think the briefing asks for appropriate sanctions because it's such a tough question at this point. I think that at a minimum, attorney's fees relating to Steve Taylor and the protective order issue need to be awarded because we've incurred great costs and expense. But I don't think that that unrings the bell. I think that in fact, the prejudice is much more extensive because now we're back in Utah where we probably shouldn't be. Mr. Moon has a declaration in the record that he resides in Florida.
0:27:24
Hardin: We successfully moved it to Florida. We're back in Utah. I think that the whole case has really been on a bad trajectory as a result of this misconduct. I'm sorry about that, Your Honor. I think that the case is really on a bad track because of that. I think that really sanctions should be terminating the case at this point, because I think that in conjunction with some other stuff that we're going to talk about in just a minute, I think that it's clear that there's no way for this case to proceed because he has no witnesses. There's nowhere for this case to go. This case is on an incredibly bad track, and I think that the right thing to do is to terminate the case because the judicial system has been so badly misused. Thank you.
0:27:59
Hon. Bennett: Mr. Greer, thoughts on that?
Greer: Okay, so I have written evidence that was saying that Joshua Moon was living overseas. If he was living in Florida... He needs to provide some sort of address. I have been trying to put law enforcement to track this individual down because he has been stopping me for eight years.
0:28:35
Greer: Part of the problem why I can't do anything is I don't know where he lives. I can't do anything.
Greer: And as for this case not being in Utah, no. Defendants have directed their conduct towards me when I was living in Utah. And so that favorized through damages.
Greer: I have not misused the legal system at all. I admit I'm crocheting. I've messed up lots of stuff. But there's nothing that hasn't made the case unwinnable. I have photographs. of Joshua posting my copyright online. It's not just my copyright. He does it to everyone. There's something seriously wrong with this person, and the court needs to do something and stop this conduct. That's why I filed it, because a simple, sir, can please listen alone was not stopping this. I had a personal legal action.
0:29:46
Hon. Bennett: Well, Mr. Greer, I understand why, from your point of view, you're pursuing legal action. The thing is, though, is that we're pursuing legal action. We have to do it according to the law. And so that's what we're trying to determine here.
Hon. Bennett: When you make representations to the court, they have to be Correct. I mean, they have to have an arguable basis. They have to be based in some sort of a past research, a past investigation. It was reasonable under the circumstances. It doesn't have to be perfect. And there are certainly rooms for room for mistakes, but when we don't investigate appropriately and make representations recklessly without having a solid basis for it and people, we then go through the process, uh, in order to discover whether those allegations or those statements are true, and people spend time and money on evaluating those, and it turns out they weren't true to begin with. Therein lies the problem. And that's what I'm going to have to address in this Rule 11 issue, is whether that's what's happened here or not. So I'm going to take it under advisement.
0:30:59
Hon. Bennett: We'll look at the... at both prongs in the Rule 11 inquiry to determine whether Rule 11b was violated, and if so, what the appropriate sanctions are. And I'll issue an order as soon as that is ready to go. Let's now turn to the third category of things we're here to decide today, and that is the motion to stay. This is ECF number 245, which is to stay discovery on the amended complaint until everyone has served, is basically the one-liner there for the motion. No response was filed to this motion to stay that Mr. Hardin has filed. So my intention today is to grant the motion to stay, but instead of granting the motion to stay in discovery until everybody is served, my intention is to grant it until the court has a chance to review and decide the motion to dismiss that was filed a few weeks ago. Because I think it'll be more productive at that point to basically stay that. I know that was one of the alternative grounds for relief in the motion to stay was given there was a motion to dismiss now pending. Your thoughts on that, Mr. Hardin?
0:32:12
Hardin: Obviously, you're correct. That was one of our alternative grounds. I think our position for a stay is that that obviously should be granted. I think our broader position is neither of these two people, Rustard and Mosef Jarteli, have been disclosed under Rule 26. If you go back to ECF 185-1, that is Mr. Greer's disclosures in this case, neither of these two individuals has been disclosed as having any discoverable information. And so to our mind, any efforts to send discovery related to them, which is what Mr. Greer has decided to do in the last few days, or to us related to them, is really misplaced because they've never been disclosed as having any discoverable information. Again, in light of the stipulation at ECF 201, I don't think there's anywhere for discovery to go that is not out of proportion to the needs of the case, but I'll take what I can get today. A stay until the motion to dismiss is adjudicated is, of course, something that we've asked for in the alternative. If the court wants to broaden that, we would appreciate it, but we're not dissatisfied, Your Honor. Thank you.
0:32:59
Hon. Bennett: Mr. Greer, any thoughts on the motion to stay?
Greer: Your Honor, the reason I didn't respond to that is I don't oppose that. However, it's untrue to say that they don't have any discoverable information, because obviously they do. Because one of them violent, one of them directly infringed my copyright. The other one was, I think it was Russ card was conspiring to infringe. And so I was only trying to find out how to serve these people. I'm having a really hard time trying to find email addresses. And so if you do stay Discovery, I'll probably just file a subpoena to find out how to serve them because I don't know how else to serve them.
0:34:25
Hardin: Your Honor, if I could interject, a moment ago, Mr. Greer said that he was overzealous in disclosing people. Anybody that he'd ever talked to, he disclosed. He disclosed out the yin-yang, and that's why he erroneously disclosed an individual who had been deceased. Now he says... These two individuals obviously have discoverable information, but I never disclosed them. If you go back to his disclosures, these folks have never been disclosed. I think that that is a problem. We have an individual here in court that says obviously they have discoverable information, except that he's never disclosed them in his initial disclosures that we have already litigated and already had attorney's fees awarded for. Your Honor, I think that this is wildly inappropriate that he is confessing in open court to a Rule 26 violation. Thank you.
0:35:09
Hon. Bennett: Well, let's take a step back, Mr. Hardin, because in my recollection, I've never read anything that would suggest that you can't amend a complaint to add parties that weren't previously in a Rule 26a disclosure. Would you agree with that?
Hardin: I agree with that. I'm not saying that he can't add his parties. He obviously has amended and added parties. But I think that my broader point is he was required under Rule 26A and he has never amended. He was required to state who has discoverable information in this case. And he never identified these two people. There's nothing new that has come out. There's no new facts related to these people since his initial disclosures, which were themselves quite late, as you may recall from the litigation. so he's never disclosed that these people have any discoverable information and suddenly he says i need information related to these people now now he couches that and he says i agree it's because i need to serve an amended complaint on them but i don't think that that holds water because they have never been disclosed as as possessing any discoverable information nor by the way has joshua moon he never said joshua moon has any discoverable information And now he sends a discovery request, and he says, I want Joshua Moon, who has no discoverable information, to tell me about Rush Tard and Mosef Jarteli, neither of whom have any discoverable information. I think that is, of course, out of proportion to the needs of the case. I think that it shows that there's a Rule 26 violation. And I think that him saying he's doing it for purposes of service is really no answer at all when you consider the underlying failure to disclose. I think he's boxed himself into this situation by saying that they have no information. And as is pointed out in our motion to dismiss, which I recognize is not before the court today, any copyright statute of limitations against those individuals would have expired at least two or three years ago. So what it seems to me like we're doing is coming in late, amending a complaint, and suddenly trying to change our narrative about who has discoverable information. I think that's wildly inappropriate. I think that's why discovery should be stayed. But of course, if the court stays it until the motion to dismiss is adjudicated, that is relief in itself and we can revisit the issue later. Thank you.
0:37:03
Hon. Bennett: So Mr. Hardin, I think we need to just for purposes of going forward, and this doesn't have anything to do with the motion, it's now pending before the court because there isn't a renewed motion for 26A violations here. What we do have, but I think when you need to address this broader point that you keep making on this issue, let's look at Rule 26E.
0:37:35
Hon. Bennett: Some of these disclosures aren't made because you already know about them. And Rule 26E does not require disclosures to be made in a 26A disclosure where it's already known in discovery to the other side. So the fact that Joshua Moon has discoverable information and it's not in Mr. Greer's initial disclosures is of no moment because he's the named defendant himself. And he's I mean, that's it's obvious, given your disclosures, I'm sure, about who has relevant information. So the fact that they don't appear in Mr. Greer's is not some further evidence of malfeasance here. Rule 2060 does not require this kind of hyper technical fly specking of initial disclosures in terms of to turn it into a sanction. Am I missing something here? You're on mute there, sir.
0:38:12
Hardin: Sorry about that. I think at the moment, Your Honor, you're not missing anything because this is only a motion to stay discovery. I think that you will likely see a renewed motion based on things that were stated orally in court today, and we can address it at that point. I think that there's problems here, but we don't need to address them in the context of the motions today.
Hon. Bennett: Fair enough. All right. So Mr. Greer does not seem to be opposed to a motion at the motion to stay. So the court's going to go ahead and grant that motion to stay until the motions to dismiss are decided here. Let's now talk about the next motion for Mr. Greer. This is ECF 251 relating to a stay, but it's basically, it's asking under Rule 62 of the Federal Rules of Civil Procedure for a bonded stay. Rule 62 provides that at any time after judgment is entered, a party may obtain a stay by providing a bond or other security. And this is while something is appealed. Once again, the term judgment is referring to a final judgment. That is, when the entire case is decided and the case goes up on appeal. So the bond that we're talking about in a Rule 62B bond is dealing with the appeal of the entire case, not an interlocutory discovery sanction order. And so really, Rule 62B does not apply to this situation at all. But because this is an interlocutory order, which Mr. Greer points out in his filing, certainly correct, he can ask Judge Barlow to stay the $1,000 payment if he'd like. But again, I can't do that. I can't stay a district court judge's order.
0:40:16
Hon. Bennett: That's not something that's given to me since Judge Barlow has already decided that matter. So I can't rule on ECF number 251 because it's not something that I can rule on. And to the extent it's done under Rule 62B, it's improper because Rule 62B doesn't apply to this situation. So I would deny it. under Rule 62B because it's not applicable, but you do have the right to ask Judge Barlow to stay, whatever you think needs to be stayed, but it has to go to Judge Barlow under his inherent authority instead of under Rule 62B. Does that make sense, Mr. Greer?
0:41:03
Greer: Yes, Your Honor. I understand.
Hon. Bennett: Okay. Let's now turn to the inform a pauperous determination motions. This is ECF number 253 and ECF number 258. It seems to me, and correct me if I'm wrong, Mr. Hardin, but ECF 258, which is asking for a rescreening of the amended complaint, is somewhat of an alternative motion because if Mr. Greer is no longer capable of proceeding in forma pauperis, if he's able to pay his filing fee, then it seems to me that there would be any, and if you were to do so, there'd be no magistrate judge review at all and simply proceed like any other case would. And so it seems to me that ECF 258 really is only applicable if the court finds that IFP status and that's informal pauper status is still applicable. Would you agree on that?
0:41:42
Hardin: I agree entirely, your honor. Thank you. All right.
Hon. Bennett: So let's talk about, um, ECF number 253 then, uh, Mr. Greer represents, at least in some correspondence that was attached to the motion, that he is able, albeit unwilling and doesn't think he should have to pay the $1,000 sanction, but says that he is capable of doing it. And therefore, Mr. Hardin argues he can afford to pay filing fees here of the $402, I believe, that would be required at the time that this case was filed. Mr. Greer, help me understand, do you have the ability to pay the filing fee of $400?
0:42:25
Greer: Yes, I do. I can pay $400.
Greer: I just don't.
Greer: Again, as I said earlier, Mr. Hardin focuses on all these little things. And so I don't see how we'd be in an IFP status or not being in an IFP status has any relevance to copyright infringement. And so yes, to answer your question though, yeah, I can pay it.
0:43:09
Hon. Bennett: Okay, so two things, Mr. Greer. The IFP status, you're right. I mean, on its face has little to do with the copyright infringement itself. What it does have to do with is whether the court can hear the case, because Congress allows parties to proceed in forma pauperis or an IFP status, as you said, if they meet a certain threshold. And if they don't, then in order for the court to hear the case, the filing fee has to be paid. So it's beyond just associating it with relevance to the copyright infringement. So if you can afford to pay the filing fee, I'm going to order you to do so within 30 days or else I'll have to dismiss this case. Does that make sense?
0:43:47
Greer: Yes, Your Honor.
Hon. Bennett: Okay. So we'll go ahead and order the payment of fees because Mr. Greer is able to pay the filing fee. And by paying the filing fee, Mr. Greer, you're still able to maintain your support?
0:44:34
Hon. Bennett: Mr. Greer?
Greer: Oh, I'm sorry. Am I able to maintain my support?
Hon. Bennett: Yes.
Greer: I'm sorry. Can you please elaborate on that?
Hon. Bennett: Sure. Are you able to continue to pay for your rent and other life expenses despite having to pay the filing fee? Okay. All right. So we'll go ahead and order Mr. Greer to pay that filing fee within 30 days.
Hon. Bennett: Assuming that that's paid, then the ECF-258 will be moot. If it's not paid, the case will be dismissed. And in any event, ECF 258 would be moved in that regard as well. So what that leaves me with then, as we have two things going on, I've stayed discovery until the motion to dismiss is filed with one exception. That is Mr. Greer has 14 days to produce the documents that were previously ordered under ECF number 227. Mr. Hardin is going to file a status report letting me know of what's going on. within 21 days of today's hearing. So that discovery will go forward, but everything else is going to be stayed. I'll take the Rule 11 issue under advisement, and we'll issue a written decision as soon as we're able. We'll then await briefing on the motion to dismiss and consider that. Mr. Greer will then have 30 days from today to pay his filing fee, given that he is able to pay that filing fee and still maintain his daily support.
0:45:43
Hon. Bennett: DCF number 258 is moot either way, because if he pays, there's no magistrate judge review for IFP status. And if he doesn't, the case is to be dismissed under the IFP statute. And so in any event, ECF 258 would be stayed. ECF 245 is granted because until discovery or until the motion to dismiss is decided, ECF 251 is denied because at least it's denied without prejudice, at least as to Rule 62B relief is inapplicable here.
0:46:18
Hon. Bennett: And ECF 228 and 243 are going to remain, or at least ECF 228 is moved simply because of Judge Barlow's decision. ECF 243 is going to remain open awaiting the status report and potentially further proceedings based on what happens in terms of the production of that underlying case file on the denied restraining order. Mr. Hardin, anything else you need to take up in today's hearing?
0:46:55
Hardin: Nothing from me, Your Honor.
Hon. Bennett: Mr. Greer, anything further?
Greer: Your Honor, no. I appreciate your time.
Hon. Bennett: Thank you both. We'll be in recess.
Greer: Thank you.
