United States District Court
for the Central District of California

Ellison v. Robertson et al.

Harlan Ellison, an individual, plaintiff

  v.  

Stephen Robertson, an individual; America Online, Inc., a corporation; RemarQ Communities, Inc., a corporation; Critical Path, Inc., a corporation; and Does 1 Through 10, defendants.

No. 00-4321 FMC (RCx)

Docket Entries 133 (12 October 2001), 134 (23 October 2001)

Order to Show Cause Why Sanctions Should Not Be Imposed
and
Discharge of Order to Show Cause

The Court has read the Motion for Partial Summary Judgment filed on behalf of defendant, America Online. At page 6 of the Motion, reference is made to this Court's Order of January 12,2001, denying defendants' Motion to Dismiss. In that Order, the Court made the following observation:

From the allegations of Plaintiff's Complaint, it appears to the Court that America Online qualifies for the Transitory Digital Network Communications exemption set out in 17 U.S.C. 512(a) by meeting the initial five criteria. There are, however, further requirements...

In its Motion, defendant writes: "This Court has already expressly held that, '[f]rom the allegations of Plaintiffs Complaint, America Online qualifies for the Transitory Digital Network communications exemption set out in 17 U.S.C. 512(a) by meeting the initial five criteria."'

Not only does counsel characterize an observation as an express holding, but she purports to quote from the Court's Order, and omits (without even elipses [sic] to indicate she is doing so) the very language which qualifies the Court's opinion.

Such a misrepresentation of the Court's prior Order is both disturbing and surprising to the Court. Counsel for defendant is ordered to appear before the Court on Monday, October 22, 2001, at 10:00 a.m. and show cause why monetary sanctions should not be imposed.

DATED this 11th day of October 2001.

Florence-Marie Cooper, Judge

United States District Court

Proceedings: Hearing on OSC re Sanctions

Counsel present and hearing held. Court discharges OSC and imposes no sanctions.

[October 23, 2001]

Florence-Marie Cooper, Judge

United States District Court

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