Case 4:13-cv-00494-Y Document 24 Filed 11/25/13

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS Ft. Worth Division ERGUN CANER, Plaintiff, v. JONATHAN AUTRY, et al., Defendants. * * * * * * * * * * * * * * * * *

Civil Action No. 4:13-cv-00494 (Y)

DEFENDANT JASON SMATHERS MOTION TO STAY CASE PENDING RESOLUTION OF DEFENDANTS MOTION TO SEVER FOR IMPROPER JOINDER Contemoraneous with this filing, Defendants Jonathan Autry (Autry) and Jason Smathers (Smathers) moved to sever the case into two separate casesone for each Defendantbecause the joinder of the two Defendants in the same action was improper. (Defs. Mot. to Sever for Improper Joinder, Dkt. #23 (filed Nov. 25, 2013).) Smathers respectfully moves the Court to stay this case until it has considered and ruled on Defendants Motion to Sever. Smathers has good cause to request this relief. Many arguments he intends to raise in his defense do not pertain to Autry, and the reverse is true as well. Defendants primary reason for seeking severance in the first place is to promote judicial economy and avoid unnecessary confusion by allowing each party, who have only the most tenuous relationship outside of this litigation, to address only those allegations against himself and to make the best legal arguments for his case, many of which would be inapplicable to his co-Defendant. For instance, Autry intends to request that the case be transferred to the Western District of Pennsylvania, where he

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resides, while that venue would be equally inappropriateif not more sofor claims against Smathers. Smathers, for his part, intends to make an argument based on personal jurisdiction that does not apply to Autry, since Smathers committed the alleged acts of infringement when Plaintiff resided in Virginia and has no ties to Texas. Most telling, though, is the fact that Smathers intends to argue that he was authorized by the United States Marine Corps to publish these videosa claim that Autry cannot make. With all of the differences in the respective parties arguments and legal positions, the benefit of severance is clear. However, if the Defendants must continue to file pleadings and motions while the Court considers the Motion to Sever, then the most obvious benefit of severance would be rendered effectively moot. If the Court did ultimately sever the case, each party would be required to adjust his position accordingly and likely required to refile largely duplicative motions and pleadings, burdening both them and the Court officials who had to process and review them. Furthermore, the videos at issue in this case are not currently posted anywhere on the Internet, so a stay of the case would not prejudice any of Plaintiffs legally cognizable interests. Therefore, the most logical course of action is to stay all arguments except the Motion to Sever until after that Motion has been decided. As an alternative, Smathers requests that the Court stay all of his deadlines pending resolution of the Motion to Sever, while Autrys deadlines remain unaffected. Autry consents to this alternative proposal, while opposing a full stay of the case. There is precedent both in the Fifth Circuit and other courts for such an arrangement, most often in case in which some counts were arbitrable and others were not. See, e.g., Klay v. Pacificare Health Sys. Inc., 389 F.3d 1191, 1204 (11th Cir. 2004) (in cases involving litigants advancing both arbitrable and nonarbitrable claims . . . courts have discretion to stay non-arbitrable claims.) (citations omitted); 2

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Harvey v. Joyce, 199 F.3d 790, 795-96 (5th Cir. 2000) (reversing district courts denial of stay for defendants not in arbitration); Larios v. Perdue, 306 F. Supp. 2d 1190, 1196 (N.D. Ga. 2003) (staying resolution of some claims but not others due to extrinsic contemporaneous proceedings). 1 See generally Air Line Pilots Assn v. Miller, 523 U.S. 866, 879 n.6 (1998) ([T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936)). Plaintiff opposes this Motion. As stated above, Autry opposes a full stay of the case, but does not object to a limited stay of Counts 3 and 4. Autry does not believe that the Motion to Sever requires this Court to delay consideration of any of his other motions, but believes that this Court can consider all motions simultaneously. A proposed Order consistent with the relief sought also accompanies this Motion. Date: November 25, 2013 Respectfully submitted, /s/ Kelly B. McClanahan Kelly B. McClanahan, Esq. N.D. Tex. Bar #984704DC National Security Counselors 1200 South Courthouse Road Suite 124 Arlington, VA 22204 301-728-5908 240-681-2189 fax
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Following the Larios case, the argument could also be made that this case should be stayed pending the Copyright Offices determinations regarding Plaintiffs applications for copyright registration, raising yet another reason to stay the case. 3

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Kel@NationalSecurityLaw.org Counsel for Defendant Jason Smathers