507 F.Supp. 1128 (D.Nev. 1980), Civ. LV 79-1, Wood v. Santa Barbara Chamber of Commerce, Inc.

Docket Nº:Civ. LV 79-1
Citation:507 F.Supp. 1128
Party Name:Wood v. Santa Barbara Chamber of Commerce, Inc.
Case Date:December 15, 1980
Court:United States District Courts, 9th Circuit, District of Nevada

Page 1128

507 F.Supp. 1128 (D.Nev. 1980)

210 U.S.P.Q. 930

Michael R. WOOD, individually, and dba National Photo Services, Plaintiff,

v.

SANTA BARBARA CHAMBER OF COMMERCE, INC. et al., Defendants.

Civ. No. LV 79-1 RDF.

United States District Court, D. Nevada.

Dec. 15, 1980

Page 1129

[Copyrighted Material Omitted]

Page 1130

[Copyrighted Material Omitted]

Page 1131

Michael R. Wood, in pro. per.

Lionel, Sawyer & Collins by Grant Sawyer and Dennis L. Kennedy, Las Vegas, Nev., for Adams & Son, Inc.

Woodburn, Wedge, Blakey, Folsom & Jeppson by Casey W. Vlautin, Reno, Nev., for Donrey, Inc. d/b/a Las Vegas Review-Journal and Time, Inc. (Sports Illustrated-Western Edition).

Morrison & Foerster by Linda L. McCall, San Francisco, Cal., for Amphlett Printing Co.

Office of Gen. Counsel, Mobil Oil Corp. by Paul T. Gough, Los Angeles, Cal., for Mobil Oil Corp. and Ed Fulham.

Mariscal, Weeks, McIntyre & Friedlander, P.A. by Rudolph Mariscal and William L. Novotny, Phoenix, Ariz., for Phoenix Magazine.

Owen, Wickersham & Erickson by Melville Owen and Thomas M. Freiburger, San Francisco, Cal., for Lane Publishing Co. (Sunset Magazine).

Gust, Rosenfield, Divelbess & Henderson by James F. Henderson, Phoenix, Ariz., and Goodman, Oshins, Brown & Singer by Mark Segal, Las Vegas, Nev., for Phoenix Newspapers, Inc. (The Arizona Republic and The Phoenix Gazette).

Flint & McKay by Philip M. Battaglia, Stephen G. Contopulos and Frank Gooch, III, Los Angeles, Cal., for Hearst Corp. and The Advance-Star/Burlingame by Peninsula Newspaper, Inc., et al.

Spears, Lubersky, Campbell & Bledsoe by George L. Kirklin and Barrie J. Herbold, Portland, Or., for The Oregonian Publishing Co.

Dickerson, Miles & Pico by George M. Dickerson, Las Vegas, Nev., for Santa Barbara Chamber of Commerce, Inc., et al.

Caldecott, Peck, Phillips & Stewart by W. Michael Celestre, Oakland, Cal., for Oakland Tribune, Inc. and Eller Outdoor Advertising Co. of California, Inc.

Denton & Denton by Mark R. Denton, Las Vegas, Nev., for Western Banker Publishing, Inc.

J. L. O'Loughlin and B. F. Steubing by Bradley F. Steubing, Los Angeles, Cal., for Gulf Oil Corp. and Al A. Gioia.

McKay & Byrne by Michael A. Byrne, Los Angeles, Cal., for George Rusich d/b/a Triple "R" Press.

Angeline Burke, in pro. per.

Harold A. Donegan, Jr., Scottsdale, Ariz., for Insurance News, Inc.

Hunt & Hunt by John L. Grandsaert, San Francisco, Cal., for Brown Newspaper Publishing Co., Inc., sued herein as defendant Richmond Independent.

Elaine F. Fitz, Union Oil Co. of California, Los Angeles, Cal., for Fred Hartley, Jerry Luboviski and Union Oil Co. of California.

D. Joseph Burton, David G. Yetter, Los Angeles, Cal., for Texaco, Inc. and J. C. Kiersted.

Dickerson, Miles & Pico, Las Vegas, Nev. and Christie, Parker & Hale by C. Russell Hale and LeRoy T. Rahn, Pasadena, Cal., for The Times Mirror Co. et al.

Vargas, Bartlett & Dixon by Robert L. Gifford, Las Vegas, Nev. and McCutcheon, Black, Verleger & Shea by Philip K. Verleger, Sharon F. Rubalcava and James F. Vernon, Los Angeles, Cal., for Western Oil and Gas Assn. and Harry Morrison.

Page 1132

Johnson & Pilkington by George W. Johnson, Las Vegas, Nev., for Westways Magazine by Automobile Club of Southern California.

Breen, Young, Whitehead, Terzich & Belding, Chartered, by Jerry Carr Whitehead, Reno, Nev., for Salem Oregon Statesman et al.

Morton R. Galane, P.C. by Lynda S. Mabry, Las Vegas, Nev., for The Instructor Magazine et al.

Law Offices of Paul C. Parraguirre by Lorin D. Parraguirre, Las Vegas, Nev., for Motorland by California State Automobile Assn.

Gibson, Dunn & Crutcher by Theodore B. Olson and Rex S. Heinke, Los Angeles, Cal., for Los Angeles Magazine.

Arkin & Weissman by Andrew N. Weissman, Culver City, Cal., for Brentwood Publishing Corp.

Sally Ganong Pope, New York City, for Ziff-Davis Publishing Co.

Perry & Clay by Jack G. Perry, Las Vegas, Nev., for The Conde' Nast Publications, Inc.

Carl E. Eiberger, Eiberger, Stacy & Smith, Denver, Colo., for Denver Post, Inc.

OPINION

ROGER D. FOLEY, District Judge.

HISTORY OF THE CASE

On April 28, 1969, plaintiff, a California resident, delivered certain copyrighted photographs to defendant Chace Company Advertising, Inc., a California corporation. Those photographs were to be used for advertising purposes in connection with a "tourist emergency program" sponsored by the Santa Barbara Chamber of Commerce and various oil companies following the oil spill disaster of 1969. After a dispute developed between plaintiff and Chace, plaintiff rescinded his authorization for Chace to use the photographs. Plaintiff subsequently compelled Chace to return the photographs by legal action in state court.

Thereafter, on May 25, 1972, plaintiff filed a complaint against Chace Company Advertising, Inc., Thomas Chace and the Better Business Bureau of Santa Barbara alleging various violations of the copyright laws and antitrust laws of the United States. That action was brought in the United States District Court for the Central District of California. It was entitled Michael R. Wood v. Chace Company Advertising, Inc., et al., Civil Action 72-1179 RJK. During the course of discovery in that action, and after the defendants obtained several protective orders prohibiting plaintiff from filing harassing and repetitive interrogatories, Judge Kelleher ordered that Willard W. McEwen, United States Magistrate, be appointed as a Special Master to supervise discovery in Santa Barbara, the residence of all parties involved. During the course of the discovery supervised by Magistrate McEwen, plaintiff continued his misconduct with respect to discovery.

After consideration of the Special Master's report, Judge Kelleher, after an extended order to show cause hearing, entered a judgment of dismissal with prejudice based upon his finding that plaintiff had failed to comply with the Federal Rules of Civil Procedure, local rules and various court orders relating to discovery. Plaintiff appealed that dismissal to the Ninth Circuit, but failed to observe the Rules of Appellate Procedure. On April 21, 1975, the Court of Appeals dismissed his appeal for lack of prosecution pursuant to Rule 12(c), FRApp.

Plaintiff then filed various motions and petitions with the Court of Appeals seeking a rehearing. All petitions and motions were denied on July 9, 1975.

After that denial, plaintiff sought certiorari to the Supreme Court and made an application for stay of mandate before the late William O. Douglas, Circuit Justice for the Ninth Judicial Circuit. The petition for a stay was denied and on November 3, 1975, the Supreme Court denied certiorari.

On August 29, 1977, plaintiff filed a new complaint in the United States District Court for the Central District of California.

Page 1133

That action sought to set aside the previous dismissal on the grounds of fraud upon the plaintiff and fraud upon the Court. It was entitled Michael R. Wood v. Willard W. McEwen, et al., Civil Action 77-1762-FW. By now the number of defendants increased to 16.

The substance of that second federal action was that the original defendants and their attorneys and insurance companies had conspired to hinder and delay plaintiff in his discovery process and had further conspired to have Magistrate McEwen appointed Special Master to supervise discovery without disclosing to the Court that McEwen was prejudiced. The alleged ground of prejudice was that McEwen was an officer of the Santa Barbara Chamber of Commerce. However, that entity had not been a party to the original federal action.

All the defendants in the second action filed motions to dismiss on the grounds that plaintiff was attempting a collateral attack on a final judgment based upon alleged intrinsic fraud. On December 22, 1977, Judge Whelan rendered a decision granting those motions subject to the Court filing a final judgment of dismissal.

However, before the Court was able to file its final judgment, plaintiff requested leave to file a second amended complaint which is almost identical to the complaint in this present action. Leave was denied to file that amended complaint, as well as to file a third amended complaint. Plaintiff then filed a motion for leave to file a fourth amended complaint.

Further, on November 11, 1978, plaintiff sought a writ of mandate in the Ninth Circuit Court of Appeals requesting that the Court of Appeals order Judge Whelan to allow plaintiff to file his proposed fourth amended complaint and to transfer the entire action to this court, the District of Nevada. Plaintiff's grounds for these requests were that Judge Whelan and all the other judges of the Central District of California were prejudiced against him and that he could receive a fair hearing only in some other district.

On February 22, 1979, after a hearing, Judge Whelan denied plaintiff's motion to disqualify him and all other Central District judges, denied plaintiff's motion to transfer the action to Nevada, denied plaintiff's leave to file a fourth amended complaint, and dismissed the action without leave to further amend.

On March 1, 1979, plaintiff made an emergency motion in the Ninth Circuit Court of Appeals requesting that the Court stay Judge Whelan's orders. On March 13, 1979, the Ninth Circuit denied plaintiff's writ of mandate and emergency motion and informed him that his rights lay in appeal. Plaintiff is now pursuing that appeal before the Ninth Circuit.

THIS ACTION

This case is an attempt to import dubious California claims into Nevada. Plaintiff filed this action on January 2, 1979, against some two hundred defendants. The complaint contains 18 claims. Plaintiff has demanded a jury. The gist of the complaint may be summarized as follows. First, plaintiff alleges that the defendants or their agents used certain of his copyrighted photographs without his permission. Second, he alleges that the...

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