Defendant’s Application for Order Scheduling Judgment Debtor Examination

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Randazza

Legal Group 7001 W Charleston Blvd

#1043 Las Vegas, NV 89117

(888) 667-1113

Marc J. Randazza (Admitted Pro Hac Vice) J. Malcolm DeVoy IV (Nevada Bar No. 11950) RANDAZZA LEGAL GROUP [email protected] [email protected] 7001 W. Charleston Boulevard, # 1043 Las Vegas, NV 89117 Telephone: 888-667-1113 Facsimile: 305-437-7662 www.Randazza.com Attorneys for Defendant, Wayne Hoehn

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA RIGHTHAVEN, LLC, a Nevada limited liability company, Plaintiff, vs. WAYNE HOEHN, an individual, Defendant.

Case No. 2:11-cv-00050

DEFENDANT’S APPLICATION FOR ORDER SCHEDULING JUDGMENT DEBTOR EXAMINATION

DEFENDANT’S APPLICATION FOR ORDER SCHEDULING JUDGMENT DEBTOR

EXAMINATION

Defendant Wayne Hoehn (“Hoehn”), through his attorneys, brings this motion seeking

this Court, in light of its writ of execution entered against Plaintiff Righthaven LLC

(“Righthaven”) (Doc. # 59) on November 1, 2011, to Order limited discovery as set forth below

pursuant to Rule 69 and Local Rule IB 1-9(k). In order to fully recover Righthaven’s assets,

Hoehn must first apprehend where they have gone, as Righthaven’s counsel has stated that

Righthaven is nearing bankruptcy (Doc. # 52-1). As such, Hoehn requests a copy of

Righthaven’s financial records, and a debtor’s examination of two Righthaven officers – Steven

Gibson, Righthaven’s Chief Executive Officer, and Raisha Y. Gibson - also known as “Drizzle”

Gibson - Righthaven’s Chief Administrative Officer, to ascertain the location of Righthaven’s

Case 2:11-cv-00050-PMP -RJJ Document 60 Filed 11/06/11 Page 1 of 6

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assets. Pursuant to Local Rule IB 1-9(k), this examination shall be conducted under the authority

of a Magistrate Judge.

On November 1, 2011, this Court entered a writ of execution to Hoehn, against

Righthaven, in the sum of $63,720.80. (Doc. # 59.) Hoehn has filed writs of execution with the

U.S. Marshals to begin seizing Righthaven’s financial assets. To date, Hoehn has not recovered

any portion of his judgment. To aid in his discovery and acquisition of assets, however, Hoehn

seeks to receive information from Righthaven and depose two of its officers in order to satisfy

his judgment. (DeVoy Decl. ¶¶ 3-8.) Federal Rule of Civil Procedure 69(a)(2) contemplates this

procedure and states as follows:

In aid of the judgment or execution, the judgment creditor […] may obtain discovery from any person — including the judgment debtor — as provided in these rules or by the procedure of the state where the court is located.

Steven Gibson, as the Chief Executive Officer of Righthaven, signatory of the company’s

Operating Agreement,1 and signer of the Strategic Alliance Agreement with Stephens Media

LLC, has knowledge of the company’s financial and other assets, and their whereabouts. (DeVoy

Decl. ¶¶ 3-4.) Similarly, Raisha Gibson is likely to know about Righthaven’s financial accounts

based on her position and responsibilities as Righthaven’s Chief Administrative Officer. (Exh. A;

DeVoy Decl. ¶¶ 5-9.) Raisha Gibson had, and likely still has, power to act on Righthaven’s

behalf as its Chief Administrative Officer, representing Righthaven in transactions with the U.S.

Patent and Trademark Office and very likely in many other business dealings. (Exh. B at 2)

Both Raisha and Steven Gibson will likely have direct knowledge of information regarding

suspected fraudulent transfers of funds from Righthaven to third parties, including themselves,

effected in order to evade payment of the lawful judgment rendered by this Honorable Court.

(DeVoy Decl. ¶¶ 13-14.)

Righthaven’s prior conduct before this district, and the conduct of its executive

individually in other matters, reveals a manifest need for any debtors exam to be refereed by a

1 See Righthaven v. DiBiase, Case No. 2:10-cv-01343 (Doc. # 51) (D. Nev. Apr. 17, 2011). (containing a redacted version of Righthaven’s operating agreement).


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magistrate judge. In Righthaven v. Democratic Underground, the defendants had considerable

difficulty obtaining discovery from Righthaven and its counsel. Case No. 2:10-cv-01356 (Doc.

96 ¶¶ 19-29) (D. Nev. Apr. 28, 2011) The experience of defense counsel in that case – trying to

get answers out of an unresponsive plaintiff – closely resembles the experience Hoehn had when

attempting to negotiate Righthaven’s fee liability in good faith. (Doc. # 32-2 ¶¶ 14-18), and the

difficulties incurred by counsel in Righthaven v. Leon et al., Case No. 2:10-cv-01672 (Doc. # 42-

2 ¶¶ 18-23) (D. Nev. May 3, 2011).

This conduct is not isolated to Righthaven, but appears endemic to the litigation strategy

of Steven Gibson, its CEO. In March of 2011, Gibson was held jointly and severally liable

within this District for sanctions in excess of $6,000, stemming from misconduct during a

deposition, including “numerous inappropriate objections,” which was not “substantially

justified.” Kabins Family LLC v. Chain Consortium, Inc., Case No. 2:09-cv-01125 (Doc. # 333

at 1-2) (D. Nev. Mar. 29, 2011). The court, in disbelief, characterized one of Gibson’s

explanations for his voluminous objections as “amazing.” Kabins Family LLC, (Doc. # 275 at

15:19-21) (D. Nev. Apr. 27, 2010) (addressing Mr. Gibson: “Amazing. Did that end up on the

record, my comment, amazing, ‘cause that’s my comment to that whole discussion. Why don’t

you be seated”). Ultimately, Judge Navarro admonished Mr. Gibson’s conduct, further ordering

that the magistrate judge would oversee further depositions of Mr. Gibson’s client. Kabins

Family LLC, (Doc. # 314 at 22-25) (D. Nev. July 28, 2010) (“From the beginning, it was clear

that Mr. Gibson was prepared to be combative”). It is no idle speculation that such conduct,

between Gibson and his wife (DeVoy Decl. ¶ 3), would be guaranteed in a wasteful private

deposition where sensitive financial information about the company for which they both worked

was at stake, culminating in a seizure of its assets.

These risks need not be taken where Local Rule IB 1-9(k) allows magistrate judge

participation. Having the Court’s immediate sanction powers available will compel candid,

immediate answers, rather than more dilatory conduct requiring further motion practice –

seeking sanctions for Righthaven’s misconduct during these depositions – to curtail. Conducting


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the examination before a magistrate will create a clear public record of Righthaven’s financial

condition for Hoehn to act upon in seizing assets through the U.S. Marshals.

Moreover, the media attention Righthaven’s litigation campaign has received makes the

Plaintiff’s precarious financial condition (see Doc. # 52-1) a matter of public interest, as the

technology and media communities have great interest in knowing what became of settlement

funds earned by the “Nation’s Pre-Eminent Copyright Enforcer.”2 Righthaven has established a

pattern of delaying not only discovery, but the payment of fees as well. (Docs. # 52, 57). Further

stalling is intolerable when Hoehn is entitled to begin collecting his judgment, and must

determine how to best focus his search.

Pursuant to Rule 27, the last known addresses of the debtor representatives to be

examined are as follows:

Steven A. Gibson c/o Dickinson Wright PLLC 7201 W. Lake Mead Boulevard, Suite 503 Las Vegas, NV 89128 Raisha “Drizzle” Y. Gibson 7278 Silver Charm Court Las Vegas, NV 891313

In addition to seeking examinations of the above-named representatives, Hoehn seeks the

production of all documents and information identifying, related to, and/or comprising the

following:

1. Any and all information and documentation identifying real property, vehicles,

bank accounts, bank deposits, company securities, intangible intellectual property

and all other assets that may be available for execution to satisfy this Court’s

judgment and writ of execution, including money owed to Judgment Debtor by

others, etc.

2 See Righthaven.com. 3 This address is the last known address of Ms. Gibson, as Righthaven does not appear to actively use its S. Pecos Road address any longer. Disclosure of this last known address is compelled by Rule 27.


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2. Any and all information and documentation identifying purchases, transfers of

funds, or other dissipation of assets from Righthaven to yourselves or any other

third parties commencing on or about April 15, 2011, when Righthaven’s SAA

was unsealed in the Democratic Underground case.

Hoehn requests the discovered specified above in order to satisfy his judgment as allowed

by Rule 69, and for no other purpose. In this case, magistrate participation in the debtor exam is

necessary and proper, and will promote judicial economy by obviating the need for any sanctions

motion arising from a deposition of Righthaven’s officers.

Dated November 6, 2011 Respectfully Submitted,

RANDAZZA LEGAL GROUP

Marc J. Randazza J. Malcolm DeVoy IV Attorneys for Defendant, Wayne Hoehn


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(888) 667-1113

CERTIFICATE OF SERVICE

Pursuant to Federal Rule of Civil Procedure 5(b), I hereby certify that I am a

representative of Randazza Legal Group and that on this 6th day of November, 2011, I caused

the document(s) entitled:

DEFENDANT’S APPLICATION FOR ORDER SCHEDULING JUDGMENT DEBTOR EXAMINATION

and all attachments to be served as follows:

[ ] Pursuant to Fed. R. Civ. P. 5(b)(2)(D), to be sent via facsimile as indicated; and/or

[ X ] by the Court’s CM/ECF system.

/s/ J. Malcolm DeVoy

J. Malcolm DeVoy


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Case No. 2:11-cv-00050

DECLARATION OF J. MALCOLM DEVOY IN SUPPORT OF DEFENDANT’S APPLICATION FOR ORDER SCHEDULING JUDGMENT DEBTOR EXAMINATION

DECLARATION OF J. MALCOLM DEVOY IN SUPPORT OF DEFENDANT’S

APPLICATION FOR ORDER SCHEDULING JUDGMENT DEBTOR EXAMINATION

I, J. Malcolm DeVoy, having personal knowledge of the matters set forth below, state as follows:

1. I am counsel of record for Wayne Hoehn in this matter, an attorney for Randazza

Legal Group and a duly licensed attorney in the state of Nevada, in good standing with its bar.

2. I have undertaken research and investigation of Righthaven’s assets in order to

satisfy Wayne Hoehn’s judgment and writ of execution in this case.

3. My research indicates that the Chief Executive Officer (“CEO”) of Righthaven

LLC (“Righthaven”) is married to Raisha Y. Gibson, also known as Drizzle Gibson,1

Righthaven’s Chief Administrative Officer.

1 In my observations, Ms. Gibson uses the alias “Drizzle.” No other aliases are known for her at this time.

Case 2:11-cv-00050-PMP -RJJ Document 60-1 Filed 11/06/11 Page 1 of 4

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4. As CEO of Righthaven, Mr. Gibson is likely to be aware of Righthaven’s

financial relationships with banks, individuals with whom Righthaven has settled, or by whom

Righthaven is otherwise owed money, the location of Righthaven’s financial assets, and/or

whom to contact for that information.

5. On March 29, 2011, I received an e-mail from Ms. Gibson related to a Righthaven

matter. A true and correct redacted version of this e-mail is attached hereto as Exhibit A.

6. Moreover, Ms. Gibson identified herself as the Chief Administrative Officer of

Righthaven in an attorney revocation/appointment order filed with the U.S. Patent and

Trademark Office on February 2, 2011.

7. This revocation/appointment order is a public document, and a true and correct

copy is attached hereto as Exhibit B.

8. As the Chief Administrative Officer, Ms. Gibson’s signature has appeared on at

least one of Righthaven’s checks, which I have personally seen, for the amount of $3,815.00 and

dated July 20, 2011.

9. As the Chief Administrative Officer, Ms. Gibson is likely to have more detailed

information about Righthaven’s assets, day-to-day function, and other information important for

the execution of the judgment in this case.

10. My research indicates that Righthaven employees are infrequently, if ever, at the

company’s 4475 S. Pecos Road address.

11. Background and research I performed leads me to believe that the best addresses

for contacting Mr. and Ms. Gibson are as follows:

Steven A. Gibson c/o Dickinson Wright PLLC 7201 W. Lake Mead Boulevard, Suite 503 Las Vegas, NV 89128

Raisha Y. Gibson (a/k/a Drizzle Gibson) 7278 Silver Charm Court Las Vegas, NV 89131


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12. Examination of both Righthaven officers is reasonably necessary to find all assets

that may be seized in satisfaction of Hoehn’s judgment and writ of execution.

13. As Mr. and Ms. Gibson are the sole remaining known officers of Righthaven, and

as such have knowledge of Righthaven’s financial transfers to third parties and other insiders,

including themselves.

14. As the Righthaven Operating Agreement indicates, though in redacted form, that

Mr. Gibson receives a salary from Righthaven2 – but the offices have been rarely used for a

significant period of time – these salary payments likely constitute fraudulent transfers to

frustrate judgment recovery by Hoehn and other prevailing defendants.

15. Based on the conduct of Righthaven in this litigation and related cases, and the

conduct of CEO Steven Gibson in other matters, particularly Kabins Family LLC v. Chain

Consortium, Inc., Case No. 2:09-cv-01125 (Doc. # 333 at 1-2) (D. Nev. Mar. 29, 2011), I believe

any examination undertaken outside the jurisdiction of a magistrate judge will be uneconomical,

a waste of Hoehn’s resources.

16. I further believe, based on the above-referenced conduct, that Righthaven’s

conduct would result in further wasting of judicial resources, as Hoehn would be forced to seek

sanctions against Righthaven for its abusive conduct, then re-depose the debtor’s representatives.

17. I believe that conducting a debtor’s examination in the presence of a magistrate

judge under Local Rule IB 1-9(k) will ultimately conserve judicial resources and assist Hoehn –

and the Court – in efficiently discerning the whereabouts of Righthaven’s assets, so they may be

seized in satisfaction of the judgment and writ of execution.

18. Based on Righthaven’s prior conduct in this litigation, I certify that the parties

will not be able to resolve this dispute without Court action, and have taken good faith efforts to

2 See Righthaven v. DiBiase, Case No. 2:10-cv-01343 (Doc. # 51) (D. Nev. Apr. 17, 2011) (containing a redacted copy of Righthaven’s operating agreement).


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resolve this dispute prior to it reaching this point. Further efforts to engage Righthaven will

waste time and be futile.

19. On November 4, I left a voice mail with Righthaven’s counsel seeking to discuss

Hoehn’s writ of execution and how the U.S. Marshals would enforce it.

20. On November 4, I also sent Mr. Mangano a letter regarding this motion, seeking

to enter a stipulation for a debtors examination before the magistrate judge without motion

practice.

21. I have regularly had e-mail exchanges and phone calls with Righthaven’s counsel

at late hours and outside of the normal business week, and determined based on prior filings and

correspondence from Righthaven’s counsel, that this correspondence would not be unfair, nor

prejudicial.

22. On November 5, I once again contacted Righthaven’s counsel, seeking to resolve

this issue informally, obviating the need for motion practice, but received no response.

I declare under penalty of perjury that the foregoing is true and correct to the best of my

knowledge.

Dated November 6, 2011

/s/ J. Malcolm DeVoy

J. Malcolm DeVoy


EXHIBIT A


From: Raisha Gibson <[email protected]>Subject: Timothy Daniel

Date: March 29, 2011 4:41:37 PM PDTTo: "J. Malcolm DeVoy Esq. ([email protected])" <[email protected]>Cc: Steve Gibson <[email protected]>, Steven Ganim <[email protected]>

4 Attachments, 1.2 MB

!"#$%&$'%!"()*+%,-%.)--"./0)-%10/2%/2"%#3)4"5$"6"$"-."7%8#//"$9%:;"#<"%60-7%.)$$"<:)-7"-."%6$)8%8"%#;)-=%10/2%#%.)$$"<:)-70-=%"-.;)<>$"'%?;"#<"%.)-/#./%8"%06%*)>%2#4"%#-*%@>"</0)-<'%%A2#-B%*)>'%C"</%$"=#$7<9%Raisha Y. ("Drizzle") GibsonChief Administrative Officer

%Conquistador Business Park9960 West Cheyenne Avenue, Suite 210Las Vegas, Nevada 89129Direct: (702) 541-6400Cell: (702) 308-7007Main: (702) 527-5900Fax: (702) 527-5909E-mail: [email protected]%

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March 29, 2011

Via E-mail & U.S. Mail J. Michael DeVoy, Esq. Randazza Legal Group 1027 South Rainbow Boulevard, Suite 306 Las Vegas, Nevada 89145

Re: Timothy Daniel Dear Mr. DeVoy:

In connection with the above-referenced matter, please find transmitted herewith a fully-executed original Settlement Agreement for your files.

If you have any questions regarding the foregoing, please do not hesitate to contact me.

Best regards, !"#$%$&'()!!**+, /s/ Raisha Y. (“Drizzle”) Gibson Chief Administrative Officer RYG/hs Enclosure cc: Mr. Steven A. Gibson Steven A. Ganim, Esq.


James Malcolm DeVoy IV







!

!

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1123,4.'(,!5.6.##.,)7.#%.8,'%&(.,9:3,;)',7.<)'8,#.7)*),=1:91,

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March 29, 2011

Via E-mail & U.S. Mail J. Michael DeVoy, Esq. Randazza Legal Group 1027 South Rainbow Boulevard, Suite 306 Las Vegas, Nevada 89145

Re: Timothy Daniel Dear Mr. DeVoy:

In connection with the above-referenced matter, please find transmitted herewith a fully-executed original Settlement Agreement for your files.

If you have any questions regarding the foregoing, please do not hesitate to contact me.

Best regards, !"#$%$&'()!!**+, /s/ Raisha Y. (“Drizzle”) Gibson Chief Administrative Officer RYG/hs Enclosure cc: Mr. Steven A. Gibson Steven A. Ganim, Esq.

Timothy Dan….pdf (1.1 MB)




EXHIBIT B


PTO Form 2196 (Rev 9/2005)OMB No. 0651-0056 (Exp 09/30/2011)

Revocation of Attorney/Domestic Representative and/orAppointment of Attorney/Domestic Representative

The table below presents the data as entered.

Input Field Entered

SERIAL NUMBER 77924076

LAW OFFICE ASSIGNED LAW OFFICE 103

MARK SECTION

MARK RIGHTHAVEN

ATTORNEY SECTION

ORIGINAL ADDRESS

Steven A. GibsonDickinson Wright PLLC1619-0011875 Eye Street, NW, Suite 1200Washington DC [email protected]

NEW ATTORNEY ADDRESS

STATEMENT TEXT

By submission of this request, the undersignedREVOKES the power of attorney currently of record,as listed above, and hereby APPOINTS the followingnew attorney.

NAME Anne E. Pieroni, Esq.

FIRM NAME Righthaven LLC

STREET 9960 West Cheyenne Avenue, Suite 210

CITY Las Vegas

STATE Nevada

COUNTRY United States

POSTAL/ZIP CODE 89129

PHONE (702) 527-5900

FAX (702) 527-5909


EMAIL [email protected]

ATTORNEY AUTHORIZED TOCOMMUNICATE VIA E-MAIL YES

NEW CORRESPONDENCE ADDRESS

NAME Anne E. Pieroni, Esq.

FIRM NAME Righthaven LLC

STREET 9960 West Cheyenne Avenue, Suite 210

CITY Las Vegas

STATE Nevada

COUNTRY United States

POSTAL/ZIP CODE 89129

PHONE (702) 527-5900

FAX (702) 527-5909

EMAIL [email protected]

AUTHORIZED TO COMMUNICATEVIA E-MAIL YES

SIGNATURE SECTION

SIGNATURE /Raisha Y. Gibson/

SIGNATORY NAME Raisha Y. Gibson

SIGNATORY DATE 02/02/2011

SIGNATORY POSITION Chief Administrative Officer

FILING INFORMATION SECTION

SUBMIT DATE Wed Feb 02 15:14:58 EST 2011

TEAS STAMP

USPTO/RAA-24.253.69.70-20110202151458674828-77924076-4808de988a9326d6a2978106ba6b74c5cef-N/A-N/A-20110202150421794295


PTO Form 2196 (Rev 9/2005)OMB No. 0651-0056 (Exp 09/30/2011)

Revocation of Attorney/Domestic Representative and/orAppointment of Attorney/Domestic Representative

To the Commissioner for Trademarks:MARK: RIGHTHAVENSERIAL NUMBER: 77924076

The original attorneySteven A. GibsonDickinson Wright PLLC1619-0011875 Eye Street, NW, Suite 1200Washington DC [email protected]

Original Correspondence Address :Steven A. GibsonDickinson Wright PLLC1875 Eye Street, NW, Suite 1200Washington DC [email protected]

By submission of this request, the undersigned REVOKES the power of attorney currently of record, aslisted above, and hereby APPOINTS the following new attorney.

Newly Appointed Attorney:Anne E. Pieroni, Esq.Righthaven LLC9960 West Cheyenne Avenue, Suite 210Las Vegas, Nevada 89129United States(702) 527-5900(702) [email protected]

The following is to be used as the correspondence address:Anne E. Pieroni, Esq.Righthaven LLC9960 West Cheyenne Avenue, Suite 210Las Vegas, Nevada 89129


United States

(702) 527-5900(702) [email protected]

Signature: /Raisha Y. Gibson/ Date: 02/02/2011Signatory's Name: Raisha Y. GibsonSignatory's Position: Chief Administrative Officer

Serial Number: 77924076Internet Transmission Date: Wed Feb 02 15:14:58 EST 2011TEAS Stamp: USPTO/RAA-24.253.69.70-20110202151458674828-77924076-4808de988a9326d6a2978106ba6b74c5cef-N/A-N/A-20110202150421794295


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Case No. 2:11-cv-00050

PROPOSED ORDER GRANTING DEFENDANT’S APPLICATION FOR ORDER SCHEDULING JUDGMENT DEBTOR EXAMINATION AND TO PRODUCE DOCUMENTS

PROPOSED ORDER GRANTING DEFENDANT’S APPLICATION FOR ORDER

SCHEDULING JUDGMENT DEBTOR EXAMINATION AND TO PRODUCE DOCUMENTS

Pursuant to the Application of Wayne Hoehn for issuance of this Court’s Order

Scheduling Judgment Debtor Examination before the magistrate judge under LR IB 1-9, and

production of documents, and good cause shown, it is hereby ORDERED that Steven A. Gibson

and Raisha “Drizzle” Y. Gibson shall personally appear before this Court on , 2011,

at .m., and provide testimony under oath concerning the location of Righthaven’s

assets. Both representatives of Righthaven shall be examined with regard to the extent and

location of Righthaven’s assets that may be available to Hoehn for the purpose of satisfying this

Court’s Judgment (Doc. # 44) and Writ of Execution (Doc. # 59).


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At least one (1) calendar week before the above-scheduled examination, Righthaven shall

produce the following documents to Hoehn through his counsel:

Any and all information and documentation identifying real property, vehicles, bank

accounts, bank deposits, company securities, intangible intellectual property and all other

assets that may be available for execution to satisfy this Court’s judgment and writ of

execution, including money owed to Judgment Debtor by others, and other information of

the like;

And

Any and all information and documentation identifying purchases, transfers of funds, or

other dissipation of assets from Righthaven to yourselves or any other third parties

commencing on or about April 15, 2011.

Should Righthaven fail or refuse to cause Steven Gibson and/or Raisha Gibson to appear

at the examination herein scheduled, or to produce documents referred to above, this Court may

adjudicate Righthaven guilty of civil contempt of its orders. The Court may issue warrants or

seizure orders to compel compliance with this Order. In the event that either deponent fails to

attend, this Court will issue writs of bodily attachment and instruct the U.S. Marshalls to use

reasonable force to compel their attendance.

IT IS SO ORDERED

U.S. DISTRICT COURT JUDGE

DATE:


Documents

Defendant’s Application for Order Scheduling Judgment Debtor Examination