Ross-Nash v. Almond, No. 2:2019cv00957 - Document 104 (D. Nev. 2023)
Court Description: ORDER Granting 103 Stipulation to Reopen Case, Amend Caption, and Stipulated Judgment. It is hereby ORDERED, ADJUDGED AND DECREED, that the above-captioned matter is REOPENED, in accordance with the Bankruptcy Court's Order Granting Stipulation to Lift the Automatic Stay Concerning United States District Court Litigation. It is further ORDERED, ADJUDGED AND DECREED, that the caption of this case shall be amended to include RYAN A. ANDERSEN, ESQ., in his capacity as Trustee of the Bankruptcy Estate of Sunni Almond, in the place and stead of Sunni Almond. See order for further details. Signed by Judge Andrew P. Gordon on 5/15/2023. (Copies have been distributed pursuant to the NEF - LOE)
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Ross-Nash v. Almond Doc. 104 Case 2:19-cv-00957-APG-NJK Document 104 Filed 05/15/23 Page 1 of 7 1 2 3 4 5 6 7 8 9 10 11 12 Philip A. Kantor, Esq. Nevada Bar #6701 Law Offices of Philip A. Kantor, P.C. 1781 Village Center Circle, Suite 120 Las Vegas, NV 89134 Telephone: (702) 255-1300 Facsimile: (702) 256-6331 Email: prsak@aya.yale.edu David B. Barney, Esq. Nevada Bar #14681 Sklar Williams PLLC 410 S. Rampart Blvd., Suite 350 Las Vegas, NV 89145 Telephone: (702) 360-6000 Facsimile: (702) 360-0000 Email: dbarney@sklar-law.com Attorneys for Plaintiff/Counter-defendant Kathryn Ross-Nash 13 UNITED STATES DISTRICT COURT 14 DISTRICT OF NEVADA 15 16 17 18 19 20 21 22 23 24 25 26 27 KATHRYN ROSS-NASH, an individual, ) ) Plaintiff, ) ) vs. ) ) RYAN A. ANDERSEN, as Trustee of the) Bankruptcy Estate of Sunni Almond, ) ) Defendant. ) ) ) RYAN A. ANDERSEN, as Trustee of the) Bankruptcy Estate of Sunni Almond, ) ) Counter-plaintiff, ) ) vs. ) ) KATHRYN ROSS-NASH, an individual, ) ) Counter-defendant. ) ) Case No. 2:19-cv-00957-APG-NJK STIPULATION AND ORDER TO REOPEN CASE, AMEND CAPTION, AND STIPULATED JUDGMENT 28 1 Dockets.Justia.com Case 2:19-cv-00957-APG-NJK Document 104 Filed 05/15/23 Page 2 of 7 1 Plaintiff/Counter-defendant Kathryn Ross-Nash (“Ross-Nash”), by and through her 2 attorneys, the Law Offices of Philip A. Kantor, P.C., and the law firm of Sklar Williams PLLC, 3 and Ryan A. Andersen, Esq., in his capacity as Trustee of the Bankruptcy Estate of Sunni Almond, 4 by and through his counsel of record, the law firms of Howard & Howard Attorneys PLLC, and 5 Gallian Welker & Associates, L.C., hereby submit this Stipulation and Order to Reopen Case, 6 Amend Caption, and Stipulated Judgment, and stipulate as follows: 7 I. 8 PROCEDURAL HISTORY 1. On June 5, 2019, Ross-Nash filed a Verified Complaint (ECF No. 1) to initiate this 9 case. Ross-Nash’s Verified Complaint stated a claim for direct copyright infringement against 10 Sunni Almond (“Almond”), relating to Almond’s alleged copying and selling of Ross-Nash’s 11 book, The Red Thread: The Integrated System and Variations of Pilates – The Mat (hereinafter, 12 “Red Thread”). ECF No. 1, at 1-5. 13 2. On June 27, 2019, Almond filed an Answer to Complaint and Counterclaim (ECF 14 No. 6), which stated claims against Ross-Nash for (i) defamation of character, and (ii) intentional 15 infliction of emotional distress. ECF No. 6, at 5-10. 16 17 18 19 20 3. On July 17, 2019, Ross-Nash filed an Answer to Almond’s Counterclaim. ECF 4. On October 4, 2019, the Court entered a Stipulation and Order to Allow Defendant No. 9. to File an Amended Answer and Counter-claim (ECF No. 18). 5. On October 18, 2019, Almond filed her First Amended Answer to Plaintiff’s 21 Complaint and Counterclaims (ECF No. 19), stating claims against Ross-Nash for (i) Defamation 22 per se, (ii) intentional interference with contractual relationships, (iii) intentional interference with 23 prospective economic advantage, and (iv) intentional infliction of emotional distress. ECF No. 19, 24 at 10-13. 25 6. After the Court granted her request for an extension of time to do so (ECF No. 23), 26 Ross-Nash filed her Answer to Almond’s First Amended Counterclaims on November 15, 2019 27 (ECF No. 24). 28 2 Case 2:19-cv-00957-APG-NJK Document 104 Filed 05/15/23 Page 3 of 7 1 2 7. On January 14, 2020, the Court entered an Order (ECF No. 33), allowing Ross- Nash to amend her Complaint by adding a claim for contributory copyright infringement. 3 8. On January 15, 2020, Ross-Nash filed and served her First Amended Complaint 4 (ECF No. 36), which alleged claims for (i) direct copyright infringement and (ii) contributory 5 copyright infringement against Almond, relating to Almond’s alleged direct and contributory 6 infringement of Red Thread. ECF No. 36, at 4-5. 7 9. On February 3, 2020, Almond filed her Answer to Plaintiff’s First Amended 8 Complaint and Counterclaims (ECF No. 37), which reasserted Almond’s claims for (i) Defamation 9 per se, (ii) intentional interference with contractual relationships, (iii) intentional interference with 10 prospective economic advantage, and (iv) intentional infliction of emotional distress against Ross- 11 Nash. ECF No. 37, at 13-16. Ross-Nash filed her Answer to those counterclaims on February 14, 12 2020 (ECF No. 38). 13 10. Also on February 14, 2020, Ross-Nash filed a Motion for Partial Summary 14 Judgment as to Liability (ECF No. 39; hereinafter, the “Summary Judgment Motion”), seeking 15 summary judgment on all of the claims in this case, except her claim for contributory copyright 16 infringement against Almond. ECF No. 39, at 2-3. 17 11. On March 13, 2020, after receiving an extension of time to do so, Almond filed her 18 Response to the Summary Judgment Motion (ECF No. 51). Ross-Nash filed her Reply to 19 Almond’s Response (ECF No. 53) on March 27, 2020. 20 12. On October 28, 2020, the Court entered an Order Granting in Part the Plaintiff’s 21 Motion for Summary Judgment (ECF No. 65), which granted Ross-Nash summary judgment as to 22 liability on her claim for direct copyright infringement against Almond. ECF No. 65, at 5. The 23 Court denied the remainder of the Summary Judgment Motion in a subsequent order. ECF No. 24 67. 25 13. On January 11, 2021, Ross-Nash filed a Motion for Statutory Damages associated 26 with her copyright claim that was decided on summary judgment (ECF No. 70), a Motion to Certify 27 Judgment on the same claim (ECF No. 71), and a Motion for Attorney Fees and Costs associated 28 with prosecuting her copyright claim (ECF No. 72). 3 Case 2:19-cv-00957-APG-NJK Document 104 Filed 05/15/23 Page 4 of 7 1 14. On January 25, 2021, Almond filed responses to Ross-Nash’s Motion for Statutory 2 Damages (ECF No. 78) and to certify a judgment on her copyright claim (ECF No. 79). After 3 receiving an extension of time to do so (ECF No. 77), Almond filed a Response to Ross-Nash’s 4 Motion for Attorney Fees and Costs (ECF No. 81), on January 27, 2021. 5 15. On February 1, 2021, Ross-Nash filed replies in support of her Motion for Statutory 6 Damages (ECF No. 82) and Motion to Certify Judgment (ECF No. 83). On February 3, 2021, she 7 filed a reply in support her Motion for Attorney Fees (ECF No. 86). 8 16. On August 3, 2021, the Court entered an Order Granting Motion for Statutory 9 Damages and Denying Motions to Certify Judgment and for Attorneys’ Fees (ECF No. 91). The 10 aforementioned order denied Ross-Nash’s motions to certify judgment and for attorney’s fees, 11 without prejudice, but granted Ross-Nash’s Motion for Statutory Damages and awarded her 12 statutory damages in the amount of $750 on her direct copyright infringement claim, per her 13 election. 14 17. On September 9, 2021, after the parties submitted a Proposed Joint Pretrial Order 15 (ECF No. 92), the Court entered a Joint Pretrial Order (ECF No. 93). On the same date, the Court 16 also set the trial of this matter to begin on a jury trial stack commencing March 28, 2022. 17 18. On February 25, 2022, Almond filed a Notice of Filing Bankruptcy (ECF No. 100; 18 hereinafter, the “Bankruptcy Notice”) in this case. The Bankruptcy Notice advised that Almond 19 had filed a Chapter 7 Bankruptcy case in the United States Bankruptcy Court for the District of 20 Nevada (the “Bankruptcy Court”), bearing Case No. 22-10654-abl (the “Bankruptcy Case”). 21 19. Also on or about February 25, 2022, the Bankruptcy Court appointed Ryan A. 22 Andersen, Esq., to serve as Trustee of Almond’s bankruptcy estate, in connection with the 23 Bankruptcy Case (hereinafter, the “Trustee”). 24 20. On March 2, 2022, the Court entered a Minute Order vacating the Master Trial 25 Scheduling Conference and the trial of this matter, based on Almond’s filing of the Bankruptcy 26 Notice. 27 28 21. On April 20, 2022, after the Trustee filed a motion for such relief, the Bankruptcy Court entered an Order Granting Ex Parte Application to Employ Holley Driggs and Gallian 4 Case 2:19-cv-00957-APG-NJK Document 104 Filed 05/15/23 Page 5 of 7 1 Welker & Beckstrom, L.C. as Special Counsel, which permitted the Trustee to employ Almond’s 2 former counsel in this matter, to continue representing the interests of Almond’s bankruptcy estate 3 in the later stages of this case. 4 22. On May 19, 2022, the Bankruptcy Court entered an Order Granting Stipulation to 5 Lift the Automatic Stay Concerning United States District Court Litigation, by which the 6 Bankruptcy Court ordered, among other things, “that the automatic stay in the above-mentioned 7 bankruptcy case is hereby lifted to permit continuation of proceedings in the United States District 8 Court Case No. 2:19-cv-00957-APG-NJK, including to allow the litigation of the amount of any 9 setoff claimed by Creditor.” 10 23. On May 23, 2022, the Bankruptcy Court entered an Order of Discharge, which 11 discharged Almond from the debts that were the subject of Bankruptcy Case, and resulted in the 12 Trustee being the sole person responsible and able to make decisions regarding Almond’s 13 bankruptcy estate, including, but not limited to, her claims and defenses in the instant lawsuit. 14 24. Between around June 2022 and December 2022, Ross-Nash and the Trustee 15 engaged in settlement discussions regarding a global resolution of the claims and issues between 16 them, in both the Bankruptcy Case and this case. 17 25. On or about November 1, 2022, previous counsel for Almond and current counsel 18 for the Trustee, Joanna M. Myers, Esq., ceased to be affiliated with the law firm of Holley Driggs, 19 located at 400 S. 4th St., Third Floor, Las Vegas, NV 89101, and became affiliated with the law 20 firm of Howard & Howard Attorneys PLLC, located at 3800 Howard Hughes Pkwy, #1000, Las 21 Vegas, NV 89169. 22 26. On or about March 2, 2023, Ross-Nash and the Trustee entered into a Mutual 23 Release and Settlement Agreement (the “Settlement Agreement”), that set forth the terms for their 24 global resolution of the issues between them, and included as a term of the parties’ agreement, the 25 filing of this Stipulation and Order to Reopen Case, Amend Caption, and Stipulated Judgment. 26 27 28 27. On April 25, 2023, the Bankruptcy Court issued an Order approving the Settlement Agreement and allowing the parties to move forward in connection with the same. 28. In accordance with the foregoing procedural history and the terms of the Settlement 5 Case 2:19-cv-00957-APG-NJK Document 104 Filed 05/15/23 Page 6 of 7 1 Agreement, the parties stipulate and respectfully request that the Court enter the following Orders 2 and Stipulated Judgment in this case. The parties acknowledge that the Orders and Judgment 3 stipulated to below are being made in accordance with the Settlement Agreement between the 4 parties, and are being made as a compromise and final settlement between the parties, and shall 5 not be construed as an admission of liability by any party or an admission that any party engaged 6 in any wrongful, tortious, or unlawful activities. 7 II. 8 9 10 11 STIPULATED JUDGMENT 29. It is hereby ORDERED, ADJUDGED AND DECREED, that the above-captioned matter is REOPENED, in accordance with the Bankruptcy Court’s Order Granting Stipulation to Lift the Automatic Stay Concerning United States District Court Litigation. 30. It is further ORDERED, ADJUDGED AND DECREED, that the caption of this 12 case shall be amended to include RYAN A. ANDERSEN, ESQ., in his capacity as Trustee of the 13 Bankruptcy Estate of Sunni Almond, in the place and stead of Sunni Almond. 14 31. It is further ORDERED, ADJUDGED AND DECREED, that the law firm of 15 Howard & Howard Attorneys PLLC is now counsel for the Trustee, in the place and stead of the 16 law firm Holley Driggs. All other counsel remains unchanged. 17 32. It is further ORDERED, ADJUDGED AND DECREED, that Judgment is entered 18 in favor of Ross-Nash on her claim for direct copyright infringement, consistent with the Court’s 19 prior Order Granting in Part the Plaintiff’s Motion for Summary Judgment (ECF No. 65). 20 However, due to the posture of the Bankruptcy Case and the Order of Discharge granting Almond 21 a discharge from all debts that were the subject of that matter, and pursuant to the Settlement 22 Agreement between the parties, no monetary damages may be awarded on Ross-Nash’s claim for 23 direct copyright infringement. 24 33. It is further ORDERED, ADJUDGED AND DECREED, that Judgment is entered 25 in favor of Ross-Nash on her claim for contributory copyright infringement. However, due to the 26 posture of the Bankruptcy Case and the Order of Discharge granting Almond a discharge from all 27 debts that were the subject of that matter, and pursuant to the Settlement Agreement between the 28 parties, no monetary damages are awarded on Ross-Nash’s claim for contributory copyright 6 Case 2:19-cv-00957-APG-NJK Document 104 Filed 05/15/23 Page 7 of 7 1 2 infringement. 34. It is further ORDERED, ADJUDGED AND DECREED, that the Trustee’s 3 counterclaims, including its (i) First Claim for Relief, for Defamation Per Se, (ii) Second Claim 4 for Relief, for Intentional Interference with Contractual Relationships, (iii) Third Claim for Relief, 5 for Intentional Interference with Prospective Economic Advantage, and (iv) Fourth Claim for 6 Relief, for Intentional Infliction of Emotional Distress, are hereby DISMISSED with prejudice. 7 8 9 10 11 35. It is further ORDERED, ADJUDGED AND DECREED, that the parties shall bear their own costs and attorneys’ fees in connection with this case. 36. Upon entry of this Stipulation and Order to Reopen Case, Amend Caption, and Stipulated Judgment by the Court, the Clerk of Court is instructed to close this case. IT IS SO STIPULATED. 12 SKLAR WILLIAMS PLLC HOWARD & HOWARD ATTORNEYS PLLC 13 /s/ David B. Barney_____________ David B. Barney, Esq. Nevada Bar No. 14681 410 S. Rampart Blvd., Suite 350 Las Vegas, NV 89145 Tel: (702) 360-6000 Fax: (702) 360-0000 /s/ Joanna M. Myers_____________ Joanna M. Myers, Esq. Nevada Bar No. 12048 3800 Howard Hughes Pkwy, #1000 Las Vegas, NV 89169 Tel: (702) 257-1483 Fax: (702) 567-1568 Philip A. Kantor, Esq. Nevada Bar No. 6701 Law Offices of Philip A. Kantor, P.C. 1781 Village Center Circle, Suite 120 Las Vegas, NV 89134 Tel: (702) 255-1300 Fax: (702) 256-6331 Attorneys for Plaintiff/Counter-defendant Kathryn Ross-Nash Nathan E. Lawrence, Esq. Nevada Bar No. 15060 Gallian Welker & Associates, L.C. 730 Las Vegas Blvd. S., Ste. 104 Las Vegas, Nevada 89101 (702) 892-3500 Attorney for Defendant/Counter-plaintiff Ryan A. Anderson 14 15 16 17 18 19 20 21 22 23 ORDER 24 IT IS SO ORDERED. 25 May 15, 2023 Dated: _________________ 26 27 _____________________________________ UNITED STATES DISTRICT JUDGE 28 7
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