MICHAEL
FOUNDATION, INC.,
a Foreign corporation,
Plaintiff and
Defendant-in-Counterclaim,
Case No. CIV-OO-885-W
Urantia FOUNDATION,
-AND-
Urantia FOUNDATION,
Counterclaimant and
Third
Party Plaintiff,
vs.
HARRY McMULLAN
III,
a citizen of Oklahoma,
Third Party Defendant,
and
MICHAEL FOUNDATION, INC.,
Foreign
corporation,
Defendant-in-Counterclaim.
This matter comes before the Court upon the motion of Urantia Foundation (“UF”) to stay pending appeal the amended judgment entered on August 14, 2001 in favor of Michael Foundation, Inc. ("Michael") and Harry McMullan, III ("McMullan"). Michael and McMullan have responded to the motion and upon due consideration, the Court makes its determination.
This action was tried before a jury from June 12, 2001 to June 19, 2001. By the time the case was submitted to the jury, the only issue for determination was the validity of the renewal by UF of the copyright to The Urantia Book as a composite work or as a commissioned work. On June 20, 2001, the jury found that The Urantia Book was not a composite book or a commissioned work and judgment was entered on June 21, 2001, in favor of Michael and McMullan. Thereafter, UF filed a motion for new trial and a motion for judgment notwithstanding the verdict. The Court denied UF's motions. UF also filed a motion to amend the judgment which the Court granted in part. An amended judgment was entered on August 14, 2001, holding that UF's renewal copyright is invalid and unenforceable. UF subsequently filed an appeal.
In the instant motion, UF requests the Court to stay the amended judgment pending resolution of its appeal. UF contends that this case presents serious legal issues as to which UF has a substantial case on the merits and a likelihood of success on appeal. UF specifically asserts that the evidence at trial established that The Urantia Book was both a commissioned work and a composite work. In addition, UF contends that the balance of equities favors a stay. UF asserts that it is likely to suffer irreparable injury during the appeal absent a stay. According to UF, Michael has resumed distribution of Jesus--A New Revelation. In addition, UF contends that other third parties have announced their intention to market competing versions of The Urantia Book and its translations. Such activities, UF argues, will endanger the reasons for UF’s over fifty-year existence and damage UF’s market for The Urantia Book. UF additionally asserts that irreparable injury may be presumed as it can show a likelihood of success on the merits. Furthermore, UF asserts that the stay would not substantially harm Michael or McMullan because such stay would only preserve the status quo that existed prior to entry of the amended judgment. Finally, UF contends that the public interest lies in preserving the status quo of copyright validity until the appeal is decided.
Michael and McMullan, in response, contend that stay is not warranted as UF has failed to meet its burden of establishing a likelihood of success on the merits. They assert that the jury's findings that The Urantia Book was neither a commissioned work nor a composite work was supported by overwhelming evidence. Michael and McMullan also contend that UF cannot show irreparable harm. They assert that UF's president admitted at trial that the sales of copies of The Urantia Book were not adversely impacted by the sales of Michael's Jesus--A New Revelation. They also assert that UF has offered no authority that “would-be publishers” would not be liable for damages for publishing The Urantia Book during the appeal if UF were to prevail on appeal. Michael and McMullan contend that regardless of whether a stay is entered, UF can threaten, and in fact, has already threaten “would-be publishers” or distributors with infringement suits in the event the amended judgment is overturned. Michael and McMullan also contend that they will suffer harm from a stay because Michael has resumed distribution of Jesus--A New Revelation and is in the process of establishing national distributor relationships. They contend that if a stay were entered, they would have to return to the distributors and acknowledge that it cannot distribute the book. Finally, Michael and McMullan contend that the stay would harm the public interest in that it would thwart the full and free exchange of ideas contained in The Urantia Book.
To obtain a stay pending appeal, the moving party must establish the following: (1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay is not granted; (3) the absence of harm to opposing parties it the stay is granted; and (4) the public interest favors a stay. McClendon v. Citv of Albuquerque, 79 F.3d 1014, 1020 (lOth Cir. 1996); Securities Investor Protection Corp. v. Blinder. Robinson & Co, 962 F.2d 960, 968 (lOth Cir. 1992) .If the moving party can meet the three harm factors for a stay pending appeal, it will be deemed to have satisfied the likelihood of success on appeal factor if it shows “‘questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues ripe for 1itigation and deserving of more deliberate investigation.’” McClendon, 79 F.3d at 1020 (citations omitted).
Upon review, the Court concludes that UF has not satisfied its burden for issuance of a stay. The Court finds that UF has failed to establish a likelihood of success on the merits. Moreover, the Court finds that it has failed to establish a substantial case on the merits. The significant issue identified by UF for appeal will require the appellate court to consider whether substantial evidence supported the jury's verdict. The Court concludes that substantial evidence was presented to the jury to support its findings that The Urantia Book was neither a commissioned work nor a composite work. In addition, the Court concludes that UF has failed to show irreparable injury absent a stay. UF has not shown that the sales of Michael's Jesus--A Revelation would adversely impact the sales of The Urantia Book. Additionally, UF has failed to offer any authority that “would-be publishers” would not be liable for damages for publishing The Urantia Book during the appeal should UF eventually prevail on the merits. UF has cited no authority that the Court's unstayed judgment would function as a “get-out-of-jail-free card” to "would-be publishers." The Court finds that UF has failed to show that it is entitled to a presumption of irreparable injury because UF has failed to show a likelihood of success on the merits. Furthermore, the Court finds that UF has failed to show an absence of harm to Michael and McMullan if a stay were granted. In regard to public interest, UF has not shown a likelihood of success on the merits, and consequently, public interest would not be served by upholding the rights of UF, as a copyright holder. Therefore, because UF has failed to make a showing for issuance of a stay pending appeal, the Court finds that UF’s motion should be denied.
Based upon the foregoing, Urantia Foundation's Motion to to Stay Judgment Pending Appeal (Docket Entry #242) is DENIED.
Entered this 20th day of November, 2001.
____________________________
LEE R. WEST
UNITED STATES DISTRICT JUDGE