Telesaurus Vpc v. Randy Power

FILED
NOT FOR PUBLICATION OCT 03 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TELESAURUS VPC, LLC, a Delaware No. 12-16399
Limited Liability Company, currently
known as Verde Systems, LLC, D.C. No. 2:07-cv-01311-NVW
Plaintiff - Appellant,
MEMORANDUM*
v.
RANDY POWER, an individual;
RADIOLINK CORPORATION,
Defendants - Appellees.
TELESAURUS VPC, LLC, a Delaware No. 12-16984
Limited Liability Company, currently
known as Verde Systems, LLC, D.C. No. 2:07-cv-01311-NVW
Plaintiff - Appellant,
v.
RANDY POWER, an individual;
RADIOLINK CORPORATION,
Defendants - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted September 11, 2014
San Francisco, California
Before: WALLACE, SCHROEDER, and W. FLETCHER, Circuit Judges.
Plaintiff-Appellant Telesaurus VPC appeals from the district court’s orders
granting summary judgment to the defendants and imposing sanctions under
Federal Rule of Civil Procedure 11. We affirm.
This appeal is the latest chapter of long-running litigation between
Telesaurus and RadioLink over the use of certain radio frequencies. In an earlier
appeal, we affirmed the district court’s dismissal of all of Telesaurus’ claims, but
remanded to the district court to permit Telesaurus an opportunity to amend the
complaint to state a claim under 47 U.S.C. § 206 against a common carrier.
Telesaurus VPC, LLC v. Power, 623 F.3d 998 (9th Cir. 2010).
On remand, Telesaurus amended its complaint to assert, using only the
conclusory language of the statute, that RadioLink was a common carrier within
the applicable definition. The district court then granted RadioLink’s motion for
summary judgment, concluding that, on the record before it, there was no basis for
any finding that RadioLink was a common carrier.
2
Telesaurus’ principal argument throughout the litigation to support common
carrier status has been that RadioLink was using frequencies presumptively
reserved for common carriers. This court has previously rejected that argument.
Telesaurus, 623 F.3d at 1005. The record contains no support for Telesaurus’
continuing contention that RadioLink service was made available to the public.
The district court imposed sanctions on Telesaurus under Rule 11, in the
amount of $107,797.50 in fees and $5,346.02 in costs. The record supports the
district court’s conclusion that Telesaurus, rather than its counsel, was responsible
for the multiplication of baseless proceedings in the litigation. There was no
material violation of the safe harbor provisions of Rule 11, and the record contains
no basis for disturbing the district court’s calculation of the amount of the fees.
There was no abuse of discretion.
AFFIRMED.
3