M2 Software Inc v. M2 Communications, LLC

ORDER

Appellant M2 Software’s motion to recall the mandate and vacate the opinion in the above case is DENIED. M2 Software’s request that the recusal motion be assigned to a new panel is DENIED. Mada-cy Entertainment’s motion for sanctions against M2 Software is also DENIED.

specially concurring:

I concur in the court’s order.

To set the matter straight, at the time this case was assigned to this panel and at the time we decided it, I owned an equitable interest in Time Warner. Time Warner was not a party to the suit. Unbeknownst to me, Time Warner had an option (never exercised) to purchase up to 19.9% of Warner Music — also not a party to this suit. See David A. Vise, Time Warner Sells Music Unit to Bronfman for $2.6B, Wash. Post, Nov. 24, 2003. Warner Music owns Warner Special Products, not a party to the suit either. See Warner Special Products FAQ’s, available at http://www.warnerspecialpro-ducts.com/wsp/ wcm_help/helpfaq.jsp. As indicated on the allegedly infringing CDs at issue in this case, Warner Special Products manufactured, produced, and licensed music for a division of Madacy, a party to this suit.

In sum, then, I had no interest “however small” in the subject matter in controversy. Instead, I had an interest in a company (a) that had an option to purchase 19.9% of a company (b) that owned a company (c) that manufactured, produced, and licensed music for a corporate division of a party to this suit. Such an indirect interest does not…

specially concurring:

I concur in the court’s order denying the motion to recall the mandate and the denial of the motion for sanctions. Because the mandate is not recalled, I believe we have no jurisdiction to address the challenge to Judge Pregerson’s participation in this appeal.

M2 Software, Inc. moves the court for an order recalling the mandate and vacating the opinion. Appellant’s counsel asserts that Judge Pregerson owns stock in Time Warner, Inc. and that such ownership required his recusal from participation in the decision of the case pursuant to 28 U.S.C. § 455 .

Our authority to recall a mandate is to be “exercised only in extraordinary circumstances” and the “sparing use of the power demonstrates that it is one of last resort, to be held in reserve against grave, unforeseen contingencies.” Calderon v. Thompson, 523 U.S. 538, 550 , 118 S.Ct. 1489 , 140 L.Ed.2d 728 (1998). When a motion to recall a mandate is based on allegations of fraud on the court or allegations of misconduct affecting the integrity of the judicial process, the harm must be “gross” and enforcement of the judgment “manifestly unconscionable.” Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S.…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

M2 SOFTWARE INC., a Delaware  corporation, No. 03-56602 Plaintiff-Appellant, D.C. No. v. CV-02-01588-AHM M2 COMMUNICATIONS, L.L.C., a  Central District limited liability company; JEFF of California, MOSELEY, an individual; GAYLORD Los Angeles ENTERTAINMENT INC., a corporation, ORDER Defendants-Appellees.  Filed August 21, 2006

Before: Harry Pregerson, William C. Canby, Jr., and Robert R. Beezer, Circuit Judges.

Order; Concurrence by Judge Pregerson; Concurrence by Judge Beezer

ORDER

Appellant M2 Software’s motion to recall the mandate and vacate the opinion in the above case is DENIED. M2 Soft- ware’s request that the recusal motion be assigned to a new panel is DENIED. M2 Communications’ request for sanctions against M2 Software is also DENIED.

PREGERSON, Circuit Judge, specially concurring:

I concur in the court’s order.

10237 10238 M2 SOFTWARE INC. v. M2 COMMUNICATIONS To set the matter straight, at the time this case was assigned to this panel and at the…