2 Filed
3
4 APR 1 9 1999
RICHARD W. WIEKING
CLERK. U.S. DISTRICT cOURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
NO. C-95-20091 RMW
RELIGIOUS TECHNOLOGY CENTER, a
California non-profit corporation; and BRIDGE ORDER RE BIFURCATION
PUBLICATIONS, INC., a California non-profit
corporation,
Plaintiffs,
v.
DENNIS ERLICH, an individual,
Defendant.
Plaintiffs and defendant filed briefs addressing the
issue of biflircation on September 30, 1997 Defendant filed a
supplemental brief on biflircation on January 14, 1999. Plaintiffs
filed a response t(~ defendant's supplemental brief on January 26,
1999.1 On February 8, 1999, plaintiff moved to dismiss defendant's
counterclaim for declaratory.judgment, and the court deferred
dis'position of the present motion pending disposition of the motion
to dismiss.2 The court has considered the parties' briefs and
[footnote]
The court notes plaintiffs' argument that defendant's
supplemental brief was untimely but has considered the supplemental
brief as it is not a "motion" that was subject to the agreement
concerning filing of motions reached at the December 18, 1998 case
management conference. The parties had previously filed papers
pertaining to the biftircation issue, and the court stated at the CMC
that biflircation would be addressed at the January 28, 1999 hearing.
2 The court has granted the motion to dismiss the counterclaim for
declaratory judgment in a separate order.
********************
heard the argument of counsel. Plaintiffs' claims and defendants
counterclaims are bifrircated afl(l shall be tried separately pursuant
to Fed. R. Civ. P.42(b). Plaintiffs claims shall be tried first
The court, in furtherance of convenience or to avoid
prejudice, or when separate trials will b~ conducive to expedition and
economy, may order a separate trial of any claim or counterclaim Fe~i
R. Civ P. 42(b). The court has been presented with no evidence that
defendant would be unfairly prejudiced by separate trials. The court
finds that there is not a significant overlap of facts, witnesses or
evidence between plaintiffs' copyright claims and defendant's
counterclaims pertaining to the search and seizure. See Xerox Cori,. v.
Nashua Corp., 57 F.R.D. 25, 26 (S.D.N.Y. 1972). Separate trials would
be conducive to expedition and economy, as plaintiffs have dismissed
their claim for statutory damages, with the result that plaintiffs'
claims will not be determined by ajury. As the court stated in Rosen v.
Dick, 83 F.R.D. 540, 544 (S.D.N.Y. 1979):
The jury would be wasting its time sitting and listening to weeks of
incomprehensible testimony unnecessary to the discharge of its task.
This is the rare case where two trials will be more satisfactory than
one, as far as efficient judicial administration is concerned. A bench
trial always moves more expeditiously than ajury trial. The overall
time for two trials will be less than a single trial with ajury
present.
Separate trials will, flirthermore, likely enhance juror comprehension
of the issues by excluding th(' presentation of irrelevant evidence.
See Barr Labs. Inc. v. Allot Labs, 978 F.2d 98, 115 (3rd; Cii 1992).
DATED: ___________
RONALD M. WHYTE
United States District Judge
Copy of order mailed on APRIL 19 1999 to:
Thomas R. Hogan
Law Otfices of Thomas R. Hogan
Ten Mmaden Blvd. Ste. 535
San Jose, CA 95113
Helena K. Kobrin
Moxon & Kobrin
6255 Sunset Blvd., Suite 2000
Los Angeles, CA 90028
Samuel D. Rosen
William M. Hart
Michael T. Mervis
Paul, Hastings, Janofsky & Walker LLP
399 Park Avenue, Thirty-First Floor
New York, NY 10022-4697
Eric M. Lieberman
Rabinowitz, Bousin, Standard, Krinsky & Lieberman, P.C.
740 Broadway - Fifth Floor
New York, NY 10003
Attorneys for plaintiffs RELIGIOUS TECHNOLOGY CENTER, a California non-profit
corporation, and BRIDGE PUBLICATIONS, INC., a California non-profit corporation
Harold J. McElhinny
Rachel Krevans
Morrison & Foerster
425 Market Street
San Francisco, CA 94105-2482
Jana G. Gold
Morrison & Foerster
755 Page Mill Road
Palo Mto, CA 94304-0792
Attorneys for defendant DENNIS ERLICH