Congratulations to Cashman Law Firm, PLLC Clients – Attorneys Suffer Partial FRCP Rule 4(m) Dismissal in West Coast Productions v. Does 1-5,829 Case

[NOTE TO CLIENTS: Regarding the article below, if you are one of those who have been dismissed, I will be sending you a congratulations letter shortly, and I will tell you what the next steps are and what to expect from Dunlap Grubb & Weaver, PLLC.]

Congratulations to our clients who have been dismissed in the West Coast Productions v. Does 1-5829 case (1:11-cv-00057-CKK). I must say up front that NOT ALL DEFENDANTS HAVE BEEN DISMISSED.  In short, this dismissal is merely Judge Kollar-Kotelly enforcing her 5/11/2011 order where she ordered the plaintiff attorneys at Dunlap Grubb & Weaver, PLLC to either name and serve the defendants identified in their 4/15 statement by 5/16 or else she will dismiss them on her own.  Like Judge Shadur has done to dispose with John Steele’s CP Productions v. Does case in the U.S. District Court for the Northern District of Illinois a few months back, Judge Kollar-Kotelly is employing the same Federal Rules of Civil Procedure, Rule 4(m) to dismiss these defendants.

The case itself is still alive.

As for what to expect next, there are a series of dates to watch for.  Firstly, Judge Kollar-Kotelly has set a 6/1 deadline for the plaintiffs to give her a status update as to the various Does still pending in the case.  Nothing of relevance will happen here.  Then, by 6/20/2011, plaintiff attorneys must either name and serve the defendants identified in their 6/1 statement or else she will dismiss them on her own just as she has done here.  Since they have a few days to inform the court of what they have done, we will likely see an order similar to the one we see today on 6/28/2011.

I have attached the order below for your viewing.  To those of you who are not one of our Cashman Law Firm, PLLC clients, please use the attached document to view whether your accused IP address is one of the IP addresses which are now dismissed.  If so, I congratulate you on your dismissal.

[scribd id=56243751 key=key-3ptx5nvm9ksp595tiof mode=list]

Last, but not least, on an ethics note.  It has been brought to my attention that it is the practice of some of unscrupulous attorneys to send out what are known as “scare letters” demanding thousands of dollars, even after a dismissal.  While this is obviously not legal advice, if I received such a demand letter after being dismissed from a lawsuit such as this one, I would immediately contact Judge Kollar-Kotelly’s chambers at (202) 354-3340, and I would ask to fax in a copy of the letter I have received so that the court can be made aware should the plaintiff choose to send such a letter.

DC Judges Look Toward Case Dismissals

[UPDATE: I just found out that Judge Howell wrote almost identical opinions in the Voltage Pictures, LLC v. Does 1-5,000 (1:10-cv-00873-BAH) case and the Call Of The Wild Movie, LLC v. Does 1-331 (1:10-cv-00455-BAH) case to the opinion she wrote in the Maverick Entertainment Group v. Does 1-2,115 case, as described below.]

No doubt there will be many questions about the new order in the now Maverick Entertainment Group v. Does 1-2,115 case (1:10-cv-00569-BAH) — same case, new number of defendants from the recent dismissals. In addition, there is new news in the West Coast Productions v. Does 1-5,829 case (1:10-cv-00057-CKK).

First, the Maverick Entertainment Group news. Today, Judge Howell mentioned in her order that no jurisdiction nor any joinder arguments will be entertained by the court until defendants are named in the case. This twenty-six page ruling is essentially the same as her previous ruling, but this time she explicitly said that once defendants are named, they will have these defenses, and chances are they will be meritorious. To use her words, “[t]he putative defendants’ argument that they are improperly joined may be meritorious should they be named as defendants in this action.” (emphasis added, p.11)

*Surprisingly missing from her opinion was the elephant in the room — the settlement demand letters.* Judge Howell goes on to say, “…the putative defendants are not subject to the plaintiff’s subpoenas, and therefore do not face any ‘annoyance, embarrassment, oppression, or undue burden or expense’ from the plaintiff’s discovery request (as per Fed. R. Civ. P. 26(c)(1)).” I cannot possibly believe Judge Howell does not know that the plaintiff attorneys are demanding settlements from defendants.

They say justice is blind, but not stupid. Perhaps a few of us attorneys and our clients should send Judge Howell a sampling of the settlement letters our clients have received over the past few months.

Next topic, the West Coast Productions case. In short, yesterday, Judge Colleen Kollar-Kotelly ordered that certain defendants should be named and served with process by May 16th, 2011 or they should be dismissed. My guess is that that they will dismiss these defendants so that the case will remain alive.

In addition, the judge ordered that by June 1st, 2011, the plaintiffs need to give the court an accounting as to which of the defendants have been dismissed; which of the John Does have been disclosed by the various ISPs, and which they are still waiting for; and, which John Does cannot be named because the ISPs no longer have their contact information (e.g., likely because they purged the records after six months according to each ISP’s IP retention policy).

Last, but not least [and this is the juicy part], the judge ordered that by June 20th, the plaintiffs should either name their defendants or dismiss them. She is doing this by way of FRCP Rule 4(m), which is the way Judge Shadur dismissed the CP Productions, Inc v. Does case in the US District Court for the Northern District of Illinois just a few months ago.

In short, it seems as if the DC court is getting tired of these cases. Judge Beryl Howell (the former copyright lobbyist) is sticking to her guns and not dismissing these cases and she is turning a blind eye to what the plaintiff attorneys are doing. Yet, possibly due to political pressure, she has softened her approach and has conceded that as soon as plaintiffs start naming defendants, she may start severing and dismissing them for lack of jurisdiction and/or improper joinder. [She also gave one strong evidentiary hint as to the weaknesses of these cases, but we will deal with that in another article if and when it becomes relevant.] Similarly, in this same court, Judge Colleen Kollar-Kotelly seems to also be tiring of these cases. Instead of playing chicken with the plaintiffs in a “don’t name or else” stance as Judge Howell has done, Judge Kollar-Kotelly seems to be going the route of Illinois Judge Shadur in using FRCP Rule 4(m) to dispose of the case.

This is all good news. I am happy to share it with you.