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.

23 thoughts on “DC Judges Look Toward Case Dismissals”

    • I live on the court’s websites. 🙂 The filings for each of the cases are public. We obviously pay a fee for each page we view, but I still watch every case because we have clients in these cases.

  1. As long as judges keep allowing these mass subpoenas, I don’t think that these copyright trolls care about what happens once they start naming people. The risk they run though is exposing their real motivations (the settlement mill) so blatantly that even former lobbyist Judges will have to do something or risk looking bad.

    • Well, if they were to start naming people, then that leaves them wide open to people being able to get the courts to order Steele and DG&W to reveal their business practices and their methodology for collecting data for scrutiny.

      So far, they have viciously opposed any inquiry as to the workings of their company(especially Steele) because they’ve never let themselves get into a position where they’ve been *forced* to(like, say, if a judge ordered it).

      When was the last time that you’ve seen a post by John Steele on a public forum that does anything besides talk completely over the subject and claim “those thieves are going to get what’s coming to them!” as opposed to provide actual talking points for discussion? It would seem to me that he would be more successful in getting people to settle if he were to make a decent argument on a public forum -much like Mr. Cashman does with regard to defendants’ rights- rather than bluster and threaten with a post or two in a thread, and then never be heard from again?

      • But they did start naming people in several cases. They also started filling in the defedents local states. Discovery is going on now I think so they should be asking for that info, some are asking for a Jurry trail but the trail wont be till 2012 some examples: CO 11:11-cv-00346 and MN 0:11cv139 also two were named already in DC 1_10-cv-0455

      • They named what percentage of the total? Of course they are going to name a few people, they need to in order to scare more people into settling. 4-8 people out of the thousands shouldn’t scare you. A couple in Minnesota a a few in DC (to “prove” they are going to take everybody to court…right) shouldn’t frighten you into sending these trolls thousands of dollars IMO.

      • So far that has only been for one of the DG&W suits in D.C., however. As Mr. Cashman has stated in a previous blog entry, there doesn’t yet look to be any evidence that there’s a new wave of defendant naming going on, so much as attempts to secure a few dog and pony show trials to hope the defendants cave, and use those to scare other defendants into settlements in future mass suits with wild hyperbolic claims about how they will still pursue you into your home state. If a few individual cases is cause for serious concern on your part at this point, you’d pretty much be playing right into their hands.

        I would be more concerned when, rather than one person per state, you start to see hundreds and thousands of does coming out of that suit and suddenly showing up as individual suits all over every state in the US. Given that DG&W has, at this point, abandoned all pretense of ‘test the water’ suits against only a few hundred people at a time and is now full on filing against thousands(even tens of thousands at times!), you would best be paying more attention for the sudden appearance of two thousand or more individual lawsuits appearing within an extremely short span.

    • Correction there, two suits, “Achte/Neunte Boll Kino Beteiligungs GMBH & Co KG” as well, which has maybe three or four individuals(two of which are on behalf of DG&W in Illinois using our good friend John Steele as a local counsel). I meant to correct my post for that before I posted.

      @anon – more or less, the entire point of the operation is to keep overhead as low as possible so as much of the money as possible goes straight into their own pockets. They still, however, have to hire local counsel in every state that they aren’t licensed to practice in. To hire firms against hundreds or thousands of individuals would no doubt be a profit-killer, to say the least. A few show trials, however, would be great for business because it could be used to more effectively scare future does into settling.

    • It’s just a matter of time until the friend or relative of some politician, judge or lawyer gets caught up in one of these (or the judge/lawyer himself). Then watch the fireworks.

    • I would also think that at some point this turns into a matter of mathematics.

      Now that they have filed “The Expendables” case against tens of thousands of people, and still have all the other cases in the works PLUS the threats to go after defendants who were dismissed without prejudice in their home states. There has to be no feasible way to do more than sue a small handful of named people before the other cases “time out” in terms of statutes of limitations.

      The more suits they bring the more obvious the real strategy here becomes IMO.

  2. I am surprised no one has filled a motion for sanctions against the US Copyright Group (USCG) law firm. Some one should include a copy of the extortion like letters so the judge can see them, then request a section limiting USCG to only contact defendants IF and ONLY IF they are actually found to be in the DC jurisdiction and also requiring them to drop any John Does with in 24hrs once they are found to be out side of the DC Court area. This would put an end to there for Proffit business model. If you look at some of the cases where they had to provide status reports, they only listed by name those who did not settle yet, using this data, they have already made about $900,000 on the 3 combined cases of 1:1–cv-0455, 453, 569, and 873

  3. If you are on the hook in one of these cases, you file a motion to the DC court under the name John Doe with the IP address involved petitioning the court for your ISP not to release your name and then file a motion to dismiss for being out of jurisdiction. Then these blood sucking vermin have to come to your state to sue you and if they are successful and you have a house that is under water and other debts, you stop paying all your bills, then go bankrupt and the most opportune time and wipe it all clean at one time. Copyright infringement is not considered a injury tort so you will be able to dismiss the lawsuit in your Chapter 7. That is my plan if I ever get a letter from my ISP. Then i will be free a clear to retire in Thailand which is my dream.

  4. Robert…thanks for your consistent updates and sound opinions on these cases.

    I hope that this Judge Kollar-Kotelly quickly understands what this USCG is putting people through…if people intentionally downloaded movies, I understand. But it sure seems like there are a lot of folks being caught up unintentionally.

    Thanks again…

  5. The consensus, then, is to let ISP release one’s information? I don’t see a way out of this at all other than subscribe to the demands of the plaintiff. I am stuck between rock and a hard place.

    thanks for your time.

  6. Mr houstonlawy3r, do you have any updates on status of the OpenMind case? Judge stayed discovery pending a hearing from EEF, which occurred weeks ago now… (Apr 11?) Surely something came out of that?

  7. Is looks like ALL other motions to dismiss or quash have been denied time after time. WHAT IF WE TRY SOMETHING NEW? File a compromise motion to change the scope of the original Subpena? The comprises is the Defendant does not want the Name or Address released. The plaintiff needs MAC Address, and City to determine if they want to name them in the case. So the motion would be to LIMIT information to just the computer MAC Address (or serial number of the network card on the PC) AND the City. EVERYONE would be happy and USCG could not do there extortion anymore. If the plaintiff then wants to NAME the Joe Doe in the DC court , then the name and street address would be released. Better yet the Subpena results would only be sent to the Clerk and he would remove the name and address and forward it to the Plaintiff. Anyone want to file this motion for all the related USCG cases ?

  8. Looks like one of the First Cases Filed in the DC court 1:10-cv-0455 Call of the Wild, that later had a John Doe actually named and then filled in that persons local State court in Colorado 1:11-cv-00346 was just Dismissed by the local Colorado Plaintiff, I am not sure how to read the text could be the Plaintiff just gave up or the Defended settled out of court.


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