Why filing a motion to quash in a Strike 3 Holdings LLC Miami-Dade Florida case might not be the correct approach.

strike-3-holdings-miami-dade-florida-lawsuit

Out-of-state defendants have received subpoena letters from their ISPs informing them that they have been sued by Strike 3 Holdings LLC in Miami-Dade County, Florida. It is my observation that these defendants are being misinformed by certain defense attorneys as to whether they should file a motion to quash to try to stop the ISP from sharing their information or they should immediately pay Strike 3 Holdings a settlement to prevent them from being sued for copyright infringement.

Settlement Factory Attorneys are not Disclosing their Past Outcomes.

The problem is that these defense attorneys are recommending that out-of-state defendants file a motion to quash. However, they ALREADY KNOW THE OUTCOME that once a motion to quash is filed, the Strike 3 Holdings LLC plaintiff attorney will send that defense attorney a letter threatening a $150,000 copyright infringement lawsuit in a FEDERAL COURT unless that accused defendant settles the claims against them for thousands of dollars.

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This would not be a problem if the accused defendant WAS INFORMED UP FRONT that a settlement would be solicited (threatened) if the defense attorney filed the motion to quash in the Miami-Dade Florida County court.

What is actually happening, however, is that defendants are not being informed of the letters being sent by Strike 3 Holdings, and the defense attorneys are FEIGNING IGNORANCE and PRETENDING NOT TO KNOW that this (a settlement and a threat to sue in the defendant’s home state) has been the result that has come from filing a motion to quash.

In other words, someone is lying to someone, and I suspect it is [again, the settlement factory] defense attorney who is lying to their potential clients to lure them into settling the claims against them by first “selling” them on the idea of filing a motion to quash with the Florida court.

[I could stop the article here, but let’s delve a bit deeper into this topic.]

Why Would a Miami-Dade Strike 3 Holdings LLC Defendant Settle Now?

WHY would someone accused as a potential defendant in [what is really a state-based Miami-Dade Florida court] Bill of Discovery case (again, NOT a copyright infringement case filed in a federal court) file a motion to quash as their [settlement factory] attorneys are luring them to do?

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If they did ABSOLUTELY NOTHING (and this is obviously not legal advice), the likelihood of them being named and served as a defendant in the Florida court would be logically ZERO.

WHY: The Strike 3 Holdings LLC Miami-Dade cases are *NOT* copyright infringement cases for $150,000, but rather, they are merely requests to disclose the identities of the accused infringers. If defendants did ABSOLUTELY NOTHING, in this Florida court they would not be facing a $150,000 copyright infringement lawsuit because copyright infringement lawsuits MUST be filed in a federal court, NOT a state court.

Two reasons why Miami-Dade Strike 3 defendants are settling now (before a lawsuit against them is filed).

So why would an accused Miami-Dade Strike 3 defendant settle? I’ll give this TWO answers:

#1: Defense attorneys are luring defendants in with false promises from a “motion to quash” defense.

ANSWER #1: The motion to quash vehicle is not providing defendants the outcome they are looking for (filing a motion to quash lures the defendant into communication with the plaintiff attorney and forces him/her to decide whether to settle the claims against him or defend against a copyright infringement lawsuit in federal court).

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I have written extensively about motions to quash (a motion telling the court that they do not have personal jurisdiction over an accused defendant [and thus the court cannot proceed against that particular defendant] because that defendant does not live in the state in which he/she is sued).

A motion to quash is “technically” the correct motion to file when the defendant is outside of Florida.

In the Miami-Dade Florida Strike 3 Holdings LLC cases, 99% of the defendants DO NOT LIVE IN FLORIDA (I actually do not know the actual percentage, but pretty much every defendant that has called me lives outside of Florida). Thus, the Miami-Dade Florida court has NO JURISDICTION over most of these accused defendants, and thus a motion to quash would “technically” be the proper vehicle to hide the defendant’s identity from Strike 3 Holdings LLC.

But JUST BECAUSE something (here, a “motion to quash” a subpoena) is the “right vehicle” to achieve a particular outcome (here, preventing the ISP from handing over the identity of the accused downloader) DOES NOT MEAN that by using that vehicle you will get the outcome you desire.

Strike 3 Holdings knows the ACTUAL STATE where the defendant LIVES (and threatens to sue them there, even with a motion to quash).

The problem is that in the process of filing the motion to quash, Strike 3 Holdings LLC “learns” the location of that defendant (they actually already know the location of the defendant through the geolocation of his/her IP address anyway), and the Strike 3 Holdings LLC attorney threatens the Florida attorney to either settle or withdraw the motion to quash OR ELSE they will file a copyright infringement lawsuit against their defendant in the US District Court (the federal court) in the state in which their client lives.

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Strike 3 Holdings LLC threatens the defense attorneys to withdraw their motions to quash or face a lawsuit against their clients in their home state.

Thus, the outcome of filing a motion to quash is that the Strike 3 Holdings LLC attorney threatens the defense attorney to settle now or else their defendant client will be sued in their home state’s federal court. *I have seen these letters* so I know first hand that this is happening.

The Miami-Dade Florida “Pure Bill of Discovery” cases are not copyright infringement lawsuits.

So if the end result of filing a motion to quash is that you will receive a threat from the opposing counsel, why file a motion to quash in the first place? [Again, it is not as if the plaintiff attorney will name and serve that defendant in their “Florida Bill of Discovery” case. There are practically no damages there and the Miami-Dade Florida court has no jurisdiction over most of the defendants. So what is accomplished by filing a motion to quash? In my opinion, ABSOLUTELY NOTHING.]

Settlement Factory Attorneys are marketing their settlement outcomes by feigning that a motion to quash should be their strategy instead of the settlement they know will result by filing the motion to quash.

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Unfortunately, there are Florida attorneys who have actively marketed motions to quash as the “silver-bullet” solution to these Miami-Dade Florida-based Strike 3 Holdings LLC cases. However, I do not think that this kind of marketing was the honest approach which is “in the best interest of the client,” a legal ethical attorneys need to hold by in every state… maybe not in Florida.

Eventually a defendant who files a motion to quash at the advice of their attorney will also pay that same attorney a second fee to negotiate a settlement to settle the claims against them.

What the defense attorneys neglect to tell their clients is that eventually the client will be forced to settle the claims against them and thus the client not only paid the Florida attorney hundreds or thousands for the motion to quash and the procedural hurdles involved in achieving the motion to quash, but they would also have to pay the attorney again to negotiate a settlement of the claims against their client to the tune of sometimes tens of thousands of dollars.

“Playing stupid” is not an honest approach when representing a Strike 3 Holdings LLC defendant.

Thus, I am kind of annoyed when I hear stories about the misinformation I have been hearing from Florida defense attorneys who have been deceiving their clients and then “playing stupid” when a settlement is eventually suggested [and it will be suggested].

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In sum, a Strike 3 Defendant who filed a motion to quash has probably been tricked into settling the claims against them.

So in sum, to answer the question “why would someone accused in a Miami-Dade Strike 3 Holdings LLC case settle?”

My first answer is that they were deceived by an attorney to file a motion to quash and now they are being forced to settle the claims against them… or risk a $150,000 copyright infringement lawsuit filed against them* in a federal court in their home state. Thus, to avoid being sued, they settle.

Why else would an accused defendant in a Miami-Dade Strike 3 Holdings LLC case settle?

#2: Unfortunately, Strike 3 often [but not always] accurately accuses the correct internet user who downloaded their copyrighted videos.

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ANSWER #2: Strike 3 Holdings LLC accurately identified the accused defendant as the one who downloaded their copyrighted titles, and to avoid a lawsuit filed in a federal court in their state, the defendant settles the claims against him out of court.

One of the unfortunate things in the Strike 3 Holdings LLC copyright infringement cases is that Strike 3 Holdings has gotten quite good at identifying the correct defendant.

Further, they are targeting defendants based on their demographic information where before the defendant is even targeted, they are identified [sometimes mistakenly] as someone who has deep pockets. Add together the “we got the right guy” and “he can pay us a lot of money,” they have the perfect defendant who will settle the claims against him.

Strike 3 Holdings LLC copyright infringement lawsuits generally require the plaintiff to obtain testimony “under oath” from the defendant whether he downloaded the videos or not.

I wish I had more to say here. There are a thousand ways to handle a copyright infringement lawsuit from the defense side of things, however, in pretty much most cases, the defendant must assume that the plaintiff attorney will put the him or her under oath (meaning, they will take his testimony) and ask whether he has downloaded, streamed, or viewed adult films using bittorrent.

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As soon as the defendant answers “yes,” they have just compromised their chances of winning the copyright infringement lawsuit.

Remember: The burden of proof in a civil copyright infringement lawsuit is “PREPONDERANCE OF THE EVIDENCE,” meaning “more likely than not,” or “51%.”

This is a much lower burden of proof than “CLEAR AND CONVINCING” or “BEYOND A REASONABLE DOUBT” as you would see in criminal cases.

Thus, knowing that the plaintiff attorney will take the testimony from the defendant if he fights back, most defendants would rather opt to settle the claims against them than expose themselves to a deposition where they might end up giving testimony which kills their defense.

So, because of these uncomfortable truths, the Miami-Dade Florida based Strike 3 Holdings LLC lawsuits continue in full force.

OBSERVATION: Strike 3 Holdings LLC is still filing more Miami-Dade Florida based “Pure Bill of Discovery” Lawsuits.

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Since I wrote the last article three weeks ago (and the one before than in October, 2019), I have observed that there were four more cases filed in the Miami-Dade Florida court (and within each of the four lawsuits is potentially a hundred or more defendants — I know this because the complaints implicate hundreds of defendants, each one accused of being “ONE UNKNOWN INFRINGER” having ONE IP ADDRESS).

Thus, for the cost of filing ONE federal court lawsuit, they are exposing the names of potentially a hundred or more defendants who will pay to settle the claims against them.

Current List of Strike 3 Holdings LLC Miami Dade Florida-based lawsuits.

Here is the current (updated) list of Strike 3 Holdings LLC Miami-Dade Florida lawsuits:

STRIKE 3 HOLDINGS, LLC v. UNKNOWN INFRINGERS LISTED ON EXHIBIT 1

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Local Case Numbers: 2019-027829-CC-05, 2019-027599-CC-05, 2019-026368-CC-05, 2019-026371-CC-05, 2019-025653-CC-05, 2019-025655-CC-05, 2019-025662-CC-05, 2019-024463-CC-05, 2019-024467-CC-05, 2019-024647-CC-05, 2020-001616-CC-05, 2020-001652-CC-05, 2019-032919-CC-05, 2019-032825-CC-05, 2019-032439-CC-05, 2019-032122-CC-05, 2019-031035-CC-05, 2019-030496-CC-05, 2019-030040-CC-05, 2019-028802-CC-05, 2019-028412-CC-05, and 2019-028410-CC-05.

State Case Numbers: 132019CC027829000005, 132019CC027599000005, 132019CC026368000005, 132019CC026371000005, 132019CC025653000005, 132019CC025655000005, 132019CC025662000005, 132019CC024463000005, 132019CC024467000005, 132019CC024647000005, 132020CC001616000005, 132020CC001652000005, 132019CC032919000005, 132019CC032825000005, 132019CC032439000005, 132019CC032122000005, 132019CC031035000005, 132019CC030496000005, 132019CC030040000005, 132019CC028802000005, 132019CC028412000005, and 132019CC028410000005.

*2/10/2020 UPDATE: Still, no Florida Miami-Dade judge has stopped these cases, and Strike 3 Holdings, LLC keeps filing. Here are additional cases that have been filed in the last three weeks:

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NEW Local Case Numbers: 2020-002968-CC-05, 2020-002021-CC-05, 2020-002024-CC-05, 2020-002019-CC-05.

NEW State Case Numbers: 132020CC002968000005, 132020CC002021000005, 132020CC002024000005, 132020CC002019000005.


[CONTACT AN ATTORNEY: If you have a question for an attorney about the Miami-Dade Florida-based Strike 3 Holdings, LLC cases and my experiences with them or what the defense attorneys are doing, you can e-mail us at info[at]cashmanlawfirm.com, you can set up a free and confidential phone consultation to speak to us about your Strike 3 Holdings, LLC case, or you can call us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].

CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

HOW IT HAPPENS – HOW PAUL BEIK HAS MALIBU MEDIA DEFENDANTS IN TEXAS FEDERAL COURTS NAMED AND SERVED.

malibu-media-anonymous-settlement

Paul Beik (Paul S. Beik of the Beik Law Firm PLLC) is a Texas-based plaintiff attorney who has “served” many defendants in Texas lawsuits for his Malibu Media LLC client (“served” as in someone knocking on a defendant’s door in a bittorrent copyright litigation lawsuit and handing the former John Doe Defendant a copy of the complaint; not “served” as in “thousands served” in a McDonald’s hamburger way). [Sorry for the play on words — that came out when editing this article.]

Paul Beik has been naming and serving Malibu Media LLC v. John Doe defendants since 3/28/2018 (or at least 3/28/18 was the first time I contacted him before having a client served; prior to this, his predecessors Andrew Kumar and Michael Lowenberg of the Lowenberg Law Firm PLLC filed Malibu lawsuits in TX since 10/27/2016), but unlike Beik’s cases, their John Doe defendants were not regularly named and served.

More generally, Malibu Media LLC has likely filed over ten thousand copyright infringement lawsuits against anonymous John Doe defendants since 2012 (I stopped counting in 2016, when Malibu temporarily stopped filing lawsuits, and even then, there were already 6,000+ cases filed across the US).

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Prior to Paul Beik taking over as Texas local counsel for Malibu Media LLC, while some Texas John Doe defendants were named and served here and there, most of them historically were never served. The reason for this is that Malibu Media LLC’s general counsel (currently represented by the Lomnitzer Law Firm in Florida) always let the local copyright attorneys (here, Paul Beik) decide how far into litigation they are willing to go — specifically whether they are willing to have the John Doe Defendants named and served.

How Malibu Media LLC lets their attorneys “grow” on the job.

[Again, the header is not to be taken out of context given the subject matter of the Malibu Media LLC adult film cases.]

Malibu Media LLC’s general counsel often hires lawyers in each state who know federal procedure [but who do not necessarily know any copyright law]. They often let that attorney “learn on the job” by following instructions, templates, and scripts I believe are provided to every new Malibu Media LLC local counsel. I have referred to these new plaintiff attorneys in the past as “fresh meat,” because the filings in every Malibu Media LLC case look exactly the same as the filings I have seen in thousands of Malibu cases over the years filed in federal courts in California, New York, Michigan, and across the US.

I have always called Malibu Media LLC cases “a settlement extortion scheme.” For years (prior to Paul Beik taking over the Texas Malibu Media cases, Malibu Media LLC cases were filed against anonymous John Doe Defendants, and they were dismissed as John Does (in my opinion, because of the squeamishness of previous Texas-based Malibu Media LLC attorneys to name and serve defendants and move forward against them in litigation). Not so with Paul Beik of Beik Law Firm PLLC.

Paul Beik has served Malibu Media LLC Texas defendants in the US District ,Court for the Southern District of Texas with regularity. In filing the lawsuit, he uses the same (identical) wording that other Malibu Media LLC cases use in other federal courts making an attorney who is not paying attention think he is inexperienced [that link (above) merely goes to a reference to “settlement factories,” described below]. Even if you look at Paul Beik’s case dockets, his Texas-based Malibu Media LLC cases appear to be nearly identical to every other Malibu Media LLC case filed across the US.

However, unlike many other “copyright troll” plaintiff attorneys, Paul Beik is not afraid to name and serve a defendant.

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Federal Rules of Civil Procedure on naming and serving a defendant (the 90-day rule).

The reason this is relevant is because 90 days after a complaint is filed in a federal court, FRCP Rule 4(m) gives a plaintiff attorney (here, Paul Beik) 90 days to amend the complaint and “name and serve” a John Doe defendant.

Beik could also dismiss the case before the 90 days have elapsed [which almost never happens], or he can ask the court for an extension of time to have that Texas defendant named and served [that happens].

The point here is that Paul Beik is under a procedural deadline to name and serve a defendant. Thus, whatever so-called “anonymous” settlement he can pull from the Malibu Media LLC John Doe defendant before the 90 days have elapsed, his client wants him to take.

Unfortunately for some John Doe Defendants, when they do not respond to his requests for settlement or they do not hire an attorney to represent them in this case, as a matter of procedure, instead of dismissing the case without prejudice and saying to the accused defendant “just kidding,” Paul Beik moves forward with litigation and has that Texas defendant named and served .

This is relevant because in litigation, there will become a time where the question of “whether the named and served Texas defendant actually downloaded Malibu Media’s copyrighted titles” becomes relevant. This happens in a deposition, where the defendant is placed under oath in front of a court reporter and the plaintiff attorney takes his testimony. *THIS* is where Paul Beik succeeds in forcing a settlement from a named and served Texas defendant who did not previously settle the claims against him.

NOTE: *THIS* (deposition) is also the moment where the named and served Texas John Doe Defendant is dismissed from liability [to avoid having his client pay the defendant’s attorney fees].

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Paul Beik Malibu Media Texas settlement scheme
Perlinator / Pixabay

HOW PAUL BEIK HAS MALIBU MEDIA LLC DEFENDANTS SERVED.

The complaint and request to disclose identity of subscriber.

First, Beik files the complaint alleging copyright infringement of Malibu Media’s copyright adult film titles. He files the lawsuit against ONE anonymous “John Doe” defendant (who lives in the Texas state, so there is no motion to quash to file [the court has personal jurisdiction over the defendant]). Beik mentions to the court that he does not yet know the identity of the defendant, and he asks the court to provide him an order to command the Comcast ISP (or AT&T ISP) to disclose the identity of the alleged downloader of Malibu Media LLC’s copyrighted titles.

Because courts are friendly to copyright holders, the Texas judges grant Paul Beik his request and order the ISPs to provide him the information that he needs.

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The subpoena sent to the ISP ordering it to reveal the subscriber’s identity.

Paul Beik then forwards a subpoena to the Comcast (or whichever) ISP, ordering the ISP to turn over the identity (and whatever else is approved by the court) of the account holder who was assigned the IP address at the time that the downloading of Malibu Media LLC’s adult titles took place.

The ISP’s duty to protect their customer and steps they take.

The ISPs are under a duty [an order, signed by the federal judge] to hand over this information to the plaintiff attorney (here, Paul Beik). To protect their customer, the ISP sends over [what I call] an ISP Subpoena Letter informing the Texas account holder that he has been implicated as a defendant in the Malibu Media LLC lawsuit.

The ISP Subpoena Letter also informs the account subscriber that if they wish to stop them from handing over their information, they may file a motion to quash (they call it “an objection with the court”). A motion to quash, if successful, would prevent the ISP from handing over the account holder’s information to Beik Law Firm PLLC (the plaintiff attorney — Paul Beik’s office — NOT to the court).

You can read more into motions to quash here (this isn’t the place to discuss this topic), but the jist of a motion to quash is that it tells the US District Court that it does not have “personal jurisdiction” over the defendant. This primarily occurs if the defendant lives outside of the state in which they were sued.

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Paul Beik is dangerous to John Doe defendants because he has them named and served.

Unlike many other Malibu Media LLC attorneys who are running a settlement extortion scheme (“settle whether you did it or not”), Paul Beik actually takes the additional step of having the defendant who did not settle the claims again him named and served.

In other words, if that Texas-based John Doe Defendant does not settle the claims against him or her, Paul Beik will amend the complaint and will add the actual ISP account subscriber’s name and address to the complaint. This forces the now “named and served” defendant into litigation, where they have 21 days to file an answer with the court or face a default judgement against them.

This is where Paul Beik takes the Malibu Media LLC cases (which for years, I considered nothing more than a “bluff”) one step further than many others — he actually has his Texas John Doe Defendants named and served, forcing them into litigation whether they like it or not.

Now obviously the purpose of this article was to identify Paul Beik as a Malibu Media LLC attorney, and to note that he DOES name and serve defendants. “Check.” This is not to say that he will not settle a case after a defendant is named and served — he will still settle a case, as this is the ultimate reason he has named and served the defendant [a settlement is more valuable to Malibu Media LLC than a judgement of $150,000 which they will never collect]. However, I simply want to point out that Paul Beik does name and serve defendants.

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A quick note about out-of-state settlement factory attorneys.

Lastly, there are many out-of-state attorneys who are not licensed in Texas who are actively advertising and are trying to take as many Malibu Media LLC clients from across the US as they can. Among them are a few [what I call] “settlement factories” (settlement factories are attorneys who run a volume-based business; they try to scare every defendant into settling the claims against them, and in my opinion they cause far more problems for the defendant than they solve).

There used to be only a small handful of attorneys who I considered settlement factories, but unfortunately, with the younger crowd graduating law school and joining the ranks, I am seeing more and more inexperienced lawyers throw up a shingle and a blog and act as if they are a legitimate law practice, when really they are just another “settlement factory.” I have even had confrontational experiences with these attorneys — many of whom did not understand copyright law at all, and one who even thought these cases were criminal. “Umm, no.”

In short, if you are sued by Paul Beik, I strongly recommend that you hire a Texas-licensed attorney to handle your case. I don’t care if you hire my Cashman Law Firm PLLC (often I don’t even take clients, and here is why) or if you hire another Texas attorney who is competent to work in these cases (if I cannot represent you, I will happily refer you to an attorney in Texas who can assist you).

While it is impossible to know which Texas-based Malibu Media LLC John Doe Defendants will be named and served, based on my knowledge of Paul Beik and his timing, I will do my best to list cases which at the moment are at risk of being named and served. TBA.

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[CONTACT AN ATTORNEY: If you have a question for an attorney about the Texas Malibu Media LLC cases and options on how to proceed (even specifically for your case), you can e-mail us at info[at]cashmanlawfirm.com, you can set up a free and confidential phone consultation to speak to us about your Malibu Media LLC case, or you can call us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].

CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.