Judge Reggie Walton (DC)

AF Holdings, LLC v. Does 1-1,140 — Dismissed, but according to the plaintiff’s plan.

by

On Friday I wrote a scathing review of the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) case dismissal, but I did not post it.  In short, congratulations to the Cashman Law Firm, PLLC clients (and all the others implicated in this case) who have been dismissed from the case.

The difficulty I am facing is that while being dismissed is the goal of any John Doe defendant in a bittorrent case, in my opinion, I am uncomfortable with the way the dismissal happened. 

As many of you know, there was new precedent set by Judge Facciola’s ruling in the West Coast Productions, Inc. v. Does 1-1,434 (Case No. 1:11-cv-00055) case, and as a result, Judge Reggie Walton gave the plaintiffs until March 9th, 2012 to start naming or dismissing defendants.  In short, instead of admitting improper jurisdiction, yet another D.C. judge opted to invoke the Federal Rules of Civil Procedure, Rule 4(m) which gives plaintiffs 120 days to either name or dismiss defendants.  Understanding that the Prenda Law Inc. plaintiff attorneys had no interest in continuing the lawsuit against individual Doe defendants, they dismissed the case.

Now while it is always nice when opposing counsel opts to kill a case rather than move forward against defendants, Prenda Law Inc.’s local counsel revealed more than he probably should have to the court.  In a move which probably angered Paul Duffy and his superiors, Tim Anderson wrote the following paragraph:

Plaintiff acknowledges the Court’s busy docket; Plaintiff is currently engaged in settlement negotiations with a substantial number of putative Doe Defendants.  Rather than prematurely initiate litigation against individuals who may ultimately wish to resolve Plaintiff’s claims via settlement — and thus needlessly burden the Court — Plaintiff believes that dismissing the claims against the remaining non-settling Doe Defendants in this action without prejudice in lieu of filing actions against non-settling individuals strikes a favorable balance between preserving Court resources and safeguarding its intellectual property rights.

In other words, “Court, we are dismissing the case so that you do not need to waste your time looking over us watching what we are doing.  We would prefer not to have you watch us anyway because you will force us to do something we don’t want to do (e.g., “name” defendants), which would make our extortion scheme much more costly to us and thus we wouldn’t be able to sustain our operation if we had to actually go after defendants.  So thanks to you, since we now have all the names we need from the ISPs of the putative Doe Defendants, we will continue to call and harass those who haven’t settled without having you worry about what we are doing.”

In short, I would have liked to see the judge issue an order indicating that since they have dismissed the case, they are no longer permitted to use the names they acquired from the subpoenas and collect settlements from putative defendants.  The legal system is not a tool to discover private information about internet subscribers only to dismiss the case and continue their extortion scheme offline.

For this reason, I suspect that you understand why I am not so happy with this case dismissal.  Getting your names only to dismiss the action was simply part of their plan all along.

[scribd id=83966226 key=key-1r0x2xsvqe2ermu1aas2 mode=list]

What is going on in the District of Columbia (DC) with their bittorrent cases?

by

DISTRICT OF COLUMBIA — Everyone knows by now that DC is not a friendly jurisdiction to be sued in. Like Washington D.C., the judges do not follow one another, and each judge does what he or she feels should be policy. Two examples — Judge Beryl Howell, a copyright lobbyist turned federal judge, and Judge Bates — friendly towards downloaders (but subsequently removed by other judges from the Hard Drive Productions, Inc. case).  As far as I am concerned, this court is wrought with as much politics as Washington D.C. is in general.

So let’s go through some case updates, sorted by plaintiff attorney.

I) DUNLAP GRUBB & WEAVER, PLLC

Imperial Enterprises v. Does 1-3,545 (Case No. 1:11-cv-00529) [at one point it was Imperial Enterprises, Inc. v. Does 1-3,145] — dead. On 9/26, Judge Reggie Walton ordered the plaintiffs to name and serve or dismiss defendants or dismiss them [according to Federal Rules of Civil Procedure (“F.R.C.P.”), Rule 4(m)] by 12/20/2011. Instead of naming defendants, Dunlap Grubb & Weaver, PLLC (who sends out settlement demand letters under the name “Media Law Group” or “MLG”) decided to dismiss all defendants. Case dismissed; congratulations to all Cashman Law Firm, PLLC defendants (and all others) who were Doe Defendants in this case. See order here.

Voltage Pictures, Inc. v. Does 1-24,582, a.k.a., “the Hurt Locker case” (Case No. 1:10-cv-00873) [at one point it was Voltage Pictures, Inc. v. Does 1-5,000] — dead. This one was actually funny. On 11/4, Judge Beryl Howell got tired of this case being on her docket. So she gave Dunlap Grubb & Weaver, PLLC (“DGW”) until 12/5 (extended to 12/12) to name and serve defendants or to dismiss them (again, the judge invoked F.R.C.P. Rule 4(m) to wipe what became a stale case off her docket).  However, DGW missed the deadline, and instead of having the judge dismiss the case, they dismissed it themselves to save themselves the embarrassment of having yet another case dismissed for them failing to move forward against defendants.

Regarding this plaintiff attorney, I received word that they were gearing up to sue individual defendants in their home states. This is nothing new as they have already started “naming” defendants for their older dismissed cases. More recently, I received word that they are hiring local attorneys and following the Patrick Collins, Inc. model of stating to dismissed defendants, “we have hired XYZ attorney in your state — unless you settle with us, we will name you in a lawsuit in your state.” The problem here is I have reason to believe they’ll follow up with the lawsuits.

There are some other “conspiracy” issues regarding this plaintiff, namely that they sent subpoena letters demanding names and contact information for various John Doe Defendants *AFTER* dismissing their IP addresses and releasing them from the case. This was written up by Torrentfreak.com, and you can read up about it here.  (NOTE: After the ISPs refused to hand over subscriber information, they added the IP address back into the lawsuit — something I don’t think they were allowed to do — but these Doe Defendants have since been dismissed as well and now they are receiving “scare” letters now as we speak.)

II) STEELE | HANSMEIER, PLLC (NOW PRENDA LAW INC.)

As we know, a few months back, Steele Hansmeier, PLLC (now Prenda Law Inc.) ventured into the DC District doing some “forum shopping” with their Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) and their AF Holdings, Inc. v. Does 1-1,140 (Case No. 1:11-cv-01274) cases — having been essentially locked out of their own Illinois jurisdiction, they were looking for a few favorable rulings based on DC’s “plaintiff-friendly” reputation in the bittorrent cases of the past year (they have since found a happier home filing suits in the Florida / Miami Dade state courts). In these cases was the first appearance of Paul Duffy who has since taken over Steele’s position in the firm (yes, it appears as if he is out).

AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) has survived scrutiny without a hiccup as Prenda has been “pretending” to search and see which defendants lived in DC. To make their searches appear valid, they immediately started dismissing a bunch of defendants a few at a time (“NOTICE of Voluntary Dismissal re Does 1-8,” “…Does 9-15,” “…Does 16-35,” “…Does 36-65” — what I do not understand is, “Hasn’t Judge Reggie Walton figured out their game yet?” After all, it appears to me as if none of the defendants [so far] live in DC. And, they filed the complaint in JULY 2011! Did it REALLY take them 5 MONTHS to figure out that the first 65 defendants did not live in DC? I could have done this in just a few minutes using known geolocation tools). In short, Judge Reggie Walton is allowing this to move forward for now, but he is not stupid. My prediction is that he is going to bust this case using FRCP 4(m) any time now.

Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) is the case that is filled with controversy. It was in this case where Judge Bates figured out that most of the defendants did not live within the jurisdiction of the DC court. He invited Doe Defendants to file motions to quash and promised that he would keep their information sealed and private. My first inclination when I saw this was “watch out! — DC does not keep sealed documents as private — as soon as they deny the motions to quash, they expose the defendants’ information when denying the motions.”  Then a few days later, as we wrote about here, whether for political reasons or from pressure from the other judges, Judge Bates was removed from the Hard Drive Productions, Inc. v. Does case and he was replaced by Judge Facciola, someone who in my estimation was not friendly towards bittorrent defendants. For weeks, we saw nothing from him — no indication as to whether he would honor Judge Bates’ offer to submit motions to quash anonymously, or whether he would summarily deny them. I suspected he would deny them in line with DC’s past strong stance AGAINST motions to quash.

Well, I am sad to share that Judge Facciola ended up being exactly who I thought he was. In his 12/21 ruling, he reversed everything Judge Bates was trying to do when he wrote in his order that “I will not consider any motion unless it is publicly filed.” In other words, unless you use your real information in your motion to quash (e.g., your real name, address, phone number, etc. — the exact information the plaintiff attorneys are looking for in order to start sending you “scare” letters and calling you with the effect of scaring you into a settlement), Facciola’s court will not consider your sealed motions to quash as Bates promised they would.  It need not be said that when you file a motion to quash, everybody can see it as the filing is a public document. However, Judge Facciola does not care about your privacy interests, nor does he care if plaintiff attorneys receive your private information, because according to him, “[i]ndividuals who subscribe to the internet through ISPs simply have no expectation of privacy in their subscriber information.” (emphasis added) I wonder when the last time an ISP allowed a subscriber to open an account without the subscriber’s personal information.

In sum, expect this case to move forward like all the others. We appear to have a copyright-troll friendly judge here, so please prepare yourselves to have your private information handed out to your plaintiff attorneys by your ISPs; until now, I expect that they haven’t done so. I would love to give you good news here, but so far there is no indication this is going away any time soon — at least not until Prenda Law Inc. gets its payday.