“GOING TO TRIAL: BAD!”

“GOING TO TRIAL: BAD!”

I was watching the DC Malibu Media, LLC case which was assigned to Judge Facciola, and on 9/25, there was an order which concerned me. In view of PA Judge Baylson’s order forcing Malibu Media to name and serve defendants, or else, this order became relevant.

We all know that Judge Facciola is against the internet downloader. He is also stubbornly in favor of copyright trolls, pornography production companies, and the protection of copyright rights for obscene materials. This is why his order in the Malibu Media, LLC v. John Does 1-7 (Case No. 1:12-cv-01119 [12-1119 (EGS/JMF)]) case in DC was controversial.

In stark opposition to my “GOING TO TRIAL: GOOD!” article that I posted just moments ago, it appears as if Judge Facciola has figured out a way to TRAP internet users into being named as defendants, and to embarrass them and force them to fight their cases.

In Facciola’s 9/25 order, the judge allowed Malibu Media, LLC to send subpoena notices to the ISPs. He allowed them to even get all they wanted regarding the contact information of the suspected John Doe Defendants. Here’s the catch — Facciola ordered that MALIBU MEDIA, LLC MAY NOT SETTLE ANY CASES WITH JOHN DOE DEFENDANTS BEFORE NAMING THEM FIRST.

“4. Plaintiff may not engage in any settlement discussions with any persons identified by the ISPs in response to the subpoenas.”

We all know that Malibu Media sues people in the states in which they live, and thus personal jurisdiction and venue is usually proper in their cases. In addition, we know that Malibu Media’s business model is to call defendants and scare them into settling for thousands of dollars at a time. We also know that the lawsuits implicate the defendants for ONE film only, but when defendants call up to settle, they are forced to settle ALL ALLEGED CLAIMS AGAINST THEM (which can sometimes be 15 “hits”, 25 “hits” — or more recently, I’m hearing numbers in the 40’s — which can amount to settlements in the TENS OF THOUSANDS). This means that even if a defendant SUCCEEDS in fighting their case, Malibu Media, LLC can still turn around and sue them again, and again, and again (bad odds for a downloader interested in x-art’s content).

So now, settlement is NOT an option for Malibu, as their hands are tied by the judge’s order (and whether they’ll comply on the back-end is a dangerous proposition that could get them in trouble if a Doe who settles reports that settlement to the court). Or will it with Judge Facciola as the judge?

Here is my advise with this case. For the putative defendants, your option is not to settle your case, but simply to make yourself someone the plaintiffs do not want to name and serve. In other words, have your attorney contact Malibu Media with evidence of your innocence. I suspect that if we persuade them that you have a good defense, they will decide to name and serve OTHER DEFENDANTS (and not you).

So in sum, I expect that Judge Facciola will have his way, and John Doe Defendants will necessarily have their reputations tarnished by being named in a pornography lawsuit. To those defendants who ARE named, my only advice is to have your attorney put up a good fight. Quite frankly, at this point, some of these copyright trolls deserve one.

Judge Facciola new ruling could kill Hard Drive Productions, AF Holdings, and West Coast Productions all at once.

Today I received a bunch of what are commonly known as “scare” letters from Prenda Law Inc.  What is interesting is that all the letters I received were for the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) case. While at first I thought the timing to an order by Judge Facciola was too much of a coincidence (read on), it turns out that something is going on with this case which has gotten the law firm sending out letters.  In my experience this usually coincides with a dismissal.

When I looked into it, I found what appeared to be my answer in a judge’s order in the West Coast Productions, Inc. v. Does 1-1,434 (Case No. 1:11-cv-00055) case filed in the District of Columbia District Court, where the judge refused to allow Dunlap Grubb & Weaver, PLLC to add new accused IP addresses to the case and then get the subscribers’ contact information from their ISPs.  Even better, for the FIRST TIME, this DC judge ruled in line with the other district courts that a defendant who does not live in the District of Columbia cannot be sued in the DC court because the DC court lacks jurisdiction over those defendants.  The exciting piece of this news is that DC has been notorious for allowing cases to proceed against thousands of John Does who lived outside of DC.  Any motions to quash summarily fail.

Even better, the judge who made this order was Judge Facciola, the judge in the controversial Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) case.

No doubt this has gotten the Steeles, the Hansmeiers, and the Duffys nervous because their cases are in the District of Columbia.  As far as I am concerned, this order — even though the West Coast Productions, Inc. order has nothing to do with Prenda Law Inc., I suspect it will be a death nail in all three cases — West Coast Productions, AF Holdings, and Hard Drive Productions.

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Judge Bates “removed” from Hard Drive Productions, Inc. v. Does 1-1,495 case. Potentially bad news for defendants.

Like most of you, we here at the Cashman Law Firm, PLLC have been watching the Hard Drive Productions, Inc. v. Does 1-1,495 (1:11-cv-01741) case in the US District Court for the District of Columbia.

To our surprise and against the 1+ year trend of the DC Court, earlier this month, Judge Bates went against the trend to remain silent about the validity of these cases and inquired about whether or not John Doe Defendants in the case actually lived in DC. In short, we understand that if the judge came to the conclusion that this is yet one more of John Steele’s mass bittorrent cases (but filed in DC as a result of forum shopping), then the judge would have likely come to the conclusion that the DC court did not have jurisdiction to try the case. As a result, he would have likely SEVERED AND DISMISSED the case, giving Steele|Hansmeier, PLLC (now Prenda Law, Inc., a story in itself) the opportunity to file against defendants in their home states. As you have read in previous posts, as a result of such a dismissal, Steele would have three years from the alleged date of infringement to file these lawsuits in defendants’ home states.

What no doubt concerned Steele (and what caused an overflow of conversations on the various bittorrent forums) is that six days ago, Judge Bates took the extra step and invited Doe Defendants to file motions to quash with the Clerk’s office, stating that they would be put under seal (meaning, hidden from view).

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However, in spite of the judge’s invitation, I have not been advising people as to whether they should or should not file the motion to quash — and in fact I have been overly cautious about his invitation to do so — because historically, the District of Columbia Court has typically UNSEALED motions to quash when they deny them, leaving all the formerly sealed motions unsealed and naked for everyone to see.

The DC court has historically been AGAINST accused internet downloaders. Yes, we have certainly had our fair share of victories, but then again, many of the original cases are still alive (and because of this, plaintiffs have added perhaps thousands of new defendants to various DC cases, hence the new subpoena letters for older cases). I do not see why Judge Bates would be bold enough to go against former judges’ orders for essentially identical cases [See, Stare decisis (Anglo-Latin pronunciation: /ˈstɛəri dɨˈsaɪsɨs]) is a legal principle by which judges are obliged to respect the precedents established by prior decisions.], and the fact that Judge Bates was willing to go against Judge Beryl Howell and the others made me optimistic, but still cautious.

As much as this invitation to file appeared to signal a victory for the accused internet users, for whatever reason — political pressure, angry judges, etc. — today Judge Bates has essentially stepped down presiding over the case and he has handed the case over to Judge Facciola. This magistrate judge has seen bittorrent cases before, and in my opinion this could be a sad moment for the accused Does. To be clear, I understand that this transfer might not have been done with the permission or consent of Judge Bates. In fact, his order explicitly states, “Consent of the District Judge [him] is not necessary.” So perhaps we can piece together what has happened behind closed doors.

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While it remains my opinion that this case suffers from issues of improper jurisdiction and improper joinder, Judge Bates is no longer making the decisions as to whether the case will be dismissed or not. Similarly, it is no longer clear whether it is in Does’ best interests to file the motions to quash, or whether they will suffer the same fate as all the other motions to quash filed in the DC court over the past year.

As for what defendants should do — I would probably wait and see what Judge Facciola does. Will he continue in Bates’ footsteps and kill the case? Or will he deny the motions to quash and move forward? We can only wait and see.

West Coast Productions, Inc. Case is DEAD.

With the flick of a wrist and the power a pen, the West Coast Productions, Inc. v. Does 1-5,829 case is dead.

I don’t know whether I should be saying congratulations to the Cashman Law Firm, PLLC clients who are now dismissed from the case, whether I should be writing an obituary on what was one of the longest-lasting monster bittorrent cases, or whether I should be skeptical and cautious at such a simple and eloquent end to such a violent case.

This case had everything wrong with it. Improper joinder, improper jurisdiction, even the content it accused internet users of downloading was distasteful. “I don’t like ugly biker chicks, I’d never download their films,” a Doe Defendant once told me.

On top of everything wrong with it, this case had baggage, namely West Virginia’s West Coast Productions, Inc. lawsuits with Kenneth Ford at the helm, all of which went bust last year.

But it wasn’t jurisdiction or joinder which caused to downfall of this case; it was failing to name and serve defendants within the 120 day limits as dictated by the Federal Rules of Civil Procedure, Rule 4(m). Judge Kollar-Kotelly, realizing that the plaintiff attorneys were using the courts to extract settlement agreements, decided to implement and enforce this rule forcing the case to shut down.

The last stab to the case was a September 1st, 2011 deadline where the plaintiff attorneys were ordered to name and serve defendants, and to report to the court by the end of today who they have named and served.

I was sure that they would at least name the John Doe Defendants who lived in the District of Columbia, and they would in turn ask the court for more time. But instead, they named NOBODY. They merely packed up their bags, closed up shop, and dismissed the case.

What does this mean? Could it mean that the plaintiff attorneys do not have the resources, the time, the patience, or the energy to take clients to trial? Or, did West Coast Productions, Inc. say “enough is enough; we’ve made enough money in settlements — let’s close up shop.” It cannot be that easy.

Here is my take. Before they sue each and every one of the defendants in smaller groups in the correct courts — a tactic that Steele Hansmeier, PLLC and other plaintiff attorneys have caught onto — they had to kill the big bad monster of a case. After all, it would be bad to sue the same defendant in two cases at the same time for the same alleged act of infringement.

So for now, those of you who were defendants in this case, you are no longer defendants, and I congratulate you on your victory. I would whip out the champagne bottles and celebrate, but be very aware that there is one more West Coast Productions, Inc. v. Does case lurking in this same DC court. West Coast Productions, Inc. (1:11-cv-00055), our case’s little brother is still alive and well. While Judge Kollar-Kotelly has taken the sword to slay the extortion machine that was our West Coast Productions, Inc. case, so far, Magistrate Judge John Facciola has been merely pushing paper on the other West Coast Productions, Inc. case.  Really, nothing of substance has been going on there.

What about the letters and the phone calls you all have been receiving?  Should you ignore them?  Probably not.  For the most part, the plaintiff attorneys at Dunlap Grubb & Weaver, PLLC have your contact information, and they plan to use it.  Expect multiple “scare” letters saying, “we plan to sue you unless you pay us $3,500 (or more) by XYZ date.”  Then expect to get additional letters for higher amounts.  As far as whether this is a bluff or not, it is best to be prudent and to watch where they are suing in order to determine where they have hired local counsel.  For example, if you are watching the copyright cases on RFC Express (http://www.rfcexpress.com), and you see that one of Dunlap Grubb & Weaver’s cases — whether West Coast Productions, Maverick Entertainment Group, Call of the Wild, etc. etc. — has been filed in your home court, that should be a red flag that you might be sued yourself.  Lawyering up (e.g., hiring an attorney) at this point if you have not already done so, or even proactively settling might be a wise option.  However, if you see no lawsuits of theirs in your state, my opinion is that there is no need to feed their war chest with your settlement dollars.

I have attached the dismissal letter below for your viewing pleasure. Simple. Voilà!

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Congratulations to Cashman Law Firm “West Coast Productions, Inc. v. Does” clients, now dismissed.

Congratulations to the newest group of clients who have been dismissed in the West Coast Productions v. Does 1-5829 case (1:11-cv-00057-CKK) in the US District Court for the District of Columbia.

NOT ALL DEFENDANTS HAVE BEEN DISMISSED.  THE CASE IS STILL ALIVE.

As we previously discussed, Judge Kollar-Kotelly set a 6/20 deadline where plaintiff attorneys were ordered to either name and serve defendants identified in their 6/1 statement or else she would dismiss them on her own just as she did previously.  In short, the judge is pressuring the dismissal of unnamed John Doe defendants through the Federal Rules of Civil Procedure, Rule 4(m), which gives the plaintiff attorneys 120 days to amend their complaint and name the defendants, or else they must dismiss them from the case.  In the past, where judges have blindly granted extensions to this rule (which are to be granted freely according to the rules), there is a slight trend beginning to form where judges are using this same Rule 4(m) to force the plaintiff attorneys to “name or dismiss” John Doe Defendants.

Similar to a criminal who releases hostages in order to improve their bargaining power and good faith with the authorities, on the SAME DAY the plaintiff attorneys at Dunlap Grubb & Weaver dismissed these hundreds of defendants, they asked for yet another extension of time to name and serve defendants.  Until Judge Kollar-Kotelly grants this, her 5/11 Order (Doc. #72) requiring all remaining defendants be named and served or dismissed by June 30th still stands.

The interesting side note here is that while in the past neither they nor the courts have acknowledged that they were suing people for the purpose of soliciting settlement agreements to the tune of thousands of dollars from each defendant, in their extension request, the plaintiff attorneys casually mentioned that they needed the extension to attempt to send letters to the defendants with the intention of having them settle their cases.  This appears to be the first admission where they admit to the court that they are soliciting settlements, whereas in the past, both the plaintiffs and the judges have been turning a blind eye to the fact that this is happening.

The dismissal letter can be found below.  I congratulate all the defendants who have been dismissed, and I look forward to see what happens on June 30th.

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