Tag Archives: FRCP Rule 4(m)

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

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.

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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