It is very easy to put up a banner claiming “MISSION ACCOMPLISHED — NO MORE BITTORRENT CASES IN SOUTHERN DISTRICT OF NEW YORK,” but reality is not that simple. A judge can give a ruling, and it can be a darned good ruling which is binding on all other judges in that federal district (similarly, that ruling is persuasive for judges in other federal districts). One such case is the case written up by Sophisticated Jane Doe in her “The Domino Effect: Trolls are not welcome in the Southern District of New York anymore” article posted just moments ago. I do not need to re-write this up — she did a wonderful job, and there is no reason to duplicate her efforts.
That being said, this case does merit some discussion. The name of the case is Digital Sins, Inc., v. John Does 1-245 (Case No. 1:11-cv-08170, or 11 Civ. 8170) [misspelled], filed in the U.S. District Court for the SOUTHERN DISTRICT of New York (remember our blog post about forum shopping there?). I am happy to share that the case is now SEVERED AND DISMISSED. Obviously, congratulations to the Cashman Law Firm, PLLC clients who were part of that case. This ruling is WONDERFUL for you.
As far as I am concerned, this ruling was the order I was waiting for back in March when I reported that all of copyright troll Mike Meier’s New York cases were consolidated by Judge Forrest. Similarly, you’ll see what I thought would happen in my “New York Judge consolidates and freezes SMALLER BITTORRENT CASES for plaintiff attorney” article earlier that month. Well in short, my opinion with hindsight was that all this was a dud, and Judge Forrest merely consolidated the cases to rein in Mike Meier so that she can control him and his cases so that they all had uniform outcomes. This was obviously a step in the right direction, but it did not dispose of the cases in their entirety. Perhaps because Judge Forrest had experience with copyright cases in the past, she thought she should be the one to preside over them. However, in my opinion, she just made them more orderly; she didn’t rule on the underlying issues plaguing each of Mike Meier’s cases.
Here comes Judge Colleen McMahon of the same Southern District as Judge Forrest, and she (like Judge Forrest) has my respect. In her ruling on Tuesday, she took the opportunity to take a John Doe ruling, and turn it into NEW LAW FOR NEW YORK COURTS (obviously I am referring to the federal courts). What impressed me was that not only was she aware of Judge Forrest’s activities, she changed the law by dissenting with them.
“Judges Forrest and Nathan, have decided to allow these actions to go forward on a theory that permissive joinder was proper. I most respectfully disagree with their conclusion.” (p.4)
Further, she ruled that if Mike Meier wanted to sue these 244 defendants, he may do so in separate lawsuits, AND HE MUST PAY THE $350 FILING FEE FOR EACH LAWSUIT (that’s $85,400 in filing fees that Digital Sin, Inc. will have to pay if they want to go after the dismissed defendants).
“They are dismissed because the plaintiff has not paid the filing fee that is statutorily required to bring these 244 separate lawsuits.” (p.4)
What made this case blog worthy (and you’ll notice, I rarely post about the run-of-the-mill dismissals that happen every day in various jurisdictions when their rulings teach nothing new) was that Judge McMahon suggested TWO STRATEGIES to John Doe Defendants that she believes would successfully refute the plaintiff attorney’s geolocation evidence as proof that the court has personal jurisdiction over the accused IP addresses.
Firstly, she suggests that the John Doe defendants not living in the jurisdictional confines of the court simply file a SWORN DECLARATION that they live somewhere else.
“John Doe 148 could have overcome [the geolocation data evidence provided by the plaintiff] by averring [e.g., in a sworn declaration] that he was a citizen and resident of some state other than New York — even New Jersey or Connecticut, portions of which are located within the geographic area that is covered by the geolocation data.” (emphasis added, p.5)
Secondly, she said that since plaintiff attorneys are getting the personal jurisdiction right (e.g., filing lawsuits against Californians in California, against Texans in Texas, etc.), defendants could start asserting the “WRONG VENUE” argument (essentially saying, “Court, yes, I live in New York. But I was sued in Long Island and I live in Buffalo. It would be an extreme hardship for me to travel down to Long Island every time I need to show up for a hearing there to defend my case.”). The actual verbiage suggested by the Court is that “…plaintiff has failed to plead facts rom which a reasonable trier of fact could conclude that this Court has personal jurisdiction over this John Doe, or that venue is properly laid in this district.” (emphasis added).
Next, this ruling is VERY EXCITING because it puts handcuffs on Mike Meier should he wish to file against any of the severed and dismissed defendants in a follow-up case. Those rules are:
1) When an ISP complies with a subpoena request, it may not share the telephone number or e-mail address of the subscriber with the plaintiff attorney.
2) Assuming the ISP does not file a motion to quash (it obviously may AND SHOULD do so on behalf of its subscribers [my opinion]), the ISP shall share the subscriber’s information WITH THE COURT ONLY (not directly to the plaintiff as is usually done), and the court will disclose the information to the plaintiff attorney. (I’m not sure the benefit of this — they still get the contact information of the John Doe Defendants this way).
3) The plaintiff may use the information disclosed ONLY FOR THE PURPOSE OF LITIGATING THAT CASE (so the plaintiff may no longer use the threat of future litigation if they do not immediately settle to extort a settlement. This was a tactic used by many plaintiff attorneys (most notoriously, Prenda Law Inc. who admitted that they dismissed the case so that they can go after the John Doe Defendants [extorting settlements] without the court’s involvement).
Lastly — and her timing is quite interesting as we just finished writing about forum shopping in bittorrent cases — she warned Mike Meier not to engage in “judge shopping.”
“Lest plaintiff’s counsel think he can simply put cases against the severed and dismissed John Doe defendants into the wheel for assignment to yet another judge, I remind him of Local Civil Rule 1.6(a) [which requires the plaintiff attorney to bring the existence of potentially related cases to the attention of the Court].”
For your reading pleasure, I have pasted a copy of the order below. For my own opinion on the topics discussed by the judge, I have pasted them below the judge’s order.[scribd id=93798958 key=key-2fufis4rlcf1fuhmb3kz mode=list]
MY OPINION: There is more here that I did not write about, namely that the judge believes that all the bittorrent cases currently being held by Judge Forrest and Judge Nathan should be assigned over to her so that she can dispose of them once and for all. She also went into other judge’s rulings which duplicate content in other articles on the blog. However, once again, we have another wonderful ruling. However, moving forward, perhaps I am a bit jaded, but I don’t foresee Judge Forrest or Judge Nathan tomorrow assigning over all their bittorrent cases to this judge. There is now a disagreement in the New York courts (as there are in many jurisdictions) as to how to handle these cases. I would love to jump up and down, wave a banner and declare “MISSION ACCOMPLISHED — NO MORE BITTORRENT CASES IN SOUTHERN DISTRICT OF NEW YORK,” but quite frankly this is not reality.
More likely than not, plaintiff attorneys such as Mike Meier, Jason Kotzker, and any other copyright troll who wants to file in New York will continue to file there. As you can see in my forum shopping article (which should more properly be called “Judge Shopping”), an attorney can in ONE DAY file 9 SEPARATE CASES and receive 7 SEPARATE JUDGES, as was the case with Kotzker’s recent filings.
In addition, while the SWORN DECLARATION argument and the VENUE arguments are both easy solutions to disprove the plaintiff’s prima facie case for personal jurisdiction (meaning, the bare minimum a court will require in order to accept the fact that it has personal jurisdiction over the defendants in the case), a John Doe Defendant hoping to hide his identity from the plaintiff attorney and quash a subpoena should not be excited by these solutions. 1) For the sworn declaration, they’ll necessarily be giving up their true location (they cannot lie that they live in Connecticut when they live in California), and we all know that Mike Meier is only ONE local attorney to a larger IP monetization group (“The Copyright Enforcement Group”) which has other attorneys in other states, and who continues to recruit new hungry would-be copyright trolls. So even if they succeed in getting their case dismissed here, guess who will be filing against them in their home state’s federal court? 2) A John Doe Defendant who asserts the “correct state, wrong venue” argue just made a big blunder — he admitted that personal jurisdiction is proper in that state. Rules for venue are based on a number of factors, NOT ONLY WHERE THE DEFENDANT LIVES. Similarly, no doubt the plaintiff will respond in a wrongful venue argument in a motion to quash that “John Doe filed this motion to quash asserting wrongful venue (which by the way is not a valid ground to quash a subpoena; jurisdiction IS), but he is not a party to the action [yet] and thus he has no standing to file this motion to quash.” Remember this? Lastly and realistically, the proper time a defendant CAN AND SHOULD use this wrongful venue argument is in his ANSWER (which means he was already NAMED as a defendant in the case). Too late. There are better issues to kill a case at this point than complaining that the court is too much of a drive.[DISCLAIMER: I’ve given many opinions here which is not to be taken as legal advice. Each defendant has different needs and different circumstances, and for this reason, the legal advice I give for one of my clients may not be appropriate (or may even be harmful) to another client who’s circumstances are different. Also, obviously no attorney-client relationship is formed until you sign a retainer and become a client.]