Tag Archives: jurisdiction

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!

[scribd id=64331514 key=key-215wj3misks3ksdu8ytl mode=list]

How Judge Beryll Howell’s Decision Affects “John Doe” Defendants.

Over the past few days, as a response to last weeks article where plaintiff attorneys Dunlap, Grubb & Weaver dumped thousands of defendants, Judge Beryl Howell wrote a memorandum indicating which issues the US District Court for the District of Columbia court will hear, and which they will not. In short, as the various articles describe (see here, and here), the judge has opined that any arguments of jurisdiction, joinder, or first amendment defenses are not relevant until a John Doe defendant is named as a defendant in the case.

For the most part, when reading this 42 page memo, I was unimpressed. Her motivations and proclivities in favor of the plaintiff copyright holders were apparent, but her opinion was unmoving. I shrugged my shoulders and thought to myself that this was not a controversial opinion. It wasn’t until I started reading the forums in ArsTechnica.com that the users realized that the judge had some serious bias issues. Some were even of the opinion that the judge should not have heard the case in the first place because of conflicts of interest and violations of rules of recusal.

As for her opinion, plaintiff attorneys and courts for months now have been holding that a defendant does not have standing to contest jurisdiction (e.g., “Dear Court, I was sued in the District of Columbia. I live in New York. Court has no personal jurisdiction.”) until they are named in the lawsuit (e.g., John Doe #123 -> Real Name Defendant). This is the reason defendants have been unsuccessful in filing motions to quash the various subpoenas issues by the courts against the internet service providers ordering them to surrender over their subscribers’ information.

The change in this Judge’s opinion was that while many cases (e.g., the various Larry Flynt Productions cases and the Far Cry lawsuits, just to name a few) over the previous months have been severed and dismissed because of improper joinder issues (e.g., one accused defendant downloading a copyrighted file on Monday should not be joined in a lawsuit with a defendant he does not know who downloaded that same copyrighted file on a Wednesday, or “subsequent acts of copyright infringement by unrelated defendants are not sufficient to justify the joining of the defendants together in one John Doe lawsuit.”), here Judge Howell has stated that she will not even entertain a misjoinder argument from a defendant until that defendant is named as a defendant in the lawsuit.

In my opinion, the court is simply ‘kicking the can down the road’ for matters of simplicity. This opinion was nothing fantastic, and it did not affect our clients because none of them have been named in any of these lawsuits.

However, as a result of Judge Howell’s decision, articles on TorrentFreak (“BitTorrent Case Judge Is a Former RIAA Lobbyist and Pirate Chaser“) and ArsTechnica.com (“RIAA lobbyist becomes federal judge, rules on file-sharing cases“) have surfaced pointing out obvious ethical issues regarding her even sitting on the bench for these cases given her past intimate connection with copyright lobbying groups, including past employers, conflicts of interest, issues of bias, and issues of recusal which have raised a flare of users’ objections to her adjudicating these cases.

As far as my clients need to worry, this is simply an opinion by a judge (biased or not) giving the plaintiffs free reign to go after John Doe defendants and to continue to solicit exorbitant settlement fees in the amount of thousands of dollars all while the plaintiff attorneys continue to tell the judges that they are conducting “discovery.” The issues have not changed, and there is no new law with this opinion. For my clients who are defendants in these cases, this opinion simply means that the court will likely not sever the case on its own as it did in the Far Cry case, but rather, it will wait until the plaintiff attorneys begin naming defendants before they consider whether the defendants are properly joined together with the thousands of other defendants.