Which will be the bittorrent lawsuits of tomorrow?

With the larger cases from Dunlap Grubb & Weaver, PLLC heading off into the bittorrent litigation graveyard, the plaintiff attorneys have not yet learned their lesson about the dangers of filing John Doe lawsuits with thousands of Does sued together. Below are just a few cases filed by the same plaintiff attorneys — newer cases — which thus far have not achieved much traction. No doubt we’ll be seeing more of these in the coming months.

First and foremost, Ira Siegel’s new case, Digital Sin, Inc. v. Does 1-5,698 (Case No. 4:11-cv-04397-LB) filed in the US District Court for the Northern District of California. Apparently it did not occur to his client that suing 5,698 defendants is the easiest way for a case to achieve scrutiny.

Also by Ira Siegel is his SRO Pictures, Inc v. Does 1-3036 (Case No. 5:11-cv-04220-PSG) case, his Discount Video Center, Inc. v. Does 1-5,041 (Case No. 5:11-cv-02694-PSG) case, his Zero Tolerance Entertainment, Inc. v. Does 1-2,943 (Case No. 3:11-cv-02767-EDL) case, each filed in the same California court as Digital Sin.

We are already hearing from Doe Defendants on Ira Siegel’s Third Degree Films, Inc. v. Does 1-3,577 (Case No. 4:11-cv-02768-LB) and most notorious, his Patrick Collins, Inc. v. Does 1-2590 (Case No. 3:11-cv-02766-MEJ) case, also in the same California court.

Next, filed by Thomas Dunlap himself (of Dunlap Grubb & Weaver, PLLC) is CineTel Films, Inc. dba Family of the Year Productions, LLC v. Does 1-1,052 (Case No. 8:11-cv-02438-JFM) filed in the US District Court for the District of Maryland. This one should be fun. This same plaintiff has had Dunlap sue in his home US District Court for the District of Columbia, the Cinetel Films Inc. et al v. Does 1-1,951 (Case No. 1:11-cv-01334-RLW) case. Same plaintiff, different jurisdiction. My guess is that Ellis Bennett or Nicholas Kurtz will be the on the paperwork for these since they have to date handled Dunlap Grubb & Weaver’s older cases.

In the District of Columbia (where most of Dunlap Grubb & Weaver’s cases are filed,) to everyone’s surprise is the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274-RBW) case, apparently using Timothy Anderson of Anderson & Associates, PC as the local counsel. The funny thing about this one is that AF Holdings, LLC is John Steele of Steele Hansmeier PLLC’s clients (where Steele Hansmeier has sued a bunch of AF Holdings, LLC v. Does smaller cases across the country already), so this Tim Anderson guy is probably another one of Steele’s local counsel puppets (sorry Tim).

Then, there is Evan Stone’s FUNimation Entertainment v. Does 1-1,427 (Case No. 2:11-cv-00269-DF) filed in the US District Court for the Eastern District of Texas. I haven’t heard much about this case yet, but Evan Stone is the attorney who was the plaintiff attorney over the LFP Internet Group, LLC v. Does [LFP a.k.a. “Larry Flint Productions”] lawsuit that had over 6,000 defendants in total dismissed last year. Maybe he’s back in the game with a case that won’t be immediately dismissed.

Last, but not least, there is a set of triplet lawsuits filed by an unknown McDaniel Law Firm plaintiff (probably a copycat attorney who has watched these bittorrent cases develop and now has decided to try his hand and sue) in the US District Court for the District of New Jersey. Both of them go by the same name, Baseprotect UG, Ltd. v. John Does 1-X (Case No. 2:11-cv-03621, Case No. 2:11-cv-02021, and Case No. 2:10-cv-06806 respectively). The deceptive part is that the “Does 1-X” title appears to suggest that there are just a few defendants, so the case is hoped to stay under the radar. Nope. In one case, I believe there are over 300+ John Doe defendants implicated, and in the other case, I believe there are over 1,500 John Doe defendants. Funny enough, I hear that Baseprotect does not even own the Polish copyrights they assert, and that they have merely questionably acquired a limited right to sue on these copyrights. This will be fun to watch.

So in short, with the demise of the famous DC cases (Maverick Entertainment, Call of the Wild, and now West Coast Productions, Inc.), there are a whole new generation of cases who hope to achieve exactly the same purpose as their predecessors. Make a profit before getting dismissed into oblivion.

“Maverick Entertainment Group” — Minor Case Update

As a follow-up to our previous post, there has been a minor development in the Maverick Entertainment Group v. Does case (Case No. 1:10-cv-00569 in the U.S. District Court for the District of Columbia). In short, the plaintiff attorneys have dismissed 44 defendants.

It appears that all of the dismissals were Verizon customers. Just as with the Call of the Wild dismissals, it appears as if the dismissal was a gesture on the part of the plaintiff attorneys to convince Judge Howell to allow the case to continue. It appears as if she has been moved by their act, as she has granted their request to keep the case alive.

This should be of no surprise to our readers. See here for the list of dismissed IP addresses.

DC Judges Look Toward Case Dismissals

[UPDATE: I just found out that Judge Howell wrote almost identical opinions in the Voltage Pictures, LLC v. Does 1-5,000 (1:10-cv-00873-BAH) case and the Call Of The Wild Movie, LLC v. Does 1-331 (1:10-cv-00455-BAH) case to the opinion she wrote in the Maverick Entertainment Group v. Does 1-2,115 case, as described below.]

No doubt there will be many questions about the new order in the now Maverick Entertainment Group v. Does 1-2,115 case (1:10-cv-00569-BAH) — same case, new number of defendants from the recent dismissals. In addition, there is new news in the West Coast Productions v. Does 1-5,829 case (1:10-cv-00057-CKK).

First, the Maverick Entertainment Group news. Today, Judge Howell mentioned in her order that no jurisdiction nor any joinder arguments will be entertained by the court until defendants are named in the case. This twenty-six page ruling is essentially the same as her previous ruling, but this time she explicitly said that once defendants are named, they will have these defenses, and chances are they will be meritorious. To use her words, “[t]he putative defendants’ argument that they are improperly joined may be meritorious should they be named as defendants in this action.” (emphasis added, p.11)

*Surprisingly missing from her opinion was the elephant in the room — the settlement demand letters.* Judge Howell goes on to say, “…the putative defendants are not subject to the plaintiff’s subpoenas, and therefore do not face any ‘annoyance, embarrassment, oppression, or undue burden or expense’ from the plaintiff’s discovery request (as per Fed. R. Civ. P. 26(c)(1)).” I cannot possibly believe Judge Howell does not know that the plaintiff attorneys are demanding settlements from defendants.

They say justice is blind, but not stupid. Perhaps a few of us attorneys and our clients should send Judge Howell a sampling of the settlement letters our clients have received over the past few months.

Next topic, the West Coast Productions case. In short, yesterday, Judge Colleen Kollar-Kotelly ordered that certain defendants should be named and served with process by May 16th, 2011 or they should be dismissed. My guess is that that they will dismiss these defendants so that the case will remain alive.

In addition, the judge ordered that by June 1st, 2011, the plaintiffs need to give the court an accounting as to which of the defendants have been dismissed; which of the John Does have been disclosed by the various ISPs, and which they are still waiting for; and, which John Does cannot be named because the ISPs no longer have their contact information (e.g., likely because they purged the records after six months according to each ISP’s IP retention policy).

Last, but not least [and this is the juicy part], the judge ordered that by June 20th, the plaintiffs should either name their defendants or dismiss them. She is doing this by way of FRCP Rule 4(m), which is the way Judge Shadur dismissed the CP Productions, Inc v. Does case in the US District Court for the Northern District of Illinois just a few months ago.

In short, it seems as if the DC court is getting tired of these cases. Judge Beryl Howell (the former copyright lobbyist) is sticking to her guns and not dismissing these cases and she is turning a blind eye to what the plaintiff attorneys are doing. Yet, possibly due to political pressure, she has softened her approach and has conceded that as soon as plaintiffs start naming defendants, she may start severing and dismissing them for lack of jurisdiction and/or improper joinder. [She also gave one strong evidentiary hint as to the weaknesses of these cases, but we will deal with that in another article if and when it becomes relevant.] Similarly, in this same court, Judge Colleen Kollar-Kotelly seems to also be tiring of these cases. Instead of playing chicken with the plaintiffs in a “don’t name or else” stance as Judge Howell has done, Judge Kollar-Kotelly seems to be going the route of Illinois Judge Shadur in using FRCP Rule 4(m) to dispose of the case.

This is all good news. I am happy to share it with you.

Thousands of John Doe Defendants Quietly Dismissed!

In a flick of the wrist and a slight of hand letter to the court, plaintiffs Dunlapp, Grubb, & Weaver (“DGW”) have possibly dismissed more accused John Doe defendants than ever before in the history of these bittorrent lawsuits. In a letter to the court titled a “Consolidated Status Report Pursuant To The Court’s Direction of 3/1/2011,” the plaintiff attorneys have dismissed* almost every defendant in almost every one of their mass copyright infringement lawsuits.

*I will explain below what I mean by dismissed, because I am not using the term in its conventional use. A more proper term for what they have done is that they have “dumped” these defendants rather than having them dismissed and released from the lawsuit.

The cases in which John Doe defendants have been affected are:

Call of the Wild Movie, LLC v. Does 1-1,062 (1:10-cv-004455-BAH)
Maverick Entertainment Group, Inc. v. Does 1-4,350 (1:10-cv-00569-BAH)
Voltage Pictures, LLC v. Does 1-5,000 (1:10-cv-00873-BAH), and
Donkeyball Movie, LLC v. Does 1-171 (1:10-cv-01520-BAH).

– NOTE: the “BAH” at the end of the case names is a recent change in the case names. When checking your case to determine whether this applies to you, just look at the 1:10-cv-“XXXXX” number and compare it to the case number you received from your ISP to determine whether this is your case.

This is a huge victory to our clients and those of the 10,000+ defendants that have been dismissed. No doubt we will be sending letters of congratulations to our clients in these cases in the coming days.

Now a little about these cases. These were what I like to call the initial “monster” cases, filed by DGW. They were the cases where thousands of John Doe defendants were sued, regardless of whether the courts had jurisdiction or not. These cases were also filed prior to the 6,000 Larry Flint Productions (LFP Internet Group, LLC) cases in the US District Court for the Northern District of Texas and other cases (e.g., Far Cry) were severed and dismissed for improperly joining defendants in one John Doe lawsuit. In addition, these cases were more famously known as “the Hurt Locker” case, “The Call of the Wild” case, among other more famous titles.

As you can read by the filing, the plaintiff attorneys have determined that there is nobody to name in these cases, and thus they have determined to dump the defendant pool as a whole and rethink their strategy.

If you are a former defendant in this case, firstly we congratulate you. This is a big victory. However, with every victory comes a bit of bitterness. Here, the plaintiffs have determined on their own to not proceed with the current pool of defendants, which means that they have a few years from the alleged date of infringement to sue these defendants individually or as smaller groups in their home states.

On top of this, this is not an explicit dismissal, as a voluntary dismissal of all defendants would be. Here, the plaintiff attorneys have simply mentioned that they are not going to “name” defendants (see our article here to understand what it means to be “named”). In addition, it is not an order of severance by the judge dismissing all defendants. It is simply a “heads up” letting the court know they won’t be going after the various defendants.

This is good, with three caveats:

Firstly. Their note only refers to defendants where the ISP has handed their subscriber information over to the plaintiff attorneys. Defendants whose information has not yet been shared (e.g., my more recent clients in the past few weeks) are likely not included in this declaration of theirs because the ISPs have not yet given over their information to the plaintiff attorneys.

Secondly. The plaintiff attorneys can still sue all of these defendants in the US District Courts for the district where the defendants live. (You can read more about the likelihood of them doing this in this article.)

Thirdly. These cases are still alive! After filing this memo, the plaintiff attorneys proceeded to file a memo why a number of motions to quash the subpoena should be denied. They also filed an opposition motion asking the judge to deny these motions to quash. So the cases themselves are still alive and for the time being, well.

In closing. To those John Doe defendants and the Cashman Law Firm, PLLC clients who have been sitting around for months, feel free to breathe easy for now. I will continue monitoring these cases for changes, but you should feel comfortable considering yourselves dismissed. The numbers are certainly on your side and while the risk of being sued individually is always present, the likelihood of hearing from the plaintiff attorneys ever again is very low.

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