AF Holdings, LLC v. Does 1-1,140 — Dismissed, but according to the plaintiff’s plan.

On Friday I wrote a scathing review of the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) case dismissal, but I did not post it.  In short, congratulations to the Cashman Law Firm, PLLC clients (and all the others implicated in this case) who have been dismissed from the case.

The difficulty I am facing is that while being dismissed is the goal of any John Doe defendant in a bittorrent case, in my opinion, I am uncomfortable with the way the dismissal happened. 

As many of you know, there was new precedent set by Judge Facciola’s ruling in the West Coast Productions, Inc. v. Does 1-1,434 (Case No. 1:11-cv-00055) case, and as a result, Judge Reggie Walton gave the plaintiffs until March 9th, 2012 to start naming or dismissing defendants.  In short, instead of admitting improper jurisdiction, yet another D.C. judge opted to invoke the Federal Rules of Civil Procedure, Rule 4(m) which gives plaintiffs 120 days to either name or dismiss defendants.  Understanding that the Prenda Law Inc. plaintiff attorneys had no interest in continuing the lawsuit against individual Doe defendants, they dismissed the case.

Now while it is always nice when opposing counsel opts to kill a case rather than move forward against defendants, Prenda Law Inc.’s local counsel revealed more than he probably should have to the court.  In a move which probably angered Paul Duffy and his superiors, Tim Anderson wrote the following paragraph:

Plaintiff acknowledges the Court’s busy docket; Plaintiff is currently engaged in settlement negotiations with a substantial number of putative Doe Defendants.  Rather than prematurely initiate litigation against individuals who may ultimately wish to resolve Plaintiff’s claims via settlement — and thus needlessly burden the Court — Plaintiff believes that dismissing the claims against the remaining non-settling Doe Defendants in this action without prejudice in lieu of filing actions against non-settling individuals strikes a favorable balance between preserving Court resources and safeguarding its intellectual property rights.

In other words, “Court, we are dismissing the case so that you do not need to waste your time looking over us watching what we are doing.  We would prefer not to have you watch us anyway because you will force us to do something we don’t want to do (e.g., “name” defendants), which would make our extortion scheme much more costly to us and thus we wouldn’t be able to sustain our operation if we had to actually go after defendants.  So thanks to you, since we now have all the names we need from the ISPs of the putative Doe Defendants, we will continue to call and harass those who haven’t settled without having you worry about what we are doing.”

In short, I would have liked to see the judge issue an order indicating that since they have dismissed the case, they are no longer permitted to use the names they acquired from the subpoenas and collect settlements from putative defendants.  The legal system is not a tool to discover private information about internet subscribers only to dismiss the case and continue their extortion scheme offline.

For this reason, I suspect that you understand why I am not so happy with this case dismissal.  Getting your names only to dismiss the action was simply part of their plan all along.

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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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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.

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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West Coast Productions. No dismissal.

I cannot believe I am saying this, but the West Coast Productions v. Does 1-5,829 (1:11-cv-00057-CKK) case filed in the US District Court for the District of Columbia is still ALIVE.

In short, Judge Kollar-Kotelly has made no secret of the fact that she is beginning to tire of this case. In her most recent order yesterday, she wrote, “the Court shall not permit this case to languish on its docket indefinitely.” (p.3).

In addition, she has made no secret that she has every intention to enforce FRCP Rule 4(m) in order to dismiss this case if the plaintiffs do not name or dismiss defendants within her new deadlines. Following her scant 3-page ruling are eighteen (18) pages of IP addresses in large print belonging to John Doe Defendants who are now dismissed. Surprisingly, none of them belong to our clients.

What we can pull from this order are a whole new set of deadlines that the plaintiff attorneys must adhere to (or maybe we might see yet another extension in a few months).

In short, here is what “must” happen according to her current order:

By July 15th, plaintiffs must file a report with the court indicating who has been dismissed, who they are waiting to hear from, etc. This is nothing so exciting; no doubt the plaintiff attorneys will comply.

By July 29th, plaintiffs must name and serve defendants — and they must file proof with the court that they have complied by August 3rd. My guess is that nobody will be named and served, but a few defendants will be dismissed, and we will see yet another extension request early August.

NEW DEADLINE: BY AUGUST 15TH, 2011, PLAINTIFFS MUST NAME AND SERVE ALL OTHER DEFENDANTS OR ELSE THE CASE WILL BE DISMISSED [AGAIN].

In short, I am disappointed by this wimpy excuse for a ruling. If the judge had some spine she would have stuck to her hard deadline of “name or dismiss by June 30th, or else.” Giving in again and again as far as I am concerned is like telling a child “no, you cannot have that lolly pop,” and then giving it to them. What makes the plaintiff attorneys at Dunlap Grubb & Weaver, PLLC think that if they do not adhere to this deadline that the judge will not extend it yet again?

Maybe this is her plan. Pretend to be against the plaintiff attorneys, but continue to give them as much leeway as they need to collect the thousands-of-dollar extortion payments from each of the thousands of Doe Defendants while she screams about deadlines and court dockets, threatening that she is going to dismiss the case under FRCP Rule 4(m).

Okay, so now what. John Doe defendants who have spoken to me, your case is still alive. This means that the plaintiff attorneys will be contacting you, they will continue to be demanding settlement amounts from you, etc. etc. Their game is now well known.

Obviously it is a basic ethical rule that as soon as I give them notice that I am your attorney, all their calls and “solicitations” must stop. In addition, any correspondences must go through me. This allows me to act as a barrier between you and the plaintiff attorney so that you won’t say anything incriminating, and it allows me to interact with your opponents on your behalf. There are obviously other things I do as your attorney, but bottom line, your judge has given them carte blanche to do whatever they want until this new deadline.

In short, no dismissal.

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