In the Southern District of Florida (FLSD) there has been a recent development, involving a lawsuit, in which both Judge Cecilia M. Altonaga and Judge Patricia A. Seitz have dismissed former Prenda Law INC associate’s (Joseph Perea) lawsuits — each against a single John Doe. This merits a little examination. Cutting through the legal mumbo jumbo, the judges dismissed the lawsuits because they did not buy Perea’s arrogant justifications for a sleazy litigation tactic.
Listening… what is this “sleazy litigation tactic”?
Basically, Perea, as an associate of Prenda and now allegedly as a solo practitioner, will file a troll lawsuit in the FLSD and immediately make a motion for expedited discovery to issue third party subpoenas to ISPs — so as to discover the personal identifying information of the targeted John Does to shake them down for settlements. Typically, the motion would be granted. However, here is the sleazy part: instead of having the subpoenas issued out of the presiding FLSD court, Perea has them issued by Prenda’s “founding partner” Paul Duffy out of the Nothern District of Illinois (ILND) or the District of Columbia (DCD).
It also bears some examination as to whether Duffy, who is not licensed to practice law in Florida, can issue subpoenas that pertain to a Florida federal lawsuit.
Confused? That is the point. Almost any pro se John Doe would be in a quandary and would naturally file a motion to quash/sever or issue a protective order in the FLSD, but he would then face this greasy argument in opposition by Perea:
Because Movant failed to bring his motion before the court that issued the subpoena, his motion should be denied.
That’s right: Perea is arguing that the court that authorized the subpoena in the first place (FLSD) has no authority to hear a challenge to that same subpoena — because it was issued out of another court (which the authorizing judge had no idea was going to occur).
What has been the reaction of Doe Defenders?
It is beyond the scope of this post to examine every individual example of a Doe Defender (an attorney who defends the Doe) taking issue with this shady litigation tactic and the steps they have taken to combat it. However, there are two examples that ought to be mentioned.
Doe Defender William R. Wohlsifer pointed to this tactic in the lawsuit Sunlust Pictures v. Does 1-120 (FLSD 12-cv-20920) arguing in support of a (successful) motion to quash the subpoena and dismiss the lawsuit. In her Omnibus Order of 7/23/2012 granting the motion, Judge Seitz wonders (in footnote 10):
Pursuant to FED. R. CIV. P. 45 (c)(1), parties have an obligation to “avoid imposing undue burden or expense on a person subject to the subpoena.” Additionally, FED. R. CIV. P. 1 requires that the parties proceed in a cost-efficient manner. It is unclear why the subpoenas were issued in another judicial district for information about Doe Defendants who allegedly reside in this district.
Mr. Wohhlsifer currently has a motion pending before Judge Seitz to have the plaintiff pay his attorneys’ fees because the defendant is a prevailing party. I hope he is as successful with this motion as he was with the motion to quash the subpoena and dismiss the complaint.
The second example of a Doe Defender taking issue with this sleazy litigation tactic is Kubs Lalchandani — in the lawsuit Bubblegum Productions v. Does 1-80 (FLSD 12-cv-20367), which resulted in Perea finding himself in a pot of hot water. This case is noteworthy as well, because it marks the first time that Judge Seitz (in footnote 9) questions the sleazy litigation tactic involving the third party subpoenas.
How did the single Doe lawsuit dismissals come about?
Perhaps discouraged by the severances granted in the Sunlust and Bubblegum lawsuits, or perhaps in furtherance of Prenda’s much ballyhooed “new” business model to bring suits against individual John Does, in late July and in August Perea began filing individual John Doe lawsuits on behalf of Prenda clients Ingenuity 13 and AF holdings. In AF holdings v. Doe (FLSD 12-cv-22147), Perea draws Judge Seitz, who on 8/8/2012 issues an Order denying his motion to take early discovery of the personal identifying information of the John Doe. Judge Seitz writes:
Paintiff has not provided an adequate justification as to why the Court should authorize it to issue a subpoena from the District of Columbia for information it can obtain from a subpoena issued from the Southern District of Florida, where this lawsuit is pending and where Plaintiff alleges the sole Defendant resides and/or committed the alleged infringing activity. The Court has an interest in managing the discovery it authorizes in a lawsuit it is presiding over. This management includes challenges to the subpoenas, which the Court cannot address if the subpoenas are issued elsewhere.
And (emphasis is mine):
Finally, Plaintiffs insistence on issuing a subpoena from the District of Columbia, a judicial forum that has no connection to this lawsuit, appears to be a litigation tactic. In another BitTorrent copyright infringement case pending before this Court, Plaintiff s counsel issued a subpoena from the U.S. District Court for the District of Columbia to obtain subscriber information from Comcast for Doe Defendants who allegedly reside and/or committed infringing activity in the Southern District of Florida. Bubble Gum Productions, LLC v. Does 1-80, Case No. 12-20367-C1V-SEITZ/SIMONTON, (DE 13-1). Thereafter, a number of the Doe Defendants tiled motions to sever or, in the alternative, to quash the subpoenas in this Court. On July 19, 2012, the Court issued an Order Granting Defendants’ Motions to Sever, Dismissing Claims Against Does 2-80 Without Prejudice, and Vacating the Portion of its Order Granting Early Discovery as to Does 2-80. Id. at (30). However, the Court could not quash the subpoenas as to Does 2-80 because they had been issued from the District of Columbia. See Fed. R. Civ. P. 45(c)(3)(A).Four days after issuance of the Court’s July 19, 2012 Order, Plaintiff tiled a Renewed Motion to Compel Compliance with Subpoena against Comcast in the District of Columbia, and failed to inform the D.C. Court in that Motion of this Court’s July 19, 2012 Order. BubbleGum Productions, LLC v. Comcast Cable Communications, LLC, Case No.12-00382-MC-HUVELLE, (DE 6). The D.C. Court was subsequently informed of this Court’s Order by Comcast and denied Plaintiff’s Motion and issued an Order to Show Cause because it viewed Plaintiff’s actions as an attempt to perpetuate a fraud upon the court.
Judge Seitz has since killed at least one other Perea’s single Doe lawsuit on this ground.
Subsequently, Perea files a lawsuit Ingenuity 13, LLC v. Doe (FLSD 12-cv-22756), draws Judge Altonaga and, again, files a motion to take early discovery. Judge Altonaga, like Judge Seitz, denies the motion with leave to refile, provided Perea supplies a justification for the questionable litigation tactic. On 8/23/2012 Perea refiles along with his “justifications” that ooze with hubris and sarcasm, and which space does not permit elaboration on. (I’ll leave that to the comments ) Judge Altonaga handed down an Order on 8/29/2012, denying the discovery because:
Plaintiff wholly fails to address why Comcast’s production or inspection cannot be made in the Southern District of Florida where John Doe resides, and therefore, why the subpoena cannot be issued in this judicial district.
Plaintiff does not specify what burden will be imposed on it should the subpoena issue from this district as opposed to the District of Columbia. Indeed, as Plaintiff has brought suit in this district, Plaintiff presumably is also available to receive discovery here.
It is my hope that denying troll motions to take early discovery on the basis of this dishonest litigation tactic spreads far and wide.
In closing, I wish to leave you with a music video by a band that elects to innovate in the Internet rather than sue it.