Guardaley | X-Art
Judge Alsup benchslaps Malibu Media’s attorneys, kills 15 cases
In September 2015 fresh-out-of-school attorneys Brenna Erlbaum and Brian Heit took the dollar bill bait and subscribed to a reputation-killing job of doing errands for an international copyright shakedown cartel Guardaley / Lipscomb / Malibu Media. Heit and Erlbaum signed 313 complaints in California since then, 178 in the Northern District alone.
Although all the Malibu complaints and motions are obviously written in the Miami Troll Center, the kids have been super busy doing certain paralegal jobs: filing those documents, forwarding emails to and from defense counsel, and even traveling to San Francisco to play lawyers in Judge Alsup’s courtroom.
Those who watch Malibu Media / X-Art cases surely noticed a pattern: after filing a lawsuit, the cartel waits exactly one month before moving for ex-parte discovery, which I can’t explain: in general, the trolls delay proceedings whenever it is possible, which is understandable — when a FUD sword hangs over the defendant’s head, a delay translates into increased probability of settlement. Yet I don’t know what the trolls gain from delaying the initial discovery motions.
The batch of 15 lawsuits field on 12/27/2015 fell out of the pattern: apparently, the youngsters overlooked their usual motion date, being overwhelmed by sheer volume of filings (also, some defendants fought back, increasing the load).
With no disposable paralegals to blame, the trolls decided to simply file the motions on the last day of the 90-day Rule 4(m) period — 3/28/2016 — in a hope that the judge would not notice the sloppiness and bad faith. It was a long shot, since Judge Alsup is a meticulous judge. Moreover, he recently expressed skepticism regarding the merits of the Malibu Media money-making scheme:
[…] the mere fact that an individual is the subscriber for a particular IP address is weak evidence that he, rather than a third party, actually committed the alleged infringement even if the alleged infringement occurred habitually. Malibu Media faces significant hurdles when it comes to proving its case on the merits […]
Of course, Judge Alsup noticed, and he was not amused:
Plaintiff commenced this action on December 27, 2015. Pursuant to Rule 4(m), the deadline to effectuate service was March 28, 2016. Plaintiff filed its motion for leave to file a subpoena on defendant’s Internet service provider on March 28, meaning it would be impossible to serve the defendant before the Rule 4(m) deadline. Plaintiff offered no explanation for its delay in bringing this motion.
Plaintiff knew the Rule 4(m) deadline from the outset of the case. (Plainly, its decision to file this motion at the deadline was no accident.) Plaintiff will not be allowed to automatically extend the deadline to effectuate service indefinitely by seeking leave to serve a third party subpoena at the last possible minute. Counsel should have acted promptly and diligently, and going forward, plaintiff must seek leave to serve such subpoenas within the first thirty days after a case is filed.
The following cases have been dismissed on 4/4/2016:
- Malibu Media LLC v. JOHN DOE 174.62.72.81 (CAND 15-cv-06060)
- Malibu Media LLC v. JOHN DOE 24.130.143.240 (CAND 15-cv-06062)
- Malibu Media LLC v. John Doe 24.7.68.166 (CAND 15-cv-06063)
- Malibu Media LLC v. John Doe 50.131.102.121 (CAND 15-cv-06064)
- Malibu Media LLC v. JOHN DOE 50.161.122.134 (CAND 15-cv-06065)
- Malibu Media LLC v. JOHN DOE 50.185.2.24 (CAND 15-cv-06066)
- Malibu Media LLC v. JOHN DOE 67.161.3.254 (CAND 15-cv-06067)
- Malibu Media LLC v. JOHN DOE 67.161.9.143 (CAND 15-cv-06068)
- Malibu Media LLC v. JOHN DOE 67.174.205.112 (CAND 15-cv-06069)
- Malibu Media LLC v. JOHN DOE 67.188.177.237 (CAND 15-cv-06070)
- Malibu Media LLC v. JOHN DOE 67.188.44.155 (CAND 15-cv-06071)
- Malibu Media LLC v. JOHN DOE 69.181.9.151 (CAND 15-cv-06072)
- Malibu Media LLC v. John Doe 73.170.241.76 (CAND 15-cv-06073)
- Malibu Media LLC v. John Doe 73.202.24.12 (CAND 15-cv-06074)
- Malibu Media LLC v. JOHN DOE 98.234.204.238 (CAND 15-cv-06075)
Fight © Trolls 
The one month delay is puzzling. It is late and after a long day but the only reason I can think of is that local counsel is contractually bound to file a certain number of cases a month. Newer locals might get shittier deals requiring them to file than older locals and they soon get overwhelmed?
It is puzzling. My explanation, but it’s admittedly weak:
If the troll moved for discovery immediately, it would have plenty of time to subpoena the ISP, get the info, and serve the defendant within 120 (now 90) days. So, judges would be reluctant to extend time. A month-long delay creates a manufactured “good cause” for the extension, which is often more than 30 days: see, we didn’t have enough time to serve the defendant as his ISP responded only a week before the deadline!
True enough. I still think this industry is just filing more cases the they can compently handle so they invent brakes to avoid overload with the added bonus of your explanation.
As we are both well aware DELAY is the copyright troll’s largest weapon in its arsenal.
Well, wouldn’t that be the case with the first filing already?
@David,
I misunderstood you message the first time I read it. When I read it again and understood what you were saying I LMAO.
I said before I was of the opinion that the trolls antics were starting wear on Judge Alsup nerves, and thus not heeding the Judges wisdom they have pooched themselves and got fifteen cases dismissed and the rest of the cases under Alsup under the microscope.
It will be interesting to see how other Judges in CA see how Judge Alsup stance with the trolls resonates with the other Malibu cases in CA. Looks like CA could once again become toxic for Malibu once again.
One has to wonder how much knowledge judges in the various districts know about the decisions of judges Wright and Alsup (and whether it would be worthwhile filing an amicus brief in each court pointing out the other cases – given the massive workload most judges face it’s perfectly possible they’re unaware of those other cases)
15 down, 163 to go.
There must be some specific reason for the 30 day delay.
It’s consistent enough that it must come from a playbook.
Remember, the lawyers involved don’t have to smart or innovative. They just need to have learned the trick somewhere.
Much like a criminals get a quick education in jail — “steal just a few checks from the back, not the whole checkbook, so they don’t shut down the account” — immoral lawyers remember tricks that would be useless to the rest of the population.
I figured it out last night. I will apply it to my cases and see what happens. Stay tuned. Thank you for this website.
this is hilarious, i met brigham back in around 2006 when he was first getting together with this extremely rich girlfriend of his, who now seems to be the one driving all these lawsuits