Malibu Media v. Tashiro (INSD 13-cv-00205) is an eventful case (228 documents so far), one of the few “cases to watch” — mostly copyright shakedown lawsuits in which defendants didn’t succumb to extortionists’ threats and decided to hire competent attorneys to fight back. Some of these cases (and this case in particular) have all the prospects to end up in front of a jury in the first trial of this kind¹.
Mark J. Dismore
I wrote about this case in the past: a sad story in which morally dead attorneys “on behalf” of jaded pornographers tried to extort money from an Indiana resident by threatening to destroy her life. Ironically, the defendant Kelly Tashiro is a nurse — a profession dedicated to saving lives.
After the trolls realized that their case against Kelley is weak, they pointed their finger at her husband Charles, adding him as a defendant on 5/15/2014. Phillips began representing Charles too, and the newly added defendant also maintained his innocence since then. No evidence of XArt’s smut was ever found on the household hard drives by the Malibu’s expert.
As in virtually every case, when it turned out that the trolls had neither facts nor law to pound, they universally played the spoliation/perjury card, dangerously moving into the criminal law domain. Apparently, alleging criminal actions has more leverage in wrestling defendants into submission than does weaponizing the stigma attached to “barely legal” hardcore pornography.
On 1/29/2015 a big milestone — an evidence hearing — was set to happen. Not trusting his stooge Paul Nicoletti to handle the matters, Keith Lipscomb himself (with an associate) flew to Indianapolis.
On the eve of this hearing, seemingly sensing the gravity of the accusations of potentially criminal conduct, Charles Tashiro rather unexpectedly invoked the Fifth Amendment right to avoid testifying about certain matters. As a result, the hearing was essentially cancelled.
The trolls went postal. A motion to sanction both Charles Tashiro and Jonathan Phillips was filed shortly thereafter. Lipscomb and Co accused Phillips of orchestrating the “sabotage” of the hearing and wanted more than $15,000 from the defendant and his former counsel.
After the botched hearing, citing the conflict of interest, Phillips withdrew as Charles Tashiro’s attorney. Erin Russell appeared on behalf of Charles shortly after.
On 3/16/2015 Phillips responded, calmly explaining the rationale behind the events that pissed off the trolls so much.
Russell’s straightforward response resulted in a pure hysteria: it is hard to read 4/13/2015 Malibu’s reply in support without experiencing pain from rolling eyes exceedingly hard. As Raul put it in 140 characters or less,
I didn’t elaborate the details of the original Malibu’s Motion for Sanctions. In short, the trolls threw everything they could at the wall in a hope that something would stick. They demanded sanctions based on FRCP 37, 28 U.S.C. § 1927, the court’s inherent authority, FRCP 16, you name it…
We anticipated that the motion would be denied as meritless, but in today’s Report and Recommendations, Magistrate Dinsmore exceeded our hopes: he denied each and every claim, sometimes harshly (“This argument borders on the absurd”), and his thorough arguments didn’t leave a lint of hope for success of possible trolls’ objections to this R&R and/or Bar complaints against Phillips.
Motion for sanctions: the pot calls the kettle black
What would arrogant megalomaniac like Keith Lipscomb do when he is royally fucked up? He’d blame the opposing counsel! It happened so many times that it’s not funny anymore. Jonathan Phillips and Morgan Pietz were accused of being members of a “fanatical Internet hate group,” Gabriel Quearry tweeted the fact that XArt owners are filthy rich to “pirates,” and Jason Sweet was declared a “well known anti-copyright lawyer.” It seems that daring to interfere with a well-oiled extortion machine while being ethically and professionally superior to crooks from 2 South Biscayne penthouse will most definitely result in a couple of disparaging labels.
On 3/25 Lipscomb filed a motion for sanctions against the defense counsel. You have to read it to believe. Meriam-Webster must consider another example to illustrate the entry for the word Chutzpah. Essentially, the troll claims that it was Conlin’s fault that her innocent client was humiliated by the accusations of torrenting “barely legal” pornography. It was her fault because… she withheld some of the exculpatory evidence proving her client’s innocence — in a conspiracy to ramp up attorney fees:
Unfortunately for Plaintiff, undersigned, and this Court, Conlin’s scheme caused a tremendous amount of wasted effort, time, and money. Through this motion, Plaintiff seeks compensation for its wasted efforts. Specifically, Plaintiff requests an order holding Conlin liable for the costs and fees Plaintiff incurred since September 2014, at which time Roberto would have been dismissed but for Conlin’s deliberate withholding of exculpatory evidence.
Really? We all know how Lipscomb behaves when clear and unambiguous prove of innocence is presented:
Respectfully, you should counsel [the defendant] that when he loses, he will lose everything he owns and owe my clients hundreds of thousands of dollars. Mark these words, your client’s decision to reject a walk away will be the worst decision he will ever make.
So, Mr. Lipscomb and Ms. Kennedy, cut he bullshit, please.
Suspiciously, this motion was promptly publicized by Law 360, a news outlet popular among lawyers. It was published at 12:37 PM without giving Conlin a reasonable chance to express her opinion: a request for comment was sent at 11:44 am, when she was on a deposition. Yet Keith Lipscomb was readily available for a comment:
M. Keith Lipscomb of Lipscomb Eisenberg & Baker PL, an attorney for the company, told Law360 on Wednesday he couldn’t comment on the specific case, but that “Malibu Media and other copyright owners pursuing BitTorrent infringement claims have expressed growing frustration with the very small minority of the BitTorrent defense bar who are litigating in bad faith and unethically.”
You now… unlike those defense attorneys, Keith Lipscomb and his minions abused local law loopholes, forged signatures, threatened to ruin a life of a wrongly accused person (knowingly), targeted a 75 years old who suffers from cancer and has mentally disabled children, not to mention myriad of derailed lives — many over illegally produced obscene videos. Yet according to our “hero,” if you go to 2 South Biscayne Penthouse you won’t be able to close your eyes and spit without surely hitting a paragon of ethics.
Ironically, this motion was filed without any attempt to confer with Conlin, in a clear violation of Rule 3.01(g), and as such I think it doesn’t have any chance of being granted.
Judge agrees that trolls’ demands are overboard, grants protective order
Now, good news. As I reported a month ago, Cynthia Conlin and Brad Partick filed a motion for a protective order against a patently overboard request to access defendant’s parents’ electronic devices. Today this motion was granted, which means that the judge ultimately agreed that Lipscomb’s arrogant belief that he is entitled to rudely intrude citizen’s privacy at will is a delusion.
As set forth in the Motion and discussed at the hearing, neither Federal Rule of Civil Procedure 34 nor governing Eleventh Circuit authority permit unrestricted access to a party’s database compilations and/or computer hard drives.
Over the next 10 days I will be on a vacation and most likely won’t be prompt in posting updates.
On 3/26/2015 Conlin withdrew the defendant’s Answer to Amended Complaint and Counterclaims. Here is why: she seemingly realized that while in the new complaint Lipscomb, per judge’s order, formally added Angel Roldan as a defendant, he de factosubstituted his son, as the entire complaints doesn’t mention Roberto at all (except in the caption).
[…] although Plaintiff created the guise of maintaining Roberto Roldan as a Defendant by keeping him in the caption, it effectively dropped him as a party — which is what the Court explicitly told Plaintiff to not do. This Court expressly had ordered: “[T]he Court will not permit Plaintiff to drop Roberto Roldan as a party to this action.” According to a reading of the second amended complaint, as well as the 11th Circuit jurisprudence as shown in Welch and Lundgren, Plaintiff did exactly what the court ordered it to not do. In other words, it violated the court’s order. As the second amended complaint speaks for itself, clear and convincing evidence is shown.
Conlin asks to strike the second amended complaint and enter a final judgment in favor of Roberto, thus declaring him a prevailing party: a necessary condition of eligibility to attorney fees.
Yesterday Cynthia Conlin responded to Lipscomb/Kennedy/Shatz’s motion for sanctions. Unlike the hysterical Malibu’s missive, this response is level-headed, argumentative and worth reading in full, so rather than re-telling it and pulling out blockquotes, I embed it below:
Malibu Media v. John Doe (OHSD 14-cv-00493) is one of the cases I list on the “Cases to watch” page. A mere fact that the defendant is represented by Jason Sweet means that it is worth attentively watching how this case progresses.
I wrote about this lawsuit half a year ago. That post was mainly about the defendant’s argument that the plaintiff didn’t need to know the Doe’s identity because his/her attorney would happily accept the service. The motion exchange revealed that Malibu’s local Yousef Faroniya is merely a stooge who files shakedown lawsuits and forwards email to/from the troll center in Miami. Not surprisingly, he avoids talking to the opposite party’s attorneys at all costs; hence I named the post “Copyright troll Yousef Faroniya and his telephonophobia.”
Normally I would edit the post to append a new information, but because at least three major events happened since my last update, a new article is appropriate. These events are:
the judge’s order denying the defendant’s motion to quash, and striking parts of the plaintiff’s complaint;
the defense’s motion to dismiss for failure to timely serve;
the plaintiff’s violation of the court’s order and the resulting motion to show cause.
The judge denies the motion to quash yet expresses concerns
US Federal Judge
Unfortunately, Judge Timothy Black was not persuaded by Sweet’s argument and on 1/21/2015 ruled that the plaintiff is entitled to know the defendant’s identity. Nonetheless, while the judge didn’t explicitly order not to identify the defendant publicly at that time, the tone of the order suggested the assumption that the defendant would proceed pseudonymously.
Denying the motion to quash didn’t mean that Judge Black was happy with the plaintiff’s conduct. The following paragraphs from the complaint piqued his attention:
25. IPP’s software also logged Defendant’s IP address being used to distribute third party files through BitTorrent. This evidence indicates that Defendant engaged in BitTorrent transactions associated with 2732 files between 06/23/2013 and 05/13/2014. Collectively, this evidence is referred as the “Additional Evidence”.
26. Plaintiff has the Additional Evidence on a document and can produce it.
27. The Additional Evidence demonstrates that Defendant is a persistent BitTorrent user.
28. Many of the titles to the third party works may also be relevant to proving Defendant is the infringer because they correlate to the Defendant’s hobbies, profession, or other interests.
Those who follow these cases remember that Malibu Media and its attorney Mary K. Schulz was sanctionedtwice in Wisconsin for filing an infamous irrelevant and scandalous “exhibit C” — the list of filenames, many of which are embarrassing, purportedly shared from the defendant’s IP address. The judge thought that the above paragraphs from the complaint are nothing but a concealed “Exhibit C,” so he sua sponte ordered to strike this travesty:
Finally, the Court sua sponte raises what appears to be a remnant of one of Plaintiff’s particularly controversial litigation practices. Plaintiff’s complaint makes the seemingly off-hand allegation that IPP International UG logged Defendant’s IP address distributing 2,732 third-party files through BitTorrent. Plaintiff euphemistically describes this as “additional evidence” that Defendant is a persistent BitTorrent user and that “[m]any of the titles to the third party works may also be relevant to proving Defendant is the infringer because they correlate to the Defendant’s hobbies, profession, or other interests.” Plaintiff advises that it has this “additional evidence” on a separate document and gratuitously offers to produce it upon request.
Plaintiff presumably did not attach this document to its complaint because its lawyers have been sanctioned for the same. This attachment, the sequentially numbered Exhibit C, “consistently includes far more disturbing lewd, unusual and unredacted titles of pornographic films allegedly downloaded by the defendant than those belonging to plaintiff.” Courts concluded that the sole purpose of this exhibit was to “harass and intimidate defendants into early settlements by use of the salacious nature of others’ materials, rather than the merit of its own copyright claims.”
Although Plaintiff did not attach Exhibit C to its complaint, references to its existence and thinly-veiled threats of its production demonstrate that “these cases are fraught with circumstances that could embarrass the putative defendant should they become public and strongly influence his or her decision to settle even a meritless suit just to make the case go away before being publicly associated with their client’s film.” The alleged infringement of third-party copyrights is “immaterial to the allegations in the complaint.” Further, “the exhibit is merely a list of filenames, and it likely constitutes ‘immaterial, impertinent, or scandalous matter’ that should be stricken from the complaint.”
Accordingly, the Court STRIKES paragraphs 25-28 from the complaint.
Service games and motion to dismiss for failure to serve
The judge’s order also gave the plaintiff additional 38 days to serve the defendant.
The troll got a hold on the defendant’s identity on 2/2/2015. A reasonable bystander would think that Malibu would rush to serve, right? Wrong. The defendant was not served by the 2/28/2015 deadline. Why? Maybe because Lipscomb’s back office is not that good with the logistics, maybe because the trolls are spoiled by the majority of gullible judges who rubberstamp extensions without asking questions, or maybe because Lipscomb was scared of the prospect of the defendant answering the complaint, which would close the backdoor of the voluntary dismissal cut-and-run.
Moreover, after an email sent to the defense attorney strategically on Friday night before the deadline, the troll had an audacity to ask the judge for another extension.
Note that this motion lists seven other Malibu cases from this district in which the deadlines to serve passed.
What judge immediately did is encouraging: not only did he sua sponte expedite the briefing of this motion, setting a tight schedule (troll’s memorandum contra due by 3/18/2015; defense’s reply memorandum — by 3/23/2015), he also issued an order to show cause in one of other Malibu cases assigned to him, in which the defendants were not served past deadline.
The troll reveals the defendant’s name and address in violation of the judge’s order
Two days after the defendant’s motion to dismiss, on 3/13/2015, Malibu filed an amended complaint, and the exhibits, purposefully or not, displayed the defendant’s name and address, which was a clear violation of the 2/26/2015 judge’s order granting plaintiff’s motion to file the amended complaint and summons:
[…]The Clerk is DIRECTED to issue the summons under seal. The Court establishes the following procedure to balance Defendant’s privacy interests with the presumption of open judicial proceedings. Simultaneously with filing its proposed summons under seal, Plaintiff shall also file a Reference List and an amended complaint. The Reference List, which shall be filed under seal, must contain Defendant’s name and any other identifying information that Plaintiff deems necessary to the prosecution of its case, as well as an appropriate identifier that uniquely corresponds to each item listed. See Fed. R. Civ. P. 5.2(g). The amended complaint and all subsequent filings shall be publicly filed and must refer to Defendant only as John Doe and use the identifier provided in the Reference List for other identifying information. The Court reaffirms the other directives set forth in the 1/21/15 Order. (Doc. 20 ).
In his motion, Jason Sweet claimed that what happened was not a mistake, but a deliberate premeditated action:
On March 13, 2015, Plaintiff, in violation of the Court’s repeated Orders, filed an unredacted summons and reference list with John Doe’s name and address plainly visible. See Docs. 24 & 25. By choosing to file these documents at 8:00 PM on a Friday evening, Plaintiff intentionally chose a time when it would be difficult to correct, and the embarrassment alone might cause John Doe to seek a non-trial disposition just to end the matter. More so, the documents are dated March 12, 2015, further compounding the inference that Plaintiff intentionally waited until Friday evening to file them. Nor is this the first time Plaintiff has indicated a willingness to employ this tactic against Does who refuse to settle.
To substantiate his claims, Sweet listed three other Lipscomb’s cases, in which the defendants’ identities were “mistakenly” publicized.
Judge Black didn’t procrastinate, and today he issued an order to show cause why the troll shouldn’t be sanctioned for a blatant violation of the court’s order:
Three months ago I wrote about a class action lawsuit against a copyright shakedown company Rightscorp: this case was filed by attorney Morgan Pietz in California. This week Rightscorp, which has been hopelessly struggling to save its floor-hitting stock from being delisted from NASDAQ, was hit with yet another lawsuit, this time in Georgia (Melissa Brown and Ben Jenkins v. Righscorp, Inc. et al, GAMD 15-cv-00012).
The complaint is short and concentrates on a single deliberate violation of the Telephone Consumer Protection Act — harassing robocalling and messaging without the recipients’ consent. This is not a class action, and the plaintiffs seek an award of trebled statutory damages ($1,500 per each call). Depending on how many violations the court will find actionable, it may result in a hefty sum. In any case, if the plaintiffs prevail (which is most likely going to happen), this precedent has a potential of opening a floodgate of similar actions: in its latest press release (1/22/2015) the troll claimed that it “closed over 170,000” cases of copyright infringement.” How many of these “closures” are the result of unlawful telephone harassment? Just imagine if every robocall recipient decides that he/she wants a small piece of the Rightscorp’s flesh!
There is one thing that evaded my attention. I tweeted, making fun of the email quoted in the complaint:
Teresa Murphy made an important observation, the point I missed: she noticed that Rightscorp essentially admitted that it records harassing phone calls, which potentially can spell a lot of trouble for the troll (especially in the class action lawsuit mentioned above):
Also, I’m not sure if the quoted email is enough to establish that the recipient agreed that the solicited phone conversation would be recorded (if no consent was later given during the call itself). California is a so-called two-party state, and the recording of a phone conversation without consent may result in penalties:
632. (a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
…a proud look, a lying tongue, and hands that shed innocent blood…
Déjà vu all over again
Remember how copyright troll M. Keith Lipscomb, after finding out beyond any reasonable and unreasonable doubt that a defendant in a Malibu Media Bittorent infringement case is absolutely innocent, threatened to ruin his life nonetheless? Today we witness a painfully similar scenario: after the defendant in Malibu Media v. Roberto Roldan (FLMD 13-cv-03007) filed an alibi-grade proof that he couldn’t have been an infringer, Lipscomb & Co doubled down in a futile attempt to save face and avoid paying attorney fees.
This case was conceived on 11/27/2013. In the complaint, Malibu claimed the infringement of 40 XArt’s hardcore porn flicks¹. After Brighthouse sold its subscriber’ identity to the troll, Lipscomb decided to name not the subscriber, but his son. Why? Because he is a young male and because he liked some popular music and movies on Facebook — the titles that were allegedly shared using the IP address in question. In addition, the LexisNexis’s Accurint database [incorrectly] listed the defendant as a tenant in his parents’ house at the dates the alleged infringement was recorded².
In numerous Bittorent cases defense attorneys and judges questioned the trolls’ practice to cavalierly name subscribers or their family members as defendants without the diligence required by the Rule 11 of the F.R.C.P. I do not debate that in many instances trolls’ assumptions are correct; yet the lack of candor inevitably results in mistakes (just like in this case), and given the sheer amount of the shakedown cases being filed today, this is not an isolated incident.
On 8/15/2014 defendant’s attorney, Cynthia Conlin, filed the answer to the complaint. The answer contained 19 affirmative defenses, all of them strong; the majority of these arguments have been discussed on this site in one form or another. Yet for the purpose of this story I’ll concentrate on the following one:
Defendant has not infringed Plaintiff’s work as alleged in Plaintiff’s complaint, nor has Defendant even attempted to download Plaintiff’s work. Defendant is not the account holder associated with the I.P. address, nor does he live at the address associated with the I.P. address.
We’ll get back to this statement shortly.
This case was nearly dormant till January, when the defendant filed a bombshell motion for summary judgment on 1/19/2015, presenting tons of evidence that he couldn’t use his parents’ network at the times the alleged file-sharing was initiated:
As you can see, the proof of the defendant not being involved in sharing XArt’s smut is overwhelming and conforms not only to the relaxed “preponderance of evidence” civil standard, but to a much more stringent “beyond the reasonable doubt.”
The troll doubles down
So what did Lipscomb do? You’d expect a voluntary dismissal of this unwinnable case with prejudice — in order to acknowledge the mistake and move to shaking down the next victim. Wishful thinking! Just like in Pelizzo, Lipscomb (or, more precisely, his hubris) doubles down and files an opposition where he… accuses the defendant and his counsel of “ambushing” the troll with the proof of innocence:
Plaintiff Did Not Know Defendant Resided in Tampa Until Defendant Produced Discovery Documents — Months After the Lawsuit Commenced
Plaintiff cannot understand why Defendant would wait so long, and allow a lawsuit to proceed for months, if he was innocent and could have ended it against him nearly a year ago. Defendant must have been aware of Plaintiff’s intention to name him in the lawsuit when Plaintiff tried to serve him at his parents’ house in April.
As I stated above, in his answer the defendant explicitly stated that he did not live at the address, and it was not the only time this information was communicated to the plaintiff. So the statement that “Plaintiff did not know…” is dishonest, to put it mildly.
A copyright shakedown outfit lead by M. Keith Lipscomb and his German counterparts recently filed 99 Bittorent cases “on behalf” of Good Man Productions, Inc. Those lawsuits were filed in eight districts in November-December 2014, and the plaintiff alleged infringement of a direct-to-DVD movie Good Man featuring Steven Seagal:
On 1/14/2015 it came to our attention that querying Good Man Productions, Inc. information on the web portal of California Secretary of State revealed that this entity was dissolved. As soon as I reported it, the company suddenly re-appeared, albeit with a different entity number:
Naturally, we were skeptical about the fact that registering a new corporation with the same name would solve a potentially fatal problem. So I postponed further investigations pending the Certificate of Dissolution request. Now I have it (thanks to a community member who purchased a copy):
Phillip B. Goldfine,
a man who can shed some
light on the GMP dissolution
So, Good Man Productions, Inc., despite being a plaintiff in 99 cases, was voluntarily dissolved on 12/22/2014. Note that Jordan Rushie filed corporate disclosure statements in all “his” cases around that time, in one instance — two days after the dissolution.
If not for us publicizing this finding, the lawsuits would likely continue with a ghost plaintiff and its ghostly standing. Re-registration on 1/15/2015 was meant to mend the situation. But did it? In a doubt, I posted a question on Avvo:
Can a dissolved copyright holder corporation continue litigating as a plaintiff in infringement cases?
A CA corporation filed dozens of copyright infringement lawsuits in Nov-Dec 2014. On 12/22/2014 it was voluntarily dissolved. Nonetheless, the cases continue, and the courts were not notified.
Are any laws or regulations broken here?
After those who actually steer the litigation made aware of publicity in this matter, they re-registered this corporation on 1/16/2015. The name and the agent remained the same, yet the entity number is different.
So the second question: did this move “cure” the issue? Is it a matter of interest for the tax authorities?
One of the answers from an experienced business attorney from California, Frank Chen, confirmed what we suspected (emphasis is mine):
Nope. I assume the corporation was voluntarily dissolved (as opposed to being suspended or involuntarily dissolved through a court decree). A suspended corporation can be revived by paying back taxes, penalties and interest, and filing back tax returns. However, a dissolved corporation cannot be revived. A dissolved corporation would no longer have standing to pursue a lawsuit. Re-registration creates a new corporation, but even if the name and agent for service of process are the same, the entity is not the same entity which was the plaintiff in the lawsuit. The move does not “cure” the issue.
How should we call a corporation that can’t be revived but nonetheless walks around? A zombie troll I guess…
Some of the Good Man cases were already settled. Is it a rhetorical question to ask where the money went?
While I think that defense attorneys should try to leverage this information, it is far from certain that the lawsuits will be killed. Witnessing how much leeway US judges provide to attorneys (including copyright blackmailers), I’m pessimistic about any impact this apparent fraud will have on these and similar cases. The plaintiff was voluntarily dissolved a month after filing a blizzard of lawsuits? Oops, your Honor, here is a brand new corporation; I hope you won’t look into the details…
The travesty is that defendants don’t enjoy this kind of lenience from trolls. If Mr. Lipscomb was sincere in his laments that his goal is to stop piracy, he would kindly ask first instead of demanding arm and leg from hapless file-sharers and innocents alike. A warning can go a long way: for example, according to the Canadian ISPs’ statistics, 89% stop infringing activity after the first warning. But such warnings would actually help reducing piracy — an outcome hardy desired by the drivers and passengers of the Bittorent shakedown gravy train.
It all boils down to evidence. If there is no evidence whatsoever, an attentive and diligent judge won’t allow a case assigned to him to linger – he will rule summarily in defendant’s favor. That’s exactly what happened today. An experienced cardsharper Malibu Media (M. Keith Lipscomb) didn’t convince the judge that the proof of infringement (or, more precisely, the lack thereof) elevates to a necessary level of controversy that requires a jury trial.
The most hilarious part is that the defendant wasn’t even represented — he fought pro se instead. This tells volumes about the quality of Malibu’s “investigation” and “proof.” What we witness is a bluff on a massive scale, nothing more.
This is a relatively new case, filed by a copyright troll Christopher Fiore (or to be precise, by the Miami’s troll center using Fiore’s ECF login) on 2/28/2014 — Malibu Media v. John Doe (PAED 14-cv-01280). The defendant decided to fight rather than to pay up: on 4/3 he filed a motion to dismiss the action and quash the subpoena, which was denied on 5/19. As it happens in these shakedown cases, trolls obtained the Doe’s identity and started pressuring him to settle outside of the court: well-oiled extortion machinery in action, nothing new.
The Rule 4(m)’s 120-day time window to serve the defendant was about to expire three weeks after Comcast sold out its customer’s identity to the troll, so on the last day (6/30/2014) the troll moved for an extension in order to have more time to apply pressure. That extension was granted on 7/9, setting 7/30 as a new service deadline. Business as usual: the majority of judges rubber-stamp those extension motions without reading, and they do it again and again.
(m) We find that Malibu’s failure to serve within the time we specified was not reasonable because it knew the defendant’s identity for three weeks before the expiration of the Rule 4(m) period and offers no reason for its failure to serve him, and accordingly we find that Malibu has not shown good cause;
(n) However, we will exercise our discretion under McCurdy and grant Malibu a last extension to August 11, 2014 to serve the defendant, after which this matter will be dismissed without prejudice;
So the defendant was served, and he answered the complaint on 9/2/2014, denying any wrongdoing.
Because of this judge’s intolerance to frivolous delays, this case progressed rather quickly: the defendant submitted his hard drives to Malibu’s “expert” Patrick Paige, who searched and… found nothing. Well, he found some evidence of Bittorent activity from 2010 and a file with the name “Angelica – Good Night Kiss,” which is the name of one of XArt’s hardcore porn flicks. Paige didn’t specify that this file contained the entire movie or even a part. Do you believe that if it was the case, the trolls wouldn’t shout about it? Me neither. This file certainly wasn’t a media file (or a piece) — as the defendant explained later, it might have been a Google cache of a search resulted from a research after the defendant was hit with the lawsuit.
Also, there was an evidence of USB drives connected to defendant’s computers, and those drives were not offered for inspection. Of course the trolls cried “spoliation!” This hysterical accusation didn’t have any effect on the judge, as we will soon see. The defendant himself didn’t oppose to supplying the portable drives — he didn’t think that he did something wrong at all: initially he was only asked for hard drives. He even offered the USB drives for inspection later.
So, having nothing in their hands, the trolls proceeded to pound the proverbial table — they subpoenaed Comcast for the defendant’s data usage and possible DMCA notices. Such request is essentially an admission of the king’s nakedness: the only reason for requests like this is to continue the pressure in a hope that a troll’s victim will break down and pay the ransom. This is not a new strategy.
Scroll down, and you will see that the judge was not impressed either by the spoliation claims, or by the “circumstantial evidence” (an unethical tactic, for which Malibu was sanctioned in the past):
That Malibu Media chose not to ask for the missing storage devices after their existence became evident to its expert in no way bolsters its hollow claim. Nor are we impressed by the histrionics over alleged spoliation. Malibu Media, as the party seeking a spoliation sanction, bears the burden of proving there has been spoliation. […] Malibu Media makes much of what it called “additional evidence,” that is, indications that Doe used his computer to infringe others’ works between 2005 and 2010 — well before the period at issue in this case — and then sought to scrub the traces. Such efforts do nothing to establish Malibu Media’s claim as to its copyrighted works. It is well-established that the statute of limitations to bring claims under the Copyright Act is three years. 18 U.S.C. § 507(b). Therefore, the use and ownership of Doe’s computers before 2011 are irrelevant here as a matter of law. […]
On 12/16/2014 the defendant was deposed; he stayed strong and maintained his innocence.
So, finally, both Malibu and the defendant filed the motions for summary judgment (both under seal), and today Judge Dalzell granted the defendant’s one, denied the plaintiff’s. The Memorandum and Opinion is beautiful in its detailed debunking of plaintiff’s grossly unsubstantiated claims:
[…] Malibu Media cannot prevail here because it does not identify any evidence upon which a jury could reasonably find for it. Malibu Media has failed to raise a genuine issue of material fact as to its copyright claims. As is well-established, a fact is “material” if it “might affect the outcome of the suit under the governing law.” […] None of plaintiff’s responses in opposition is material in the absence of evidence that Doe downloaded or distributed any copyrighted Malibu Media works-a complete failure of proof concerning the essential element of its claim. Malibu Media has failed to show that there is a genuine issue for trial.
Plaintiff’s efforts to shift its burden of proof onto the defendant are unavailing. However troubling Doe’s evasive and shifting answers may be, none animate “disputes over facts that might affect the outcome of the suit” that would preclude summary judgment. […] We will therefore grant Doe’s pro se motion for summary judgment.
I decided to look at the other Malibu cases assigned to Judge Dalzell that were dismissed on July 2014 and later. It turned out that all the cases assigned to this judge are currently closed, and only two from the list were settled, the other defendants are apparently dismissed solely because the cases were assigned to an “inconvenient” judge: I have an impression that the coward trolls ran from this judge at the first opportunity. In my opinion, this is a blatant judge shopping. Correct me if I’m wrong:
Is it a fraud if an attorney files a motion for extension of time to serve a defendant two full days after the said defendant was already served? If it was done intentionally — definitely yes. I don’t believe it was the case, though, when a copyright troll Paul Nicoletti asked the court to extend the time to serve at 3:45 pm on Monday, 11/10/2014, while the defendant was already served at 11:45 am on 11/8/2014 (Malibu Media v. David Grant, INSD 14-cv-00740). He simply didn’t know, and didn’t bother to pick up the phone and check. No, it was not a fraud this time, but a total lack of diligence, an essential quality of an attorney. Well, this is hardly surprising: once a crook, always a crook. In addition, Nicoletti didn’t notify the court once the blooper was discovered, and after over a month passed since the service, a motion for default judgment was hastily filed; this motion mentions the actual service date.
Note that Nicoletti filed three motions for extension of time in this case. Trolls’ MO is to delay proceeds as much as possible (sometimes to the extent that would surprise Kafka), and if/when finally served, defendant doesn’t answer in 21 days, the troll immediately fileds for a default.
There is actually an explanation to what has happened in this particular case. When I started investigating, I found out that the process server didn’t communicate with Nicoletti at all: she took an order and reported the execution of the service (on November 10 at 2:35 pm) to an individual named Mike Thornton — Keith Lipscomb’s former non-attorney extortion officer who currently coordinates shakedown activities behind the scenes out of a Chicago Western suburb. Today Lipscomb is shy to mention the wild times of mass extortion lawsuits, including his abuse of Florida’s Pure Bill of Discovery (thanks to this loophole, he and John Steele made an obscene amount of money robbing US citizens). At that time Mike Thornton, falsely claiming that he was an attorney, intimidated and harassed people over the phone, wrestling them into paying ransoms (just like Prenda’s Mark Lutz).
Here is what people said about Mike Thornton in 2011:
Nasty little man… made me believe he was an attorney although he didn’t say that. Trying to strong arm me into paying over $2300 for downloading a movie… College Cock Hounds… I am 56 yrs old married for 20+ years. I don’t think so. Threatens me with litigation… $30,000.00.. My answer was to go ahead and sue me. I will see them in court. Would not give me his company name. He is or was a debt collector. He does not have attorneys in any other state than Florida. His name is Mike Thornton. He will intimate you if he can.
This guy subpoenaed my ISP for records from an attorney named Ryan Stevens in Arizona. He then called me and claimed he had proof that I had illegally downloaded porn and his clients were willing to settle out of court for $25.000. I told him I had done no such thing and wasn’t paying anything. He then got loud and abusive and said that he would take it to court and make this accusation public record if I didn’t settle. I told him #1 I did no such thing, #2 I am an disabled vet and he could not sue me and get anything. He then said he would turn the evidence over to the authorities and I would be prosecuted for a felony. He called me from 818-292-8194 in California. There were 250 IP addresses on the subpoena. Can anyone tell me what the real deal is with this guy, how this played out for you, and how I can shut this guy down?
Demanding money in exchange for not reporting a crime is the textbook definition of criminal blackmail, and still, Lipscomb & his gang has been clandestinely employing this sleazeball all the time. Another “negotiator” from the past, Elizabeth Jones, is also still employed, despite the trolls’ attempts to make an impression that she retired.
As for Nicoletti, this episode suggests that local trolls can’t even fart without the Troll Center permission: I heard stories about local attorneys not answering defense’s simplest questions for weeks. While it is obvious that local representatives are not really involved, if they sign their names on pleadings and motions (even without reading), it’s a fair game to call them unprofessional.
Mike Thornton deletes his email account
I’m actually not convinced that “Mike Thornton” is a real name, neither am I sure about “Anthony Palmer” (another “collector” from 2012) and “Elizabeth Jones.” All the three names are too common.
The email email@example.com was apparently deleted after the crooks discovered that I’m aware of its existence. That raises brows. I urge government investigators to subpoena this account while the information is retained by Google. Thornton’s IP address was 188.8.131.52 at 14:50 on 1/15/2015.
Thanks to Raul for discovering the discrepancy in the docket.
These dismissals were preceded by a motion to quash/dismiss/protective order filed by a defense attorney Bill Wohlsifer in Malibu Media v Doe (FLMD 14-cv-02341) on 1/14/2015. This motion (specifically the dismiss part) raises an interesting argument: the plaintiff cannot recover the statutory damages from individual members of the same Bittorent swarm in separate actions. As an example, the defendant notes a virtually identical Ohio case (same swarm, almost the same time).
The defendant argues that Malibu implicitly assumed swarm-wide joint and several liability, thus the plaintiff is estopped from demanding statutory damages individually:
MALIBU cannot have it both ways. Thus, if the Court were to find that Plaintiff sufficiently implied commonality in the same transaction or occurrence or joint and several liability (despite the omission of any such language), by pleading same swarm/hash, the remedy is inconsistent with the cause of action, fails to state a cause of action, and must be dismissed because the complaint seeks non-cumulative statutory damages per defendant.
In addition, Wohlsifer calls out Lipscomb’s predatory practice of collecting (via settlements) way more monies from named and unnamed defendants than the plaintiff is entitled to:
MALIBU seeks damages above that which would make it whole. Accordingly, Plaintiff may only seek damages per swarm, not per defendant. Moreover, it is not out of the realm of possibilities that Plaintiff may have already been made whole by alleged members of this swarm prior to bringing this action.
I like this trend and have big hopes that these ideas gain traction: if Malibu’s and other trolls’ multiple-ransom-for-one-work gravy train derails, it will severely neuter their extortion racket.
Alas, 14-cv-02341 and the other cases assigned to Judge Merryday were not dismissed based on the merits of the defendant’s motion, but because of the failure to timely serve defendants, as we will see below. As Bill Wohlsifer noted,
This is a bitter-sweet result as I am glad the case was dismissed so that the plaintiff takes nothing by way of its lawsuit and my client can return to life without the threat of a civil suit, but I was looking forward to a court ruling on the defensive motion I filed.
Order to show cause, followed by lame excuse, followed by dismissal
US Federal Judge
On the very same day (1/14/2015) Lipscomb filed a bunch of motions in this and other FLMD cases to extend time to serve defendants — motions very consistent with his tactics of frivolously delaying the proceeds. He argues that because his ex parte motion for discovery was granted only on 12/2/2014, ISP didn’t have time to cough up the subscriber’s information.
Judge Steven Merryday was not impressed: he noticed that the Rule 4m’s 120-day complaint-to-service period was about to expire and wanted to know why it took so long to move for discovery (around two months from the lawsuit inception). Thus, he orders to show cause in this and three other cases assigned to him:
Seventy-six days passed between the start of this action and the issuance of the plaintiff’s subpoena, and the plaintiff offers no reason for the delay. Accordingly, the plaintiff fails to offer sufficient information to determine whether the plaintiff pursued this action with due diligence.
Lipscomb responded on 1/22/2015 with a facepalm-inducing reasoning:
1. On September 12, 2014, the paralegal at undersigned’s office in charge of calendaring deadlines and filing motions went on maternity leave.
5. Because of the transition between office staff, Plaintiff’s Motion was unintentionally not filed with the complaint.
While reading Lipscomb’s lame excuse, I noticed the following (emphasis is mine):
Although Plaintiff’s Motion had been drafted and was ready for filing, the paralegal hired to replace the paralegal who left was still getting acquainted with this office’s practices and procedures and trying to familiarize herself with the firm’s expansive caseload and status of each case.
I think that this “explanation” runs afoul of the clear requirement of the Florida Rules of Professional Conduct:
A lawyer’s workload should be controlled so that each matter can be handled adequately.
Even if the paralegal story was indeed the reason for the delay, having the single point of failure like this was very unprofessional.
So, essentially Keith Lipscomb presents a violation of the Rules of Professional conduct as an excuse. Nice. Even the classic “dog ate my ex parte motion” explanation would be more appropriate.
There is more. Lipscomb claims that (emphasis is mine)
This deviation occurred in a very small number of cases and was caused by the staffing transition. Until the firm engaged in a periodic internal audit of the lawsuits which it filed and oversees, this mistake was not caught. As soon as it was noticed however remedial action was taken.
My bullshit-meter was triggered, so I checked the other dockets and discovered that in these four cases the discovery motion dates span 10/30/2014 to 11/14/2014 — more than two weeks. Assuming that the mistake “was caught” at the end of October, why did it take two weeks to take the “remedial action”?
Lipscomb and his gang continue to molest the courts and plunder the citizenry. And he does it pretty sloppily: any time I have a cursory look, I immediately uncover inconsistences and contradictions. It is heartwarming to see that at least some judges are allergic to Lipscomb’s BS while other courts blindly trust even the crookest “officers of the court.”
In every culture assaulting elderly and weak is the hallmark of evil. Michael Keith Lipscomb’s parents apparently failed him so miserably that he cannot tell right from wrong even in cases obvious to a kindergartener. Just like Prenda or Ira Siegel, Lipscomb, himself or through his goons, shook down elderly in the past, and he will continue doing so if not stopped.
In the instant case, JOHN DOE is seventy-four and a half (74-1/2) years old. […]
JOHN DOE lives with a spouse (hereafter “SPOUSE”) and two children (hereafter “CHILD 1” and “CHILD 2”). SPOUSE has late stages of Alzheimers and requires regular care of others. SPOUSE regularly has visitors to care for him/her. CHILD 1 is severally mentally retarded and therefore requires the care from others. CHILD 2 is severally disabled with mental disability. To make matters worse, JOHN DOE is in bad health due to a recent bout with cancer and the combination of his/her health and age makes him/her unable to care for the family. Because of JOHN DOE cannot provide adequate care for SPOUSE, CHILD 1, and CHILD 2, many other persons including medical professions, neighbors, cleaning professionals and their teenage children, and others regularly enter the home for lengthy periods of time and have access to the internet.
To add insult to injury, the “plaintiff,” one of the numerous Voltage Pictures’ shells, is a dissolved entity that most likely has no standing to sue (at very least, Lipscomb continues to defraud the courts by not notifying judges about this fatal problem). Any competent defense attorney will have no issue crushing such a joke of a lawsuit.
Wow. On 2/5/2015 Lipscomb replied to the defendant’s motion. He insists on dragging this family though a frivolous and fraudulent lawsuit. There must be a special place in hell for soulless scum like M. Keith Lipscomb: