Posts Tagged ‘joinder’

Judge Leo Sorokin
Magistrate Judge Leo Sorokin
(Massachusetts)

Thanks to Jason Sweet and Dan Booth for the hilarious news, a must-read order denying ex-parte discovery re-requested by copyright troll Marvin Cable in Patrick Collins, Inc. v. Does 1-79 (12-cv-10532-GAO), Discount Video Center, Inc. v. Does 1-29, et al. (12-cv-10805-NMG), and Patrick Collins, Inc. v. Does 1-36 (12-10758-GAO).

While two major posts are promised and overdue¹, I cannot help posting Magistrate Sorokin’s smackdown ruling dismantling Marvin Cable’s copyright troll cases: a good excuse is that it does not take a lot of my time, as the document is self-explanatory, easy and fun to read.

Read the embedded order below. A couple of teaser quotes:

The Plaintiffs’ proposal — i.e., that the Court permits the Plaintiffs to subpoena the names of the subscribers and that the Court then leave it to the Plaintiffs to figure out the rest pursuant to informal communications — is unacceptable.

The Plaintiffs’ lack of interest in actually litigating these cases as demonstrated by the history of this litigation also weighs against permitting ex parte discovery.

The course of action the Plaintiff has stated it intends to pursue also suggests an improper effort to engage in judge shopping and evidences a disregard for the Court’s limited public resources.

…a bad faith effort to harass the third-party subscriber…

…the Plaintiffs have repeatedly said one thing and done another.

The Plaintiffs’ counsel has also repeatedly said to the undersigned, and to other judicial officers of this Court, that he intends to litigate the claims he has brought. Yet to date, counsel has sued well in excess of one thousand Doe Defendants in this District, and as far as the Court is aware, he has never served a Complaint upon a single individual defendant.

 

So, essentially, Sorokin calls out Marvin Cable on his lies in virtually every paragraph of this 8-page document with a nearly 3-D hint sticking out of a flat document surface: GTFO of Massachusetts’ courts with your ill-conceived mass cases!

No matter how unbelievable it sounds, some people are so obtuse they can miss such a hint, and I have a bad feeling that our hapless troll may put on his John Adams costume once again — to entertain us and to anger judges. And it won’t end well.

Raul adds:

A great Order that will, hopefully, resonate across the country. As Booth & Sweet pointed out in their tweet earlier today, “Judge Sorokin gave Cable just enough rope to hang himself.” The Order reads like an indictment of Cable’s overreaching, lying and overall craven behavior before the court (this indictment applies to most if not all copyright trolls). The second act of this comedy will be if and when Prenda gets rolling now that the audience has been warmed up.

Media coverage
Update

12/18/2012

Judge Sorokin finally brought the hammer down on Marvin Cable today and recommended dismissing the above-mentioned cases without prejudice for failure to serve the defendants.

On 11/16 Marvin Cable replied to the Order to show cause featured in this post trying to keep these cases on life support.

Judge Sorokin was not impressed:

The Plaintiffs advance several reasons in support of a finding of good cause. None have merit. [...] The Plaintiffs have no one but themselves to blame for their inability to utilize information gleaned from the quashed subpoenas. The Plaintiffs engaged in the violations necessitating the Court’s remedy by telling third parties to whom Congress has accorded some measure of statutory privacy protection (i.e., the subscribers) that the Plaintiffs had sued them (the subscribers) for copyright infringement when the Plaintiffs had plainly not sued them. Moreover, the Court did not apply the 120-day rule at that time, but rather the Court gave the Plaintiffs another opportunity to propose a discovery plan tailored, as required under the law, toward identifying the identity of the persons the Plaintiffs chose to sue. As already explained, the Plaintiffs failed to advance this type of proposal.

…the difficulties, delays and rulings in this case all result from the Plaintiffs’ actions or inaction. The Court has repeatedly given the Plaintiffs ample opportunity to proceed properly with their cases. Since the Plaintiffs filed these cases, they have repeatedly failed to advance a plan compliant with the straightforward rules of procedure for limited ex parte discovery in order to learn the identities of the persons they have sued. In light of the opportunities they have had to make such a proposal, my previous rulings on these proposals and the Plaintiffs’ conduct of this litigation, I RECOMMEND that the Court find that the Plaintiffs have failed to establish good cause to extend the deadline, and that no other reason exists to exercise its discretion to permit an extension of the deadline. Accordingly, I RECOMMEND that the Court dismiss these cases pursuant to Fed. R. Civ. P. 4(m) for failure to effect timely service.

 


¹ In Colorado, Malibu Media v. Fantalis et al docket is overwhelmed with new extremely interesting activity;    In Illinois, John Steele reached new lows in the turd of a lawsuit Guava (Lightspeed) v. Skyler Case: the hearing that took place this past Monday, and recently filed fraudulent federal cases deserve detailed attention.

by AC

I thought that one of today’s comments deserved a separate post: it is well-written and the discussed document is indeed interesting.

Here’s an interesting case I’ve been following in Pennsylvania: Malibu Media, LLC v.John Does 1-22 (5:12-cv-03139).


Copyright troll Christopher Fiore

The Judge’s order was posted the other day, which severed all Does except one from the case, ordering Fiore to refile separately. That’s great news, but what was even more interesting about this case was how that came about. I haven’t seen it talked about much yet so here’s the overview:

Troll Fiore submitted an opposition on 7/20/2012, which triggered Judge Timothy J. Savage to issue the following order on 7/24/2012:

AND NOW, this 24th day of July, 2012, upon consideration of the Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss and/or Sever Complaint, it is ORDERED that no later than August 8, 2012, the plaintiff shall file a supplemental memorandum in which it shall cite each case within the Third Circuit holding contrary to the cases cited in the plaintiff’s memorandum.

And another order on 7/31/2012:

AND NOW, this 31st day of July, 2012, upon consideration of the Plaintiff’s Motion for Clarification (Document No. 12), it is ORDERED that the motion is GRANTED.

IT IS FURTHER ORDERED that the Order of July 24, 2012 refers to all BitTorrent copyright infringement cases and similar copyright infringement actions.

So essentially, Judge Savage asked Troll Fiore to argue against himself. Fiore submitted his memorandum on 8/8/2012 and cites at least a dozen cases where joinder was held improper, but he does his best to try and make it seem like really the issue is up in the air and it should fall on his side.

This is probably the funniest document I’ve ever read. You can just feel the cognitive dissonance on the pages. He’s very quick to point out why the cases he cites are wrong, but maybe he made the mistake of citing one of Savage’s own decisions that found joinder improper. Either way, Savage was not swayed, as we have seen, and Fiore failed. But this document will be very interesting for future motions to sever, where we can use the trolls own words against him.

By Raul

After getting admonished by Judge McMahon as explained in a recent post, copyright troll Mike Meier has an audacity to file another passel of lawsuits in the Southern District of New York. One of these lawsuits, Combat Zone, v. Does 1-34 (12-cv-4133) gets assigned to the troll’s nemesis, Judge McMahon (you know this will not end well for the troll). Meier moves for expedited discovery which Judge McMahon denies and she orders Meier to show cause, in light of her earlier Order in Digital Sins, why she should not sever Does 2-34 in this new lawsuit. Meier puts in his response and on 6/18 Judge McMahon hands down her Order severing Does 2-34. Excerpts:

First, Counsel argues that I should permit these defendants to be joined because I have been inconsistent on this issue…To which I say, with Justice Holmes, that a foolish consistency is the hobgoblin of little minds…

and

Second, plaintiff calls my attention to the fact that my colleagues Judges Forrest and Nathan have reached a different conclusion in “swarm” cases… I respectfully disagreed with my learned colleagues then and I continue to do so now, having concluded that other precedents were more persuasive in light of the Second Circuit’s holding-never overturned, despite advances in technology-that permissive joinder is not authorized when a large number of people use the same method to violate the law.

finally, and to get the full flavor you need to recall that Meier always seems to find a convenient excuse not to pursue Doe 1 after severance (in discussing the reliability of Meier’s geolocation technology),

In Digital Sin, I allowed plaintiff to proceed against Doe 1 (after severing the other 246 John Does), only to have plaintiff’s counsel file a discontinuance in short order; the cited ground was that plaintiff had learned that Doe1-his geolocation technology notwithstanding-was not a New York resident and was not amenable to suit in the Southern District of New york! I commend counsel for his candor in admitting the want of jurisdiction once it was uncovered, but he makes my point: the amenability of these defendants to suit in this district is suspect.

Enjoy the full order:

By the way, if you have any doubt that this is indeed a “Domino Effect,” judge McMahon is not the only SDNY judge who tells trolls to get out of the district.

Two weeks ago a New York (Eastern District) judge Gary Brown made it clear that copyright trolls are not welcome in his district. His epic ORR (Order and Report and Recommendation) still reverberates in the online news (see the incomplete list of publications about Brown’s ruling at the end of my other post).


Federal judge
Colleen McMahon

Following Brown’s recommendations, a district judge Colleen McMahon completely destroyed troll business in the Southern District of New York yesterday: she dismissed all Does but #1 from “My Little Panties Two” case (11-cv-08170-CM) brought from under the bridge by a weretroll Mike Meier on behalf of a pornographer Digital Sins. “I am second to none in my dismay at the theft of copyrighted material that occurs every day on the internet. However, there is a right way and a wrong way to litigate, and so far this way strikes me as the wrong way,” judge concluded, preempting any doubts about her position regarding these abusive lawsuits.

It would be outstanding news half a year ago, but these days, when trolls are on the run, such events fill all the honest people with joy, yet at the same time we don’t exclaim “wow!” anymore, and that’s wonderful.

What about Does #1?

We always express our joy and congratulate Does who are dismissed from improperly joined cases. But what about the hapless Does who were unlucky to find themselves at the top of the trolls’ lists? Scapegoats as they seem, in reality are not in any more danger: trolls rarely pursue them further; it is not in trolls’ interest to spend their time and effort on random individuals when there are so many new uneducated fresh victims to extort.

After a spectacular downfall in Maryland, where chief district judge Deborah Chasanow assigned most of mass bittorent MD cases to herself and subsequently cut them to single Doe suits, Mike Meier was expectedly quick to use any excuses to get rid of his not-lucrative-anymore cases. For example,

  • 12-cv-00023-RWT: Doe #1 is dismissed because he “used a mobile device as he was traveling through New York. Doe #1 resides outside the jurisdiction of this Court.”

…and, back to this SDNY case,

  • 11-cv-08170-CM: Doe #1 is dismissed because “Plaintiff has received a notice from ISP for Doe #1 (Verizon) that Doe #1 cannot be located.” Note that this dismissal notice comes the next day after McMahon killed the lawsuit.

Given the rich history of documented lies produces by trolls, I would take these claims with a grain of salt and double-check this information: if Mike Meier could be caught lying, it wouldn’t be a surprise, yet would undoubtedly be another nail in the coffin of copyright trolling.

Updates

5/17/2012
Rob Cashman posted a very interesting in-depth analysis of this ruling.

6/20/2012
Raul’s follow-up featuring the same actors: Mike Meier has an audacity to continue fishing in the Southern District of New York. Judge McMahon is not impressed