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Indiana attorney Paul Overhauser tells judge about the real ugly face of troll Nicoletti, requests a $500,000 bond to be posted

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Malibu Media v. Andrew Leightner et al (INSD 12-cv-00845) is a long and eventful lawsuit, one of 866 extortion cases filed by copyright troll Lipscomb’s outfit on behalf of Malibu Media¹. “Malibu Media” is an alternative name of a hardcore pornography producer X-Art owned by Brigham Field and Colette Pelissier. This “company,” Malibu Media, was created by Keith Lipscomb and jaded, soulless pornographers with a sole goal of robbing US citizens of their savings. This plaintiff is involved in a closely watched Bellwether trial in Pennsylvania.

In Indiana (as well as in Illinois and Michigan) Lipscomb’s local lackey is a Michigan attorney Paul Nicoletti, a sleazy opportunist with a very questionable past (explained below). Well, while I doubt that any attorney in the trolling business has a slightest idea what dignity is, Nicoletti is apparently on the very bottom of the list sorted by scumbaggery: only Prenda’s attorneys would proudly occupy the space below him.

It would be a Herculean task to overview the history of this case, which already amassed 194 documents. I want to concentrate only on this week’s events.

Judge: You cannot silence the opposing counsel, especially without presenting any evidence

Attorney Paul Overhouser represents two defendants in this case (out of eight defendants in Indiana Lipscomb’s cases). Apparently, earlier this week Paul communicated to Nicoletti that there would be a motion containing something incriminating him. Trying to prevent it, panicking Nicoletti requested an emergency phone conference in every case where Overhouser has been representing defendants:

Plaintiff has recently been informed by counsel for Defendants Chris Minor and Teresa Stephenson that he intends to file certain documents with the Court. The proposed documents are not relevant to this case. The documents are solely intended to embarrass undersigned. Defendant is threatening to file the offensive documents so that he may gain an unfair advantage in this litigation in violation of Fed. R. Civ. P. 11, 28 U.S.C. § 1927, and possibly one or more bar rules.

NicolettiMagistrate Judge
Mark J. Dismore

Well, Nicoletti forgot that this country is governed by the US Constitution, particularly the First Amendment, which preempts his silly “arguments.” Fortunately, Judge Mark Dinsmore² did not forget about it and denied this disingenuous request outright:

Plaintiff’s motion seeks a telephone conference to discuss certain material that may be filed by counsel for Defendant and to “enjoin Defendant from filing any papers that could be construed as embarrassing to undersigned counsel until after such hearing.” First, any sort of injunction on the filing of motions or other documents, particularly in the entirely abstract scenario presented by the Plaintiff by this motion, could well constitute an impermissible prior restraint upon Defendant’s free speech rights. However, more fundamentally, until demonstrated otherwise, the Court assumes that all counsel that appear before it are aware of and endeavor to comply with the relevant rules, decisions and statutes that govern their conduct before the Court. To grant Plaintiff’s motion would be to presume, in the absence of any evidence, Defendant’s counsel’s intent to not comply with such rules, decisions and statutes. The Court does and must expect such compliance and, if any counsel fails in that duty, can then exercise the full extent of its authority to punish such failure. But an invitation to presume and/or enjoin such non-compliance in the absence of any evidence thereof is an invitation the Court cannot accept. Accordingly, Plaintiff’s motion must be DENIED.

A powerful motion

I hope that you will agree with me that Nicoletti’s fear was not unfounded. Today the promised motion (to require plaintiff to post a bond) was filed by Overhouser.

The requested bond size may sound shocking: half a million dollars ($250,000 per defendant), but if you read along, you will understand why: Lipscomb’s main enemy is his narcissism (not much different from John Steele’s):

Malibu’s attorneys acknowledge that “the average cost of copyright litigation is 600K through trial,” and this should be a factor in resolving cases:

[From Lipscomb’s email to Brad Partick — I mentioned this disgusting email last year]

[…]Toward that end, you should also apprise your clients that the average cost of a copyright litigation is 600K through trial, according to AIPLA survey of fees in IP cases. This is a relatively simple case, but the fees will the nevertheless be substantial and indubitably in the 6 figures.

Arguing why such bond is necessary, Overhauser brings the most damning topics:

In addition to arguing that the bond is necessary in this particular lawsuit’s needs, Overhouser urges the court to grant the bond for an additional reason — to deter future extortionate activities by Lipscomb and other trolls:

In exercising its “wide” discretion, the Court should also consider that frivolous litigation brought by intellectual property “trolls” is a growing societal problem that burdens the judiciary.

[…]

Requiring a Plaintiff like Malibu to post a bond for possible defense costs early in the case will deter it and other Plaintiffs who attempt to “outmaneuver the legal system” and “plunder the citizenry.”

Concluding, Overhouser asks the court for something that would stop this type of lawsuit abuse in Indiana for good:

If this motion is granted, Defendants also invite the Court to consider entering Orders to Show Cause why Defendants [sic: should be Plaintiffs] should not be required to post bond in the other cases filed by Mr. Nicoletti in Indiana (Exhibit 11).

This motion is not long, well written and powerful. Enjoy:

One simply cannot cease being a crook
NicolettiCopyright troll Paul Nicoletti

There are 14 exhibits, the majority of which are rulings and pleading from other cases. The new one is #13 — a list of cases involving Paul Nicoletti, which also includes multiple sanctions levied against him plus other documents supporting the simple truth that Nicoletti desperately tried to hide from the world: this “attorney” is one of the sleaziest and most despicable human beings.

 


(Because Scribd incorrectly renders PDF highlights, I removed all the highlights in the embedded document: the original is here.)

Thanks to Raul for contributing to this article.

Followup

 


¹1,129 together with the second Lipscomb’s favorite pornographer Patrick Collins.

²Involvement of Judge Dinsmore is heartwarming. If you read this scheduling order from another case, you will understand why.

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Discussion

26 responses to ‘Indiana attorney Paul Overhauser tells judge about the real ugly face of troll Nicoletti, requests a $500,000 bond to be posted

  1. I’m not familiar with court standards to know how well exposing the opposing counsels’ history of misdeeds in other unrelated cases will go over with the judge but my gut feeling is not very well. From a popcorn standpoint I love seeing Nicoletti called out for having been a lying sleazeball long before he partnered with trolls but I think that could be a distraction from the great and cogent points Openhauser brought in from more recent and related cases.

    Even with that I think this is an outstanding filing. An awful lot of troll sleaze with the support of a lot of courts that didn’t stand for it in just a few pages.

    • I thought about it, but eventually let this concern go given Overhouser’s 30 year legal experience: I hope he is confident in what he is doing.

      Expect a fierce opposition from Nicoletti. Whatever is the outcome, the harm is done, the proverbial cat is out of bag.

    • And this is different than Exhibit C being used to show a pattern or history of infringing copyrights how?
      Other Judges have given far to much latitude to troll minions because they are lawyers, and would NEVER EVER do anything underhanded or to bring ill repute to the profession.

      If previous bad acts done by the firm of S|H had been entered into the record, many Judges would have been much more restrictive and taken a much dimmer view of actions undertaken, removing the doubt that it might have been done innocently. We have a large section of content on some of the worst of the worst that troll minions have done, but courts are unaware of these public facts.

      If a lawyer sent a letter to an innocent man demanding payment or they would just drive the costs up, a court should infer that they are not pursuing a valid claim and have used the court system to bludgeon a settlement out of someone simply because they could. For them to clearly state this intent should cast a shadow over all litigation handled by this firm, and the court should be consice in its orders and actions to remove chances for these types of actions to happen.

  2. Reading one of John Steele’s rants on one of the linked articles, it’s funny to see how in 2011 he claimed that he’s got a lot of employees, reading these blogs and websites trying to catch bachelors squirming in their mothers’ basements. And now, about two years later, his entire team of crack lawyers mumbles and writhes when asked about details on how their operation actually… operates. Perhaps more hilariously, his cheerleading team is reduced to trolling websites like this and Techdirt, because they don’t require signing up for accounts like Ars Technica.

    • I’ve seen a couple accounts defend Steele on Ars. Anyone can sign up, I did. They have been much more quiet lately as I think they are spending more time looking for unique readings of laws to save them rather than trying to spin the narrative.

      • Hm… I remember Steele and my row with him once, but defending? Please don’t waste your time searching for links if you don’t have them handy, it’s just my pure curiosity, and I don’t want to waste anyone’s time.

        • There were a couple brand new accounts who posted just as the ball got really rolling on Ars, they have been silent for a while.

  3. This is great. It shows what type of person Lipscomb considers a competent lawyer to represent him and clients, such as X-Art/Malibu Media. Other contract lawyers across the US will “benefit” from being associated with such an organization and personnel. The main benefit against Nicoletti with these documents is it shows the court that it should not give him the benefit of the doubt when considering his questionable actions. Having one such ruling against you isn’t good; multiple such ruling speaks volumes and the court will surely notice. Have fun with this one!

    DTD 🙂

  4. Reading through that enormous docket, Malibu has come away with 10 dismissals with prejudice (read: settlements) and two default judgements out of 29 Does. I downloaded one of the default orders, #187, which hasn’t shown up on RECAP for some reason but the bottom line is that Malibu was awarded $20,000 in damages and $2,000 in legal fees.

    Defendant was a Filipino renting “Apt.1” of an old single family home in a downscale neighborhood (median home sale price this year, $48,000.) The process server’s filing did not even have a description of the person served.

    Shysters with $150,000 law degrees using the bludgeon of the federal courts (which all of us pay billions for, while Lipscum weasels the token $350 per claim he’s supposed to pay down to 12 bucks) to demand five figure payments from someone who’s probably never had five figures in her life.

    I know they won’t collect here so it could be $2,000 or $2,000,000 but that doesn’t change that there’s a special place in hell for every one of these people. It has room for the judges who sign off on it too.

  5. One defendant was ordered to pay a $33,000 default for 15 infringments along with about $2,000. in attorneys fees. It’s recapped – 1:12-cv-00842-TWP-MJD.

    I wonder if this defendant even knows this is happening. Nicolletti has a history of not serving defendants and saying that he has. If you look at the Indiana comments history some people only know they were served because they were following the docket.

    • Many trolls have used the tried and true methods of failing to manage to serve an actual person. The problem is courts still function in the bubble where lawyers would never mislead a court, there are harsh penalties spelled out and yet they are never used when a failure is discovered. Far to often courts want to believe no lawyer would ever do it on purpose, and this blind trust is abused. After Prenda one would expect that courts might start actually considering these are not innocent mistakes.

    • One of the two defaults in that case, Helferich, lawyered up and responded to the court less than two weeks after the default. Helferich states in his affidavit at #67-2 that he was never served.

      The document claiming to be Helferich’s return of service, #36, is showing up as a duplicate of #33 which is for another defendant in the case but Helferich’s affidavit states his physical description so it would make sense that the actual document for his service is describing someone else.

      Again, my RECAP did not post the documents correctly. I will try reinstalling the plugin.

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