Guardaley | X-Art
Florida judge to Lipscomb: No good cause to allow early discovery
- Colorado (Jason Kotzker): 23
- DC and Maryland (Jon Hoppe): 48
- Florida (Keith Lipscomb): 32
- Illinois (Mary Schulz): 37
- Pennsylvania: (Christopher Fiore): 30
It is funny that in Lipscomb’s own backyard, Southern District of Florida, the scythe ran into a stone, and his attempt to obtain identifying information of an alleged infringer has failed: Judge Federico Moreno was apparently irritated when he denied Lipscomb’s ex-parte motion to leave to serve third party subpoenas prior to the Rule 26(f) conference (Malibu Media v. John Doe, FLSD 14-cv-20216).
Calling out Lipscomb for his lame lawyering (failure to cite any binding case law in support of early discovery), the judge concluded that
Plaintiff has not provided this Court with “good cause” to deviate from Rule 26(d).
Moreover (and heartwarming), Judge Moreno makes it clear that he is aware of Lipscomb’s industrial-scale litigation¹, and the judge cited Judge Wright’s famous order:
“The federal courts are not cogs in a plaintiff’s copyright-enforcement business model.” Malibu Media, LLC v. John Does 1-10, 2012 W L 5382304 at *4 (C.D.Cal. June 27, 2012). Plaintiff has filed what amounts to a boilerplate brief to support its motion. The arguments made in this brief do not persuade the Court to deviate from the normal application of Rule 26. Therefore, Plaintiffs Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference (D.E. No. 4), filed on January 27, 2014 is DENIED.
I’m not sure if Lipscomb will be able to file these half-assed cases in FLSD anymore after such a bold hint to get lost. From the district’s chief judge, no less. However… Mr. Lipscomb’s hubris and greed may prompt him to stubbornly continue his shakedown practice. Well, succumbing to those “virtues” played well for John Steele. Go ahead, Keith, dig deeper.
Related
- Torrent Defender blog: New filings from Malibu and a (small) ray of sunshine from the Sunshine State by Charles Thomas.
Updates
1/24/2014
This order was noted by a Doe Defender Paul Overhauser in Malibu Media v. John Doe (INSD 13-cv-01525 — I recently covered this case) as an additional authority for the Motion to Quash Subpoena.
4/4/2014
On 4/4/2014, following Judge Ungaro’s order that caused significant resonance in the media, Judge Moreno sua sponte issued an Order to Show Cause “why the Court should rely on geolocation services to establish the Defendant’s identity and location in this district, as well as why the Southern District of Florida is an appropriate venue for this case.” Response is due on April 14th.
¹ I love this phrase, which was introduced by Morgan Pietz.
Fight © Trolls 
Thanks to Raul, who discovered and recapped this fantastic order.
Thanks for giving this Order the attention it deserves. Regrettably the FL Doe Defenders have not actively fought one of these lawsuits in some time so hopefully this order will inspire them to do so.
While Lipscomb failed miserably in FLSD, he still rules over his orcs in other districts:
Very Funny!
Raul: I agree with your observation that Florida Doe Defendants are not visibly, actively defending these cases at this time. The demand for representation at my office has dropped down about 90% from 14 months ago. Thanks for posting this ruling from Florida’s Southern District
Any ideas what happened to Nicoletti? In 2011, 2012 and 2013 he must have filed more than 300 cases. More than half, he abandoned, maybe 30 who fought back with MTQ, he eventually gave up, he named some defendants, a few got default judgements, some settled but each bearing their own costs, he has a couple in Michigan going through prelim discovery etc.
What surprised me the most was there’s one case where a Doe hired a lawyer, filed MTQ, judge actually denied the MTQ and presumably name was released. Even then Nicoletti didn’t pursue this. Based on the MTQ, lawyer said Doe is a respected doctor in community and would never download porn. He just gave up.
Now he’s in battle in Indiana giving all sort of excuses per posts by DTD and FCT. Based on his past shenanigans, I would expect him to rank way up there with the other trolls in the other states. Maybe he has a fall out with Lipscomb? Based on various reports, Nicoletti has a habit of doing this in the past. Sued by his former partners in law. Various sanctions levied against him. Pursued by a former client who lost her home. Sued by a bank for fradulent closing of homes by MaryAnn and Nicoletti.
Still he has made out well IMO. If he has 50 settling Does with say 10 alleged downloads at $2250 per, he’s making out at 2250x10x50=$1.125M.
I don’t think local attorneys get more than 20-30% of settlement money, but still…
Also, absent in 2014:
Wisconsin: this one is understandable after both districts sanctioned Schulz
New Jersey: Cerillo — no idea why.
Would any of them risk such a lucrative gig if they knew the files were being uploaded arguably as fast as they are posted to subscription servers? From the same accounts? The downloaded files themselves must contain the user name or account number of the subscriber doing this. From what I am reporting, these professional upoloaders are spending millions of dollars a month in the expense of uploading Gigabit sized files every 2 minutes from very expensive subscription sites. This is epic. Like Gold Finger or something. Lol.
Unfortunately he is making it through the Eastern District of PA Federal Court like a greased pig as a result of the Bellwether clown show.
Here’s another question about Nicoletti. In some of his cases, he seem keen on bringing the suit to trial but after a few motions back and forth and may even appear Nicoletti has the upper hand based on motion rulings by the judge, the case was dismissed with prejudice. In some of the cases I looked at, this is the gist of the dismiss:
WHEREFORE, Plaintiff and Defendant [defendant name here] respectfully request that this Court enter an order dismissing with prejudice all Plaintiff’s and Defendant [defendant name here] claims against each other, with each party to bear its own attorneys’ fees and costs.
If it is a settlement with monies exchanging hand, wouldn’t be dismissal stipulate so? Why would Nicoletti dismiss with prejudice? So defendant is out probably 80hrs of lawyer time ($16k at $200/hr) and Nicoletti wasted his time as well as the courts and he moves on to another case?
Anyone?
Each case and defendant are similar and yet have different facts to them. It could come to a point where a deposition happens or discussion between parties discloses some information that make Plaintiff’s position very hard to win. Say a defense attorney strongly informs the Troll that the ISP subscriber (and family) did not do this, there are no systems with BT or the the movies on it, and they will be seeking to depose Collette, Brigham, and the IPP staff. Nicoletti/Lipscomb has to then weigh the benefit of moving forward – do they think they will find ANY evidence on the systems. NOTE: Lipscomb knows how easy it is to simply remove the offending system from the residence and they are screwed (or it never was in the residence) – he stated this in the closing arguments of the PA Bellwether trial.
The above cut/paste is likely a “walk-away” deal which benefits both side. Plaintiff doesn’t take a risk of losing a case and having to disclose internal case information that could impact other cases around the US. The defendant has the case dismissed and doesn’t have to deal with the stress and cost of moving forward. If it was a settlement with the defendant paying something, it might just say both parties have come to an arrangement and defendant should be dismissed with prejudice.
DTD 🙂