A couple of back-and-forth arguments were filed in July and August 2013. One thing I want to note is Lipscomb’s explanation of his revolting conduct:
On March 21, 2013, in response to the walk-away offer, Defendant demanded $17,500 for attorneys’ fees. See Ex. N. Shocked by the clearly excessive fees and admittedly peeved, within a half hour, undersigned replied with two knee-jerk e-mails: (a) rejecting the demand and (b) indicating Plaintiff would pursue the case. Simultaneously, paralegals were instructed to propound discovery. Undersigned cooled quickly. And, at the mediation less than two weeks later, undersigned again advised Defendant that Malibu would be dismissing the case.
Well, if a knee-jerk reaction of a purported officer of the court is to threaten to ruin the life of a defendant, his license should be revoked immediately.
This report has two parts. In the first part, the judge recommends not to award fees to the defendant under the Copyright title (17 U.S.C. § 505). Judge dedicates 7 pages to analyzing the Fogerty factors and concludes that Lipscomb did not bring this lawsuit in bad faith. Sounds unbelievable, but copyright law is so screwed, it makes such Kafkaesque conclusions possible.
I read one attorney’s opinion suggesting that Magistrate’s analysis of Fogarty factors was wrong, and Patricia Seitz (a district judge in charge of this case) may rule differently. Let’s hope for that.
The second part of the R&R makes up for the first: it does not deal with copyright, but solely with Lipscomb’s disgusting behavior. Judge recommends awarding attorney fees under 28 U.S.C. § 1927 because
Plaintiff’s counsel had just offered to voluntarily dismiss the claim against Defendant when he sent the email threatening protracted, future litigation. That alone would have been sufficient to award sanctions, but Plaintiff’s counsel also asked defense counsel to inform his client that he would be penniless at the conclusion of this case while also owing Plaintiff hundreds of thousands of dollars. The litigation tactics of Plaintiff’s counsel amount to more than a lack of professional civility and reveals a pattern of behavior, albeit for a short period of time, that perpetuates “stereotyped caricatures of attorneys held by some members of the public.” Threatening continued, meritless litigation and financial ruin is the definition of bad faith.
The recommended amount is $6,815.50. Again, let’s hope that Judge Seitz (who has a history of smacking Lipscomb’s role model, Prenda Law) will apply a punitive multiplier: Pelizzo and his attorney Francisco Ferreiro deserve to be compensated for dealing with one of the most nauseating shakedown lawsuit cartels.
While monetarily $7K is just a slight slap on the wrist, it is yet another hole in Lipscomb’s cover of legitimacy: those holes never disappear, and sooner or later will contribute to the downfall of the dreadful shakedown enterprise.
In other news from the Sunshine State
In my previous post I covered FLSD Chief Judge’s denial of Lipscomb’s motion for ex-parte discovery. I have an impression that Miami, Lipscomb’s own backyard, becomes more and more hostile to him:
- On 2/2/2014 another FLSD judge, Magistrate Frank Lynch, also denied Lipscomb’s motion for ex-parte discovery. The reason is untimely copyright registrations (Malibu Media v. John Doe, FLSD 13-cv-14458).
- On 2/12/2014 Judge Ursula Unagro denied Lipscomb’s routine motion for extension of time to serve the defendant and closed the case (Malibu Media v. John Doe, FLSD 13-cv-23714). Note that in the past judges rubber-stamp granted such requests.
Update: case closed
On 3/28/2014 Judge Patricia Sietz adopted Magstrate’s recommendations, overruling defense objections, and closed the case.
Although I disappointed that the outcome was too mild for Lipscomb ($6,815.50 is a pocket change for him, less than a typical settlement amount), it was a close call, and if Justice is more than a word, he will pay daringly for all the suffering he caused.
It was a close call indeed:
It appears that Plaintif;s Counsel has accepted this opportunity to improve his approach to conflicts in this and future cases.The Court expects that Counsel’s future conduct will exhibit the highest levels of professionalism. If not, he does so at his own peril. Let this case be a learning experience for all involved.