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Florida magistrate recommends to sanction Keith Lipscomb

If you never heard about Malibu Media v. Pelizzo (FLSD 12-cv-22768), you should read this post. Warning: you may want to take an emergency shower afterwards.

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.

Magistrate Judge
Andrea Simonton

On 2/18/2014, Magistrate Andrea Simonton issued her report and recommendation in this case. I have mixed feelings about it.

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.

 

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Discussion

13 responses to ‘Florida magistrate recommends to sanction Keith Lipscomb

  1. Wow, Colette, you were right. Lipscomb is a wonderful lawyer. Maybe you should’ve bought the $8 million mansion instead and saved up for a lawyer that’s less scummy.

  2. Florida judges know Lipcsomb. Time for the other judges across the nation to wake up and put an to the shakedown. Little doubt, at the end of the day, there will be a tsunami of lawsuits against Collete and Brigham Fields.

  3. Yes, the first part of the R&R is sad. There may be prima facie evidence to start a case against a Doe/IP address, but that in no way means Troll Lipscomb does any real investigation into the facts surrounding these cases. The only thing they have is their list of other non-Malibu Media (AKA: “Exhibit C”) that was shared via BT on the same IP address. IMO, to name and serve a person based only on the the fact that they are the ISP subscriber is reckless. Even if a Doe declines to talk to Troll/Plaintiff, that does not increase the likelihood they are the infringer. If Troll/Plaintiff decides to name/serve a defendant, they should have more evidence than the ISP records show the defendant pays the bill.

    It is as if the judged believes unless Lipscomb makes a statement admitting to improper motives or actions, it never happened. A simple examination of all the Malibu Media cases paints a pretty clear picture that they were designed primarily as a settlement generating model to be used in jurisdictions friendly to their operations. How come Malibu Media does not file cases in California (their home turf) any more??? Stopping piracy of their content not what they want. I do hope Judge Seitz does something more than accept the R&R at face value. It would be nice to see a judge say that Plaintiff brought this case, defendant was the prevailing party, and award reasonable costs/fees. It sends a clear message to the Troll/Plaintiffs that playing this game will cost you when you lose.

    DTD 🙂

    • I wonder how much of this is caused by Judges feeling no lawyer would EVER do anything wrong.
      They know X, Y, Z is over the line and feel the accusations they actually did X, Y, Z requires the accused lawyer to admit it or it did not happen.

      One can not tell me that recent events in many copyright cases challenges this view of things. We have seen time and time again a Judge having a bad feeling about something but allowing it to proceed, and cause havoc for Does, only to decide later that maybe that bad feeling was something and make lame attempts to put the genie back into the bottle.

      No lawyer would file a case without good foundation, yet we’ve seen multiple cases with missing or “inaccurate” (read fraudulent) copyright applications. Hell there was the case where one of the horror trolls got names in a case where they were not representing the film they alleged in the filing. They screwed up the name of the clients film and no one caught this until the man who owned the film and never authorized the action was informed by people calling him out for being a troll. How does this happen? Because the system assumes that lawyers would NEVER screw up like that and it would be wrong to question the claims before proceeding.

      We’ve seen lawyers using the law against lay people by getting them to sign away rights by misleading the target. But only recently have Judges said boo about this conduct. We’ve seen courts award defaults where there is nothing beyond a claim the target was served, when the evidence doesn’t support that the defendant was served or was even aware of the case. We’ve seen the scope of how far they are willing to go and the courts not pushing back until the public outcry grows.

      The wheel is turning, but perhaps it would turn faster if the courts started treating the lawyers in the same way they treat the Does.

  4. No idea if this was already brought up, but typing “fightcopyrightrolls.com” does not redirect you to your site; it redirects to the Trichordist.

    Obviously, David Lowery has a keen interest in making sure pornographers and their lawyers are allowed to sue grandmothers, and considers this an important tenet of copyright law.

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