“Damages above that which would Make it Whole”
These dismissals were preceded by a motion to quash/dismiss/protective order filed by a defense attorney Bill Wohlsifer in Malibu Media v Doe (FLMD 14-cv-02341) on 1/14/2015. This motion (specifically the dismiss part) raises an interesting argument: the plaintiff cannot recover the statutory damages from individual members of the same Bittorent swarm in separate actions. As an example, the defendant notes a virtually identical Ohio case (same swarm, almost the same time).
The defendant argues that Malibu implicitly assumed swarm-wide joint and several liability, thus the plaintiff is estopped from demanding statutory damages individually:
MALIBU cannot have it both ways. Thus, if the Court were to find that Plaintiff sufficiently implied commonality in the same transaction or occurrence or joint and several liability (despite the omission of any such language), by pleading same swarm/hash, the remedy is inconsistent with the cause of action, fails to state a cause of action, and must be dismissed because the complaint seeks non-cumulative statutory damages per defendant.
In addition, Wohlsifer calls out Lipscomb’s predatory practice of collecting (via settlements) way more monies from named and unnamed defendants than the plaintiff is entitled to:
MALIBU seeks damages above that which would make it whole. Accordingly, Plaintiff may only seek damages per swarm, not per defendant. Moreover, it is not out of the realm of possibilities that Plaintiff may have already been made whole by alleged members of this swarm prior to bringing this action.
This above that which would make it whole concept resonates with Booth Sweet’s one satisfaction rule argument. Last week Dan Booth published a must-read article “The ‘One Satisfaction’ Rule: A New Approach to Curbing Copyright Trolls” in the Landslide (an ABA Journal). This theory is currently being tested in Malibu Media v [John Doe] (OHSD 14-cv-00821).
I like this trend and have big hopes that these ideas gain traction: if Malibu’s and other trolls’ multiple-ransom-for-one-work gravy train derails, it will severely neuter their extortion racket.
Alas, 14-cv-02341 and the other cases assigned to Judge Merryday were not dismissed based on the merits of the defendant’s motion, but because of the failure to timely serve defendants, as we will see below. As Bill Wohlsifer noted,
This is a bitter-sweet result as I am glad the case was dismissed so that the plaintiff takes nothing by way of its lawsuit and my client can return to life without the threat of a civil suit, but I was looking forward to a court ruling on the defensive motion I filed.
Order to show cause, followed by lame excuse, followed by dismissal
On the very same day (1/14/2015) Lipscomb filed a bunch of motions in this and other FLMD cases to extend time to serve defendants — motions very consistent with his tactics of frivolously delaying the proceeds. He argues that because his ex parte motion for discovery was granted only on 12/2/2014, ISP didn’t have time to cough up the subscriber’s information.
Judge Steven Merryday was not impressed: he noticed that the Rule 4m’s 120-day complaint-to-service period was about to expire and wanted to know why it took so long to move for discovery (around two months from the lawsuit inception). Thus, he orders to show cause in this and three other cases assigned to him:
Seventy-six days passed between the start of this action and the issuance of the plaintiff’s subpoena, and the plaintiff offers no reason for the delay. Accordingly, the plaintiff fails to offer sufficient information to determine whether the plaintiff pursued this action with due diligence.
Lipscomb responded on 1/22/2015 with a facepalm-inducing reasoning:
1. On September 12, 2014, the paralegal at undersigned’s office in charge of calendaring deadlines and filing motions went on maternity leave.
5. Because of the transition between office staff, Plaintiff’s Motion was unintentionally not filed with the complaint.
You get the idea. It is not easy to take this excuse seriously, isn’t it? The judge was not impressed either (even less impressed than at the time of OSC), so he denied the motions for extension and dismissed this and three other cases:
While reading Lipscomb’s lame excuse, I noticed the following (emphasis is mine):
Although Plaintiff’s Motion had been drafted and was ready for filing, the paralegal hired to replace the paralegal who left was still getting acquainted with this office’s practices and procedures and trying to familiarize herself with the firm’s expansive caseload and status of each case.
I think that this “explanation” runs afoul of the clear requirement of the Florida Rules of Professional Conduct:
A lawyer’s workload should be controlled so that each matter can be handled adequately.
Even if the paralegal story was indeed the reason for the delay, having the single point of failure like this was very unprofessional.
So, essentially Keith Lipscomb presents a violation of the Rules of Professional conduct as an excuse. Nice. Even the classic “dog ate my ex parte motion” explanation would be more appropriate.
There is more. Lipscomb claims that (emphasis is mine)
This deviation occurred in a very small number of cases and was caused by the staffing transition. Until the firm engaged in a periodic internal audit of the lawsuits which it filed and oversees, this mistake was not caught. As soon as it was noticed however remedial action was taken.
My bullshit-meter was triggered, so I checked the other dockets and discovered that in these four cases the discovery motion dates span 10/30/2014 to 11/14/2014 — more than two weeks. Assuming that the mistake “was caught” at the end of October, why did it take two weeks to take the “remedial action”?
Lipscomb and his gang continue to molest the courts and plunder the citizenry. And he does it pretty sloppily: any time I have a cursory look, I immediately uncover inconsistences and contradictions. It is heartwarming to see that at least some judges are allergic to Lipscomb’s BS while other courts blindly trust even the crookest “officers of the court.”