Malibu Media v. John Doe (OHSD 14-cv-00493) is one of the cases I list on the “Cases to watch” page. A mere fact that the defendant is represented by Jason Sweet means that it is worth attentively watching how this case progresses.

I wrote about this lawsuit half a year ago. That post was mainly about the defendant’s argument that the plaintiff didn’t need to know the Doe’s identity because his/her attorney would happily accept the service. The motion exchange revealed that Malibu’s local Yousef Faroniya is merely a stooge who files shakedown lawsuits and forwards email to/from the troll center in Miami. Not surprisingly, he avoids talking to the opposite party’s attorneys at all costs; hence I named the post “Copyright troll Yousef Faroniya and his telephonophobia.”

Normally I would edit the post to append a new information, but because at least three major events happened since my last update, a new article is appropriate. These events are:

• the judge’s order denying the defendant’s motion to quash, and striking parts of the plaintiff’s complaint;
• the defense’s motion to dismiss for failure to timely serve;
• the plaintiff’s violation of the court’s order and the resulting motion to show cause.

The judge denies the motion to quash yet expresses concerns

Unfortunately, Judge Timothy Black was not persuaded by Sweet’s argument and on 1/21/2015 ruled that the plaintiff is entitled to know the defendant’s identity. Nonetheless, while the judge didn’t explicitly order not to identify the defendant publicly at that time, the tone of the order suggested the assumption that the defendant would proceed pseudonymously.

Denying the motion to quash didn’t mean that Judge Black was happy with the plaintiff’s conduct. The following paragraphs from the complaint piqued his attention:

25. IPP’s software also logged Defendant’s IP address being used to distribute third party files through BitTorrent. This evidence indicates that Defendant engaged in BitTorrent transactions associated with 2732 files between 06/23/2013 and 05/13/2014. Collectively, this evidence is referred as the “Additional Evidence”.

26. Plaintiff has the Additional Evidence on a document and can produce it.

27. The Additional Evidence demonstrates that Defendant is a persistent BitTorrent user.

28. Many of the titles to the third party works may also be relevant to proving Defendant is the infringer because they correlate to the Defendant’s hobbies, profession, or other interests.

Those who follow these cases remember that Malibu Media and its attorney Mary K. Schulz was sanctioned twice in Wisconsin for filing an infamous irrelevant and scandalous “exhibit C” — the list of filenames, many of which are embarrassing, purportedly shared from the defendant’s IP address. The judge thought that the above paragraphs from the complaint are nothing but a concealed “Exhibit C,” so he sua sponte ordered to strike this travesty:

Finally, the Court sua sponte raises what appears to be a remnant of one of Plaintiff’s particularly controversial litigation practices. Plaintiff’s complaint makes the seemingly off-hand allegation that IPP International UG logged Defendant’s IP address distributing 2,732 third-party files through BitTorrent. Plaintiff euphemistically describes this as “additional evidence” that Defendant is a persistent BitTorrent user and that “[m]any of the titles to the third party works may also be relevant to proving Defendant is the infringer because they correlate to the Defendant’s hobbies, profession, or other interests.” Plaintiff advises that it has this “additional evidence” on a separate document and gratuitously offers to produce it upon request.

Plaintiff presumably did not attach this document to its complaint because its lawyers have been sanctioned for the same. This attachment, the sequentially numbered Exhibit C, “consistently includes far more disturbing lewd, unusual and unredacted titles of pornographic films allegedly downloaded by the defendant than those belonging to plaintiff.” Courts concluded that the sole purpose of this exhibit was to “harass and intimidate defendants into early settlements by use of the salacious nature of others’ materials, rather than the merit of its own copyright claims.”

Although Plaintiff did not attach Exhibit C to its complaint, references to its existence and thinly-veiled threats of its production demonstrate that “these cases are fraught with circumstances that could embarrass the putative defendant should they become public and strongly influence his or her decision to settle even a meritless suit just to make the case go away before being publicly associated with their client’s film.” The alleged infringement of third-party copyrights is “immaterial to the allegations in the complaint.” Further, “the exhibit is merely a list of filenames, and it likely constitutes ‘immaterial, impertinent, or scandalous matter’ that should be stricken from the complaint.”

[…]

Accordingly, the Court STRIKES paragraphs 25-28 from the complaint.

Service games and motion to dismiss for failure to serve

The judge’s order also gave the plaintiff additional 38 days to serve the defendant.

The troll got a hold on the defendant’s identity on 2/2/2015. A reasonable bystander would think that Malibu would rush to serve, right? Wrong. The defendant was not served by the 2/28/2015 deadline. Why? Maybe because Lipscomb’s back office is not that good with the logistics, maybe because the trolls are spoiled by the majority of gullible judges who rubberstamp extensions without asking questions, or maybe because Lipscomb was scared of the prospect of the defendant answering the complaint, which would close the backdoor of the voluntary dismissal cut-and-run.

Moreover, after an email sent to the defense attorney strategically on Friday night before the deadline, the troll had an audacity to ask the judge for another extension.

On 3/11/2015 Jason Sweet filed a motion to dismiss for failure to effectuate the service:

 

Note that this motion lists seven other Malibu cases from this district in which the deadlines to serve passed.

What judge immediately did is encouraging: not only did he sua sponte expedite the briefing of this motion, setting a tight schedule (troll’s memorandum contra due by 3/18/2015; defense’s reply memorandum — by 3/23/2015), he also issued an order to show cause in one of other Malibu cases assigned to him, in which the defendants were not served past deadline.

The troll reveals the defendant’s name and address in violation of the judge’s order

Two days after the defendant’s motion to dismiss, on 3/13/2015, Malibu filed an amended complaint, and the exhibits, purposefully or not, displayed the defendant’s name and address, which was a clear violation of the 2/26/2015 judge’s order granting plaintiff’s motion to file the amended complaint and summons:

[…]The Clerk is DIRECTED to issue the summons under seal. The Court establishes the following procedure to balance Defendant’s privacy interests with the presumption of open judicial proceedings. Simultaneously with filing its proposed summons under seal, Plaintiff shall also file a Reference List and an amended complaint. The Reference List, which shall be filed under seal, must contain Defendant’s name and any other identifying information that Plaintiff deems necessary to the prosecution of its case, as well as an appropriate identifier that uniquely corresponds to each item listed. See Fed. R. Civ. P. 5.2(g). The amended complaint and all subsequent filings shall be publicly filed and must refer to Defendant only as John Doe and use the identifier provided in the Reference List for other identifying information. The Court reaffirms the other directives set forth in the 1/21/15 Order. (Doc. 20 ).

Fortunately, thanks to the judge’s clerk’s sharp eye, the documents were sealed immediately. Nonetheless, defendant’s attorney was understandably furious, and yesterday he asked the judge to sanction Malibu’s counsel.

In his motion, Jason Sweet claimed that what happened was not a mistake, but a deliberate premeditated action:

On March 13, 2015, Plaintiff, in violation of the Court’s repeated Orders, filed an unredacted summons and reference list with John Doe’s name and address plainly visible. See Docs. 24 & 25. By choosing to file these documents at 8:00 PM on a Friday evening, Plaintiff intentionally chose a time when it would be difficult to correct, and the embarrassment alone might cause John Doe to seek a non-trial disposition just to end the matter. More so, the documents are dated March 12, 2015, further compounding the inference that Plaintiff intentionally waited until Friday evening to file them. Nor is this the first time Plaintiff has indicated a willingness to employ this tactic against Does who refuse to settle.

To substantiate his claims, Sweet listed three other Lipscomb’s cases, in which the defendants’ identities were “mistakenly” publicized.

Judge Black didn’t procrastinate, and today he issued an order to show cause why the troll shouldn’t be sanctioned for a blatant violation of the court’s order:

 

Stay tuned for updates.

 

Coverage

• TechDirt: Massive Copyright Troll Malibu Media/xArt Defies Court Order To Publicly Name Defendant

Updates

3/19/2015

So, the Troll Center in Miami scrambled all its crafty young attorneys and produced Malibu’s response in opposition to the motion to dismiss discussed above. This is one of the weakest (and most arrogant) excuses I saw from Lipscomb & Co. The troll has been waiting to serve for a month, because… (put your drinks to the table in order to avoid spillage):

[…] Plaintiff could not immediately effectuate service at that time, not only because it did not yet have an issued summons but because it still had to adequately carry out a due diligent investigation to ensure it had a good faith basis for proceeding.

Triple facepalm. These guys, who are infamous for their pick-from-the-ass investigative techniques, which often result in wrong people being dragged through costly lawsuits had an audacity to claim this as an excuse? Spare me.

Here is how our young Yousef’s telephonophobia is explained:

Although largely irrelevant to the analysis, undersigned notes that he has experienced issues with Defendant’s attorney in this and other cases concerning telephonic miscommunications. To avoid any intentional or inadvertent miscommunication, undersigned has made it a point to confer with Defendant’s attorney only in writing to avoid repeated miscommunications.3 Although Defendant’s attorney is aware of this, he continues to badger undersigned to communicate telephonically, and habitually delays in responding to emails.

Yeah, right, “avoiding miscommunication.” For those with IQ > 70, it’s obvious that it is rather avoiding revelation of the fact that our young Yousef is only a stooge, who is not only incapable of putting two words together coherently, but can’t even maintain an illusion of his involvement.

Jason Sweet will have a field day with theses crappy “explanations.” Can’t wait.

3/20/2015

Young Yousef replied to the order to show cause. Of course he said it was a mistake.

The following day, Friday, March 13, 2015, was my birthday. I was distracted and in a hurry and filed the documents erroneously.

(While I say “he,” the text is most like written in Miami: I don’t believe the Troll Center would let an inexperienced stooge handle such a serious situation unsupervised.)

Beside attacking Jason Sweet (“Defense counsel is a well-known anti-copyright lawyer” — this is funny!), our drama queen claims that it was him who notified the clerk. I would take it with a grain of salt given the way how he described a similar “mistake” in the Bellwether case:

Once Plaintiff and its counsel were made aware of the mistake, the clerk was immediately contacted and the problem was resolved

I know the circumstances of that event: it wasn’t plaintiff’s counsel who contacted the clerk.

While I don’t claim that the defendant’s name exposure was a deliberate action and not a blooper, the results of the poll above are telling: even given that the sample is admittedly biased, it’s obvious that there is zero trust in what copyright extortionists say. And plenty of disgust of what they do.

3/24/2015

The defendant replied to Faroniya’s response to the OSC. Jason Sweet’s point is that the said response failed to address the merits of judge’s concerns and that the “innocent mistake” explanation is both insufficient to be excused from contempt sanctions, and disingenuous:

[…] Plaintiff seems to indicate that it should be applauded for immediately seeking retroactive compliance rather than sanctioned for violating the Court’s orders. Such a position is both naive and disingenuous. It calls into question the integrity of the discovery process conducted under protective orders. Plaintiff has filed thousands of actions throughout the federal court system, most of which follow a similar path: pre-trial discovery and a speedy voluntary dismissal. In the handful of cases where a defendant has chosen to fight, and where Plaintiff has violated a protective order via an after-hours filing, the claims against the defendants are soon after voluntarily dismissed. Thus, Plaintiff is able to “cut and run”—avoid responsibility, avoid sanctions and continue the practice as need be. Given the similarity in circumstances and that Plaintiff controls all aspects of the litigation, there can be little doubt of “intelligent error” on the Plaintiff’s part.

I liked a small but powerful remark that called out Malibu’s massive lies (FN 3):

Plaintiff states most of its 3,600 cases have protective orders requiring anonymity for the defendant. Doc. 29, p. 4. Concerning ourselves with only those matters filed in this District, of the 179 cases filed only 13 have protective orders. Two were issued upon motion by John Does who timely obtained counsel, see Nos. 14-cv-00804 and 14-cv-00456, the remaining 11 were issued sua sponte by your Honor.

5/27/2015

Yesterday Judge Timothy Black addressed three issues, ruling in favor of Malibu (yet with a caveat: read along). In his order, the judge

• Granted plaintiff’s second motion for extension of time to complete service of process (doc. 22)
• Denied defendant’s motion to dismiss (doc. 23)
• Withdrew the order to show cause why Plaintiff and its attorney Yousef Faroniya should not be sanctioned or held in contempt for publicly filing Defendant’s name and address in violation of the Court’s Orders (doc. 27)

The overall tone of the order echoes the orders to show case issued on the same day in two different Malibu cases: in those orders the judge scolded the plaintiff, explicitly calling it “copyright troll.” This tone can be summarized as

Although Malibu Media has not proceeded with the utmost diligence, it also has not exhibited the level of dilatory conduct that would justify dismissal for failure to prosecute.

[…]

It is undisputed that Malibu Media violated a procedural protection that it proposed and that this purported gesture of good faith rings hollow if it is not followed in practice. However, the drastic sanction of holding Malibu Media or Mr. Faroniya in civil contempt is not the appropriate response from the Court.

In other words, it was a close call and further games played by Malibu and its counsel won’t be tolerated:

The Court trusts that Malibu Media, Mr. Faroniya, and Lipscomb, Eisenberg & Baker have received the message. Lest there be any confusion, future misconduct or violation of Court orders, which is not limited to the particular misconduct at issue here, in this or any other action will likely result in the imposition of monetary sanctions.

Followup

• Defendant asks judge to declare Malibu Media a vexatious litigant