Today Judge Black issued orders to show cause in two Malibu Media v. Doe cases assigned to him (OHSD 14-cv-00707 and 14-cv-00718). This is the third OSC in each case. The first one was about Malibu not serving the defendants timely. The second OSC dealt with Malibu’s delay to apply for entry of default. And the third one was issued today — to show cause why these two cases shouldn’t be dismissed for failure to timely move for default judgement — despite explicit orders to file such motions within 21 days.
Judge’s patience is surprising, borderline frustrating, but as we read past the first three pages, it becomes clear that his patience is so thin that the next violation, no matter how small, will be disastrous for Faroniya and Lipscomb. What started as a narrow, case-related stuff, developed into a holistic, damning description of the troll’s modus operandi:
The Court does not view Malibu Media’s conduct in this action in isolation. Rather, the Court views it as part of an unmistakable pattern that has emerged in other actions before this Court and in context of observations made by multiple other federal judges in cases involving Malibu Media.
This Court has observed the conduct of Malibu Media and its counsel of record in over 60 cases filed in this District in the past twelve months. This is not the first case in which Malibu Media has filed a summons return well after the date of service. Counsel appears to have made a misrepresentation in seeking an extension of time to complete service in two cases. The Court also issued an order to show cause after counsel publicly filed a defendant’s name in direct violation of two orders unambiguously ordering counsel to file that information under seal.
Judge Black outlines every questionable conduct he is aware of (and makes a note that it may be just a tip of the iceberg):
The Court is not blind to the reality that these allegations likely substantially underrepresent the amount of misconduct that goes unreported by defendants who simply pay Malibu Media’s settlement demand rather than face the prospect of expensive and extensive litigation regarding their purported interest in pornography.
The judge unapologetically calls Malibu Media ”copyright troll” amid Lipscomb’s comical protestations and his reliance on Judge Baylson’s “not a troll” indulgence issued during the shameful Bellwether Settlement Conference:
The Court is aware that Malibu Media, through separate local counsel, has filed thousands of similar cases in federal courts across the country. A copyright troll has been defined as “an owner of a valid copyright who brings an infringement action not to be made whole, but rather as a primary or supplemental revenue stream.” […] Under this definition, Malibu Media certainly qualifies. However, Malibu Media generally responds to this allegation by pointing to comments of the trial judge in the so-called bellwether trial as unassailable proof that its intentions and tactics differ from other entities that bring copyright infringement actions related to pornographic movies. […] The greater weight of experience suggests otherwise.
Judge Black calls out at length Malibu’s abusive tactics of filing inadmissible, scandalous “third party infringement evidence” — the infamous “Exhibit C,” for which Malibu and its local Mary K. Schulz were sanctioned twice in Wisconsin.
It is heartwarming to see that this judge can recognize when Lipscomb adapts his tactics ostensibly to comply with orders, but in reality — to smuggle the old sleaze under the guise of novel approaches:
Malibu Media is a sophisticated litigant, so it should not be allowed to avoid sanctions simply by adapting its tactics after being questioned by multiple federal judges.”
As an example of such “adaptation,” the judge presents his own experience of striking certain paragraphs from a complaint, having found those paragraphs to be “Exhibit C” in disguise:
Instead of attaching Exhibit C, Malibu Media adapted its practice and now made an explicit reference to a document with “additional evidence” that the defendant had distributed a large number of third-party files through BitTorrent. Malibu Media disingenuously offered to produce this document to the Court with the seemingly off-handed remark that “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.” Id. Citing the two Wisconsin district court cases that imposed sanctions for attaching Exhibit C, the Court struck the offending paragraphs from the complaint and ordered Malibu Media to file a conforming amended complaint forthwith. Two months later, Malibu Media voluntarily dismissed the action without filing an amended complaint.
In one of the cases Judge Black also threatens Rule 11 sanctions for apparent false statements about the service (this is not the first Malibu service-related lie):
The affidavit of process server Kevin Allen states that he personally served Defendant at Defendant’s home on January 26, 2015. This directly contradicts counsel’s representation in the February 10, 2015 motion that “despite the process server’s efforts, the Defendant has not been served.”
The harsh language of these orders suggests that if young Faroniya and/or his Miami curators manage to annoy this judge just a bit more, the force of his hammer descending on the troll’s head will be as large as his enormous patience.
Remember the case where defendant’s identity was revealed in violation of the court order? On the same day Judge Black addressed three pending issues there, and while he ruled essentially in favor of the plaintiff, the tone was basically the same as in the orders discussed above (“further games won’t be tolerated”). Scroll down to the 5/27/2015 update.
- TechDirt: Ohio Judge Fed Up With Malibu Media: Appears To Give Copyright Troll One Last Chance
- Reuters (paywalled): Judge says ‘copyright troll’ shoe fits porn producer Malibu Media
Keith Lipscomb, Malibu Media’s general counsel and founder of the Miami firm Lipscomb Eisenberg & Baker, said in an interview that there have been many other judges who have “rejected the accusations” that Malibu Media used abusive tactics.
Didn’t John Steele say something similar a couple of years ago?
In the one case that has gone to trial so far, in which three defendants admitted liability, U.S. District Judge Michael Baylson in Pennsylvania said in 2013 that the company was not a troll. “Rather,” Baylson said, “Malibu is an actual producer of adult films.”
This is astonishing: Judge Black specifically referred to “so-called bellwether trial” (Black’s words) as “is of little relevance to the present inquiry,” and Lipscomb continues to stubbornly pound that table. Facepalm.
- Law360: Porn Co. Malibu Media Looks Like ‘Troll’ To Ohio Judge
Well, well… One day after the deadline (of course!) the troll responded to Judge Black’s scolding Orders to Show Cause.
If you have neither law nor facts on your side, and pounding the table would inevitably prompt judge’s wrath, run with your tail between the legs.
Embarrassing, to put it charitably…