Guardaley | X-Art

Defendant asks judge to declare Malibu Media a vexatious litigant

Nearly every motion authored by Jason Sweet or Dan Booth is a treat. Once in a while the treat is so good I can’t help sharing the joy with others.

Booth Sweet fights two Ohio cases against Malibu Media/Lipscomb. I wrote about one of them — Malibu Media v. John Doe (OHSD 14-cv-00493). Certain interesting things happened since the last update.

Yousef Faroniya

After an Ohio Judge Timothy Black scolded the plaintiff for its sleazy litigation practices in two other OHSD cases back in May, the troll, represented by a young and sloppy lawyer Yousef Faroniya did what submissive puppies normally do: dropped belly up and peed on the floor. Not only were those two lawsuits voluntarily dismissed, but also the troll cut and ran from the instant case, which happened to land on the same judge’s docket¹. By “cut and ran” I mean a voluntary dismissal without prejudice, which usually leaves a defendant without a prospect of recovering attorney fees. The de-facto absence of any downside for the plaintiff and unconstitutionally high statutory damages are the main two reasons vermin such as M. Keith Lipscomb parasitize on the US judiciary.

However, usually doesn’t mean always, and thus Jason Sweet has asked the court to consider 28 U.S.C. § 19 sanctions, as well as to exercise its inherent sanction authority and punish Malibu Media and Yousef Faroniya for their frivolous conduct:

A court must temper a plaintiff’s right of voluntary dismissal with consequences when it used not in good faith, but rather as a tactical tool to frustrate due process and in such a way that prejudices a defendant’s rights.

Malibu of course disagreed, which prompted the defendant’s reply in support of sanctions — the subject of this story.

This reply is hilarious, and you should read it in its entirety. I only want to emphasize two points.

1

The Malibu Trolling Algorithm (aptly named “Greed over Guilt”) presented in this motion should be made a PowerPoint slide in the mandatory field manual for attorneys and judges exposed to the trolling virus:

  1. Use a sliver of evidence as the basis for suit and move for early discovery.
    [At which point, defendant is notified by his ISP of suit.]
  2. Wait for defendant or his counsel to initiate contact and inquire about a settlement.
    [Defendant is then notified of the statutory maximum and Plaintiff’s willing to settle for the minimum. Defendant is now faced with three choices: 1) financial ruin if he loses; 2) financial ruin and humiliation if he litigates; 3) fight.]
  3. If no settlement agreement is reached, amend the complaint to name the defendant.
    [Defendant, regardless of guilt, must now contend with the stress that friends, family or employers may stumble across this public filing]
  4. Move to extend the time to complete service repeatedly.
    [This serves two purposes in hopes of facilitating settlement: 1) to hang the suit over defendant’s head; and 2) to draw out defendant’s litigation expenses.]
  5. Serve the defendant. If defendant does not default, move on to discovery.
  6. Discovery tactics include: 1) move to extend the time to complete expert reports repeatedly; 2) depose neighbors.
    [Again, the extensions are to draw out the litigation. The depositions are to publicly shame a defendant.]
  7. Voluntarily dismiss the matter at any point before trial.

(In between 5 and 6 I would insert frivolous motions to strike the defendant’s affirmative defenses. These motions are filed in nearly 100% of cases after the defendant answers, and they have no purpose other than to multiply proceeds and delay an inevitable dismissal, thus buying more time to apply pressure.)

(In between 6 and 7 I would insert a slimy tactics of stretching the facts to accuse the defendant in spoliation and perjury if no X-Art’s obscenities were detected on the hard drives.)

2

The second important point is, as the headline states, a request to declare Malibu Media a vexatious litigant:

Included among the Court’s inherent authority is the ability to impose pre-filing restrictions on harassing and vexatious litigators. […] Plaintiff and its counsel have filed hundreds of cases, including this one, in this District alone. None have gone to trial. Rather, most are voluntarily dismissed or end in default judgments of one kind or another. More so, all are brought without regard to guilt, but rather to harass and extort settlement. Given the sheer volume of cases brought, this Court would be well within its power, should it chose, to declare Malibu Media to be a harassing and vexatious litigator and impose restrictions.

Hard to add anything and hard to disagree: I’m actually wondering why defense attorneys and judges didn’t consider protecting courts and public from the Malibu judicial plague this way.

Again, read the whole motion and enjoy:

Update

8/30/2016

On 3/30/2016, Judge Black said his final word. While the judge refusing to sanction the troll, a harsh language of the order suggests that it was a close call:

Here, the Court shares Defendant’s concern that Plaintiff Malibu Media is abusing the process by filing actions solely in an attempt to force settlement, with no intent to actually litigate the claims. The Court is also mindful, however, that Malibu Media has a right to pursue its copyright claims and has a right to voluntarily dismiss an action before a defendant’s answer. The Court is not prepared to impose sanctions in this particular action, where several factors weigh against a finding that Plaintiff abused the process.

 


¹ The troll also hastily dismissed MalibuMedia v Jablonski (OHSD 14-cv-00417) on 5/29/2015. In that case Judge Black issued OSC back in February, and the defendant accused Faroniya/Malibu in lying about the service.

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Discussion

8 responses to ‘Defendant asks judge to declare Malibu Media a vexatious litigant

    • We already know that Colette and Brigham regularly take a cavalier attitude to breaking laws they find inconvenient, such as filming in their home without a relevant permit. If they wish to throw books at everyone else I see no qualms in picking up and throwing said books back at them.

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