Guardaley | X-Art

Defendant opposes Malibu Media’s brazen attempt to cut and run without compensating wrongly accused

On Friday, on behalf of his client David Ricupero (OHSD 14-cv-00821), Jason Sweet filed an opposition to Malibu Media’s motion to dismiss the case without prejudice. Malibu’s motion was filed under seal¹, therefore I don’t have it. However, the context of Sweet’s opposition paints the full picture of what’s going on. Since this picture is troubling, I have decided to write a separate post rather than an update to the previous one, dedicated to this case².

So, after almost two years of unsuccessful shakedown attempts, Lipscomb & Co. has decided to cut and run in order to avoid compensating the defendant for incurred expenses, harassment and humiliation — in a lawsuit that has been based solely on speculation and inadmissible evidence.

This is not something new: running away the very moment a smell of trouble appears in the air is an integral part of Lipscomb’s “litigation strategy.” Alas, our judicial system is slanted towards plaintiffs: crooked litigators are allowed to dismiss a frivolous case without compensating their target before an answer or a motion for summary judgment is filed by the defendant. This happens a lot: more than half of Malibu Media’s lawsuits end this way. The main reason of such dismissals is a negative result in what I call a “turnip test,” i.e. when it becomes obvious that the defendant is of modest means, so not a drop of blood could be squeezed from him or her. Another reason is a competent and/or aggressive defense — not something Lipscomb wants to deal with. Discovery is a two-way street, and as we witness more and more, the troll goes to great lengths to obstruct the defense’s attempts to obtain the very evidence thousands of its lawsuits are based upon.

While, as I said, the court system is slanted toward plaintiffs, there are certain safeguards: a plaintiff cannot simply dismiss its lawsuit without prejudice after the defendant files an answer or motion for summary judgement: it must petition the court for that (Fed.R.Civ.P. 41(a)(2)). And the difference between dismissals with and without prejudice is huge: only dismissals with prejudice allow the defendant to claim attorney fees as a prevailing party.

In post-answer cases, to prevent exposure of Guardaley’s dirty kitchen and to avoid even a slightest possibility of a jury trial, Lipscomb first invokes his “Plan B” — wrestling defendants into accepting a walk-away settlement (i.e. no money changes hands, which would sound like a good outcome if not for thousands of dollars defendants already paid to their attorneys). Dozens of interesting cases with swollen dockets ended this way.

However, not every defendant is willing to walk away without a fair compensation. In such cases, Lipscomb moves the court to dismiss the case without prejudice. Unfortunately, this strategy did work in the past, so now he tries the same approach in Ricupero.


It is clear that when the plaintiff files a post-answer motion to dismiss the case, it means that a walk-away offer was offered and rejected.



So what is Lipscomb’s justification for leaving the defendant uncompensated in this case? According to the troll, the defendant is “broke” and continuing this case won’t result in a hefty ransom! It can’t be more cynical than that. The defense correctly calls out this bullshit:

After more than a year of motion practice and discovery, Plaintiff Malibu Media seeks dismissal of this action without condition pursuant to Fed.R.Civ.P. 41(a)(2). Malibu is moving to dismiss “because proceeding with this case is not economically justified,” i.e. the Defendant David Ricupero is broke. […] Malibu’s position is disingenuous. Malibu was advised early and often that their claims were baseless [See e.g. Doc. 7]; that Ricupero had evidence of his innocence [See e.g. Doc. 70]; and that Ricupero, like most individuals, was of limited financial means [See e.g. Doc. 58 p. 10]. Ricupero specifically rebutted, under oath, Malibu’s allegations of infringement. Moreover, Ricupero has expended significant resources. Malibu’ explanation for needing to take a non-suit is inaccurate, as evidenced by Defendant’s Motion for Default Judgment [Doc. 78] and Defendant’s Motion for Summary Judgment [Doc. 79] showing that Malibu sought non-suit only after: failing to comply with the Court’s October 26, 2015 discovery order; completing their discovery of Ricupero; knowing a summary judgment motion was forthcoming [See e.g. Doc. 78 p. 4; Doc. 78-24 p. 4].

This case should be dismissed with prejudice. Only such a dismissal will Ricupero be able to seek fees as a “prevailing party” under 17 U.S.C. § 505, as is particularly appropriate here.

It is mind-boggling that Malibu continues to maintain unsupported claims of the defendant’s guilt, accusing him of perjury and spoliation, and even calling him a “criminal.”

The defense goes to a great detail debunking the “reasons” the plaintiff cites as a basis of the dismissal without prejudice: read the opposition embedded below, and you will roll your eyes more than once. Nine examples of how Malibu lawyers twisted the truth are more than enough even for a casual reader to understand that Lipscomb is full of crap³.

The actual reasons behind the dismissal attempt, according to the defendant’s opposition, are:

  • to avoid discovery;
  • to avoid determination on merits;
  • to avoid paying the prevailing party fees.

It cannot be clearer.

Followups

 


¹ The reason for sealing (which the defendant agrees to) is to keep private alleged “third party infringements”: inadmissible, irrelevant “evidence” that Malibu Media always touts, when the plaintiff’s “expert” finds neither traces of X-Art’s smut, nor indications of spoliation.

² Make sure to listen to DieTrollDie’s podcast that discusses this case in a great detail.

³ The troll even resorts to outright lies:

In further support of this contention, Malibu later extensively cites Patrick Collins, Inc. v. Osburn. […] The cite is to a one page order on which none of the quotes referenced appear.
Not that is it something new: an infamous Malibu’s “Internet Hate Group” motion is full of references that contradict the claim.
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Discussion

12 responses to ‘Defendant opposes Malibu Media’s brazen attempt to cut and run without compensating wrongly accused

  1. Hope spring eternal, lets hope the courts finally decide to look at the very long history and consider that perhaps they’ve been mislead and served up a bunch of innocents on a plate.

  2. Dear U.S. Attorney’s and Department of Justice,

    I’ve read that the D.O.J. has ongoing interest in these blogs. Good. Welcome. Lets get to work.

    I realize you should already have and know most of this, but I thought I’d provide a little extra emphasis and encouragement by quoting the information below, putting the activities of these copyright terrorists and extortion trolls, along with their foreign and domestic co-conspirators, in proper perspective:

    18 U.S. Code, Chapter 96 – RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS § 1961–1968

    §1961 – Definitions
    (1) “racketeering activity” means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, EXTORTION (emphasis added), DEALING IN OBSCENE MATERIAL (emphasis added), or dealing in a controlled substance or listed chemical …. ; (B) any act which is indictable under any of the following provisions of title 18, USC : …. section 1951-extortion; section 1952-racketeering; section 1956-money laundering; section 1957-monetary transactions from unlawful activity; section 1960-illegal money transmittance; … .

    § 1962 – Prohibited activities
    (a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity …….

    (b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

    (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.

    (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.

    § 1963 – Criminal penalties
    § 1964 – Civil remedies
    § 1965 – Venue and Process
    § 1966 – Expedition of Actions

    My opinion is that the US Attorneys should have more than enough ammunition and evidence to go after these domestic courtroom terrorists, cleaning-up the copyright-extortion troll shitpile, and especially the largest contributor and biggest turds riding the wretch-worthy waves of the copyright-troll cesspool, Keith Lipscomb and Malibu Media. These scum are economic terrorists, running what I think can be proved to be a RICO-designated extortion organization. I look forward to your prosecutorial involvement in ridding the American public and the Federal Court system of the foul stench of their extra-judicial copyright actions. Please put an end to their extortionate ‘enforcement’ activities.

    Extortion is a criminal act, no matter how loud these extortion trolls protest, or how artfully the trolls try to disguise their activities by covering them with self-serving legalese. These trolls employ deception, half-truths, and lack of full and truthful disclosure in many of their statements and filings. These include:

    1. filing legal actions, and sworn statements in support of those legal actions, despite knowing, and now finally admitting on the record in one of their latest cases (ohsd-14-cv-00821), that they do not have possession or control of, and cannot even produce for the court or defendants, the most basic evidence the troll based its court filings upon. This is fraud and perjury, plain and simple. And its happened thousands of times now…across state lines and diverse court jurisdictions, in literally any and every action they have brought to federal district courts claiming copyright violation.
    2. knowingly filing legal briefs with deceptive descriptions and half-truths on bittorent use/purpose and on identifying victims/defendants using only an IP address, all meant only to obtain “prior to rule 26f conference” subpoena’s, thereby denying due-process to all ultimate defendants.
    3. seeding its own so-called ‘films’ to bittorrent even prior to public availability, entrapping potential alleged infringers that trolls can then extort money from.
    4. lack of substantive DMCA process use, demonstrating clearly a failure to even attempt to mitigate any alleged economic damage they claim.
    5. so-called expert testimony/reports/support from biased bought-and-paid-for (sometimes illegally contracted…) “experts” that lack standing and qualification as expert witnesses.
    6. lack of any effort going after initial torrent file seeders.
    7. producing much of their porn illegally in Ventura county CA, knowingly negating any legal rights to copyright and later legal action. Porn/obscene material cannot be properly copyrighted anyway.
    8. use of unlicensed and foreign private investigators, in violation of state law and statutes.
    9. failure to inform courts of, and failure to make available to opposing counsel, the unproven and unsubstantiated ‘proprietary software’ that the extortion operation relies upon to find alleged infringers, and possible manufacture of ‘evidence’ of alleged infringement.
    10. aggressively employing subterfuge and outright fraud in hiding ‘evidence’, evidence sources, software relied upon, trial experts, foreign actors, APMC involvement in illegally directing lawsuit activity in the US, false depositions utilizing non-experts…..they fight any legitimate examination and dissemination of their evidence and activity by any court or defense counsel.
    11. cut-and-run action when confronted with trial-based outcomes, to avoid properly paying their extortion victims defense costs, costs that the trolls have saddled extortion victims with in order to defend themselves from baseless and frivolous lawsuits.
    12. surveillance, recording, and intercepting private and priveleged communications that likely violate terms of one or all of the ECPA, CFAA, SCA, and WFA federal acts/statutes.

    These above actions, in some circumstances individually, and especially when considered in total, results in coordinated-enterprise extortion activities. These trolls are victimizing many unwitting and sometimes unrepresented defendants when victims are hit with unjust subpoenas (again, obtained through deceptive initial filings) and then unjust settlement demands. This extortion activity is solely meant to unjustly and illegally enrich the copyright troll, again primarily Malibu Media and its morally and ethically challenged dumbass lawyer(s), led by Keith Lipscomb. All of the above demonstrates that this IS NOT about legitimate copyright enforcement action at all, but solely about trying to game the courts and obtain money with extortion-tainted “settlements”, no matter how much the copyright/extortion trolls protest and attempt to cover-up the reality of their behavior.

    IMHO every involved law firm principle, clerk, and associate involved in these lawsuits, and the owners of the porn company itself, should be pursued, individually and collectively, and prosecuted accordingly. By law any and all proceeds are ill-gotten gains, and any resulting investments and proceeds from their extortion activity should be recovered and returned to the troll’s victims and the court system. All principle extortion actors involved in this process should be prosecuted, fined, and incarcerated.

    Go get them D.O.J. The copyright terrorists actions, and we the aggrieved American public, deserve no less.

    Edmund Jennings Randolph

    PS.. Anyone else interested in looking into the illegality of these extortion trolls questionable actions should take the time to read the entire 18 USC, chapter 96, especially §1964(c) for those individuals having already been extorted from or under current judicial process from these extortionist trolls. It fits trolls to a ‘t’. Hit back hard…..these extortionists deserve it.

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