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Malibu Media well-oiled shakedown machine hits a roadblock: two California judges deny early discovery

Usually, when I observe an “Order on motion for ex-parte discovery” in the court filings feed, I don’t bother to check: with a 99% probability a copyright troll’s ex-parte request to subpoena an ISP is rubberstambed. That’s why we missed a couple of interesting orders issued last month:

On 2/17/2016 Magistrate Judge Mitchell D. Dembin denied early discovery in two Malibu Media v. John Doe cases assigned to him (CASD 15-cv-02933 and CASD 15-cv-02919), arguing that

US Magistrate Judge
Mitchell D. Dembin

The allegation that the IP address at issue likely resolves to a physical address in this District is not supported in any of the declarations filed in connection with the instant motion. (See ECF No. 4). In its Memorandum of Point and Authorities filed in support of this Motion, Plaintiff again asserts that it employed geolocation technology to trace the physical address of the offending IP address within this jurisdiction, and adds the name of the software employed, but again provides no evidentiary support for its assertions, referring back to the ¶5 of the Complaint. (ECF No. 4-1 at 20).

As there is no evidence supporting the allegation that Defendant would be subject to this Court’s jurisdiction, the instant Motion must fail.


This line of argument follows the ruling of a Florida judge Ursula Ungaro, who two years ago didn’t’ allow Keith Lipscomb to proceed with his copyright shakedown scheme in a couple of cases. Notably, Judge Ungaro didn’t simply deny early discovery, but first issued an order to show cause, i.e. gave Lipscomb a chance to disprove the judge’s reasoning, and only after she was not satisfied by the troll’s response, the cases were killed.

One month later after Judge Dembin’s orders, another CASD magistrate, Ruben B. Brooks, also denied an ex-parte request in Malibu Media v John Doe (CASD 15-cv-02931), with a similar argument:

US Magistrate Judge
Ruben B. Brooks

Plaintiff fails to offer any evidence to support its allegation that the infringing IP address was actually traced to a location within this judicial district. Nothing in the declarations Plaintiff submitted with its Ex Parte Motion explains what steps Plaintiff took to trace the IP address to a physical point of origin within this Court’s jurisdiction.

Moreover, neither Plaintiff’s Complaint nor its Ex Parte Motion establishes how Plaintiff was able to correlate Defendant’s IP address to Time Warner Cable. Plaintiff’s Complaint is accompanied by a chart that lists Time Warner Cable as the ISP and identifies the physical location as San Diego, California. (Compl. Attach. #2 Ex. A, at 1, ECF No. 1.) Plaintiff does not explain how the “physical location” was determined and whether the location indicated on the chart refers to the ISP or to the Defendant. Because Malibu Media has not offered any evidentiary support for these allegations, the Plaintiff has not met its burden to show that it made a good faith effort to specifically identify the Defendant as a person who can be sued in the United States District Court for the Southern District of California.

Note that not every judge in the Southern District denies Malibu Media’s fishing requests. For example, magistrate judges Jan M. Alder, William V. Gallo, Barbara L. Major do allow early discovery¹. Unlike in the Northern District, where all the trolling cases were assigned to the same judge, in the other three California districts judges were drawn randomly, which understandably led to rulings, which were opposite to one another.

Anyway, an uphill battle called Motion to Quash became a bit more realistically winnable for California troll victims, who should cite the following early discovery denials.

Featured comment

BuggyBumpers, 3/21/2016:

Whats interesting is that MaxiMind, for the US, claims between only a 67% and 84% accuracy rate when accuracy is measured within 50km. The accuracy for exact postal address is only 22%-46%.

Coverage

Updates

3/28/2016

All three cases have been dismissed today without prejudice (1, 2, 3). Indeed: why bother contesting the denials when the majority of judges rubberstamp ex-parte requests? Busy bees at 2 Biscayne Blvd don’t have time to cry over these silly stumbles.

4/10/2016

An important read on the geolocation tech:

4/26/2016

Today Magistrate Dembin denied early discovery in three more cases: CASD 16-cv-00429, 16-cv-00447, and 16-cv-00433.

5/03/2016

Yet another magistrate judge, Karen s. Crawford, joined the chorus and denied Malibu’s discovery motion in two cases (CASD 16-cv-00446 and CASD 16-cv-00442):

This Court cannot rely on plaintiff’s unsupported assertions regarding the use and accuracy of the geolocation technology. As no reliable evidence was presented to support the allegation that defendant is subject to this Court’s jurisdiction, the instant Motion must fail.

5/11/2016

More recently denied discovery motions from Magistrate Brooks:

Total of 12 as of today.

5/18/2016

The fourth CASD magistrate judge — Jill L. Burkhardt — joined the right side of the history: denied Malibu’s ex-parte motions in CASD 16-cv-00792 and CASD 16-cv-00784 today.

Magistrate Dembin denied yet another one — in CASD 16-cv-00452.

5/20/2016

Two more denied discovery motions today: in CASD 15-cv-02917 and 15-cv-00431 (Magistrate Crawford).

 


¹ Maybe there are more orders — both granting and denying early discovery, — and I could check all the dockets, but I’m very unhappy about my quarterly 3-figure PACER bills. I will be more than happy to do more research: the Donate button is on the sidebar.

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Discussion

11 responses to ‘Malibu Media well-oiled shakedown machine hits a roadblock: two California judges deny early discovery

  1. I am just hoping this little trend will continue in CA and gain traction elsewhere. I am sure the amount of temper tantrums being thrown in the Miami area was up significantly after these gems came out.

    One has to wonder if the Judges involved in some of these cases realize what this litigation is really about and has grown a tad tired of how these cases are playing out on their docket. Lord know Judges will only tolerate so much, just ask the Prenda gang when they pissed off Judge Wright. The Prenda gang still is taking a licking from the judicial beat down they receieved.

  2. It is entertaining to see Judges demand proof beyond ‘because we said so’ in these cases.
    So much of the MM scheme relies on ‘because we said so’ being accepted as an answer.

    Defendant did this ‘because we said so’.
    We found no evidence of the movies must be spoilation ‘because we said so’.
    We show a list of other files to infer the defendant is a huge pirate so they must have dl’ed our porn as well ‘because we said so’.
    We don’t have access to the evidence ‘because we said so’.
    We should be able to depose everyone and ask them about defendants porn habits ‘because we said so’.
    We totally didn’t ignore this case until the last second ‘because we said so’.

    I’ve never expected people to believe stories we tell ‘because we said so’, we show the evidence… how can some random kids on the internet understand the need to provide proof more than courts?

  3. If I’m reading the order correctly, the judge isn’t saying that GeoLocation technology isn’t good enough, just that they didn’t provide the evidence that they used it, and that the address resolved in the district. I think they can get by this hurdle with just another declaration or two.

    • I’m currently on a public wi-fi network. Just for grins I ran the internet facing address on iplocator.net which give results from 5 different geo-locator services. The results:

      2 returned “unknown”
      1 returned New York, New York
      1 returned Texas
      1 returned Owasso, Oklahoma

      None are correct.

      I also ran the IP in the first court order of this post and at lease the all agree it is in California, but listed 3 different Cities.

      I can’t understand why anyone would doubt such accurate technology.

  4. Brooks, Dembin, Crawford see them for the scumbag that they are. Unfortunately, Gallo, Huff, Stormes, Adler, Major still have the blindfolds on.

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