In September 2015 fresh-out-of-school attorneys Brenna Erlbaum and Brian Heit took the dollar bill bait and subscribed to a reputation-killing job of doing errands for an international copyright shakedown cartel Guardaley / Lipscomb / Malibu Media. Heit and Erlbaum signed 313 complaints in California since then, 178 in the Northern District alone.
Although all the Malibu complaints and motions are obviously written in the Miami Troll Center, the kids have been super busy doing certain paralegal jobs: filing those documents, forwarding emails to and from defense counsel, and even traveling to San Francisco to play lawyers in Judge Alsup’s courtroom.
Those who watch Malibu Media / X-Art cases surely noticed a pattern: after filing a lawsuit, the cartel waits exactly one month before moving for ex-parte discovery, which I can’t explain: in general, the trolls delay proceedings whenever it is possible, which is understandable — when a FUD sword hangs over the defendant’s head, a delay translates into increased probability of settlement. Yet I don’t know what the trolls gain from delaying the initial discovery motions.
The batch of 15 lawsuits field on 12/27/2015 fell out of the pattern: apparently, the youngsters overlooked their usual motion date, being overwhelmed by sheer volume of filings (also, some defendants fought back, increasing the load).
With no disposable paralegals to blame, the trolls decided to simply file the motions on the last day of the 90-day Rule 4(m) period — 3/28/2016 — in a hope that the judge would not notice the sloppiness and bad faith. It was a long shot, since Judge Alsup is a meticulous judge. Moreover, he recently expressed skepticism regarding the merits of the Malibu Media money-making scheme:
[…] the mere fact that an individual is the subscriber for a particular IP address is weak evidence that he, rather than a third party, actually committed the alleged infringement even if the alleged infringement occurred habitually. Malibu Media faces significant hurdles when it comes to proving its case on the merits […]
Of course, Judge Alsup noticed, and he was not amused:
Plaintiff commenced this action on December 27, 2015. Pursuant to Rule 4(m), the deadline to effectuate service was March 28, 2016. Plaintiff filed its motion for leave to file a subpoena on defendant’s Internet service provider on March 28, meaning it would be impossible to serve the defendant before the Rule 4(m) deadline. Plaintiff offered no explanation for its delay in bringing this motion.
Plaintiff knew the Rule 4(m) deadline from the outset of the case. (Plainly, its decision to file this motion at the deadline was no accident.) Plaintiff will not be allowed to automatically extend the deadline to effectuate service indefinitely by seeking leave to serve a third party subpoena at the last possible minute. Counsel should have acted promptly and diligently, and going forward, plaintiff must seek leave to serve such subpoenas within the first thirty days after a case is filed.
The following cases have been dismissed on 4/4/2016:
- Malibu Media LLC v. JOHN DOE 126.96.36.199 (CAND 15-cv-06060)
- Malibu Media LLC v. JOHN DOE 188.8.131.52 (CAND 15-cv-06062)
- Malibu Media LLC v. John Doe 184.108.40.206 (CAND 15-cv-06063)
- Malibu Media LLC v. John Doe 220.127.116.11 (CAND 15-cv-06064)
- Malibu Media LLC v. JOHN DOE 18.104.22.168 (CAND 15-cv-06065)
- Malibu Media LLC v. JOHN DOE 22.214.171.124 (CAND 15-cv-06066)
- Malibu Media LLC v. JOHN DOE 126.96.36.199 (CAND 15-cv-06067)
- Malibu Media LLC v. JOHN DOE 188.8.131.52 (CAND 15-cv-06068)
- Malibu Media LLC v. JOHN DOE 184.108.40.206 (CAND 15-cv-06069)
- Malibu Media LLC v. JOHN DOE 220.127.116.11 (CAND 15-cv-06070)
- Malibu Media LLC v. JOHN DOE 18.104.22.168 (CAND 15-cv-06071)
- Malibu Media LLC v. JOHN DOE 22.214.171.124 (CAND 15-cv-06072)
- Malibu Media LLC v. John Doe 126.96.36.199 (CAND 15-cv-06073)
- Malibu Media LLC v. John Doe 188.8.131.52 (CAND 15-cv-06074)
- Malibu Media LLC v. JOHN DOE 184.108.40.206 (CAND 15-cv-06075)