Doe Makes Counterclaim Against Third Degree Films, Inc. (Troll Mike Meier) and Seeks 20 Million Dollars in Damages

Well the DC courts are starting to heat up.  Thanks Raul for providing the link to this counterclaim by Doe defendant Bailey Zwarycz, Third Degree Films, Inc., v. Does 1-152, case # 1:11-cv-01833-BAH, District of Columbia.  This case is very busy and I apologize if I missed anything.  Please post a comment if you find anything of interest.  I would also recommend that if you are Doe in this case (even if you already settled), please contact John Lowe, attorney for Bailey Zwarycz, as they have asked the court for this information should they win.

This case was opened up by Mike Meier, The Copyright Law Group, PLLC, on 18 October 2011.  I t is the same boilerplate copyright troll complaint as we have seen before.  Meier did make it clear that the Copyright Registration was filed within three months of the first publication of the Motion Picture (“All About Kagney Linn Karter”), which was April 26, 2011 (Plaintiff is then entitled to statutory remedies of the U.S. Copyright Act).  

The Troll only went after each defendant for the single count of Copyright Infringement.  In other complaints, there have been other charges, such as conspiracy and negligence.  There is also a verification statement from Meier, in which he swears to the following information:

  • That the information provided by Jon Nicolini, Copyright Enforcement Group (CEG), is accurate.
  • That he ”personally spot checked the purported location of the IP addresses of the alleged infringers in Exhibit A…”
  • That he personally check the copyright status of the movie in question.

The complaint has the following exhibits

  • Exhibit A – Table of Last-Observed Infringements by Defendants of Third Degree’s Copyright in the Motion Picture “All About Kagney Linn Karter,” Copyright Reg. No. PA0001745129. 
  • Exhibit B – Technology Declaration of Mr. Jon Nicolini, explaining the technology used to identify the alleged copyright infringers.  
  • Exhibit C – Copyright registration record of the Motion Picture at issue.

As could be expected, the DC court allowed the Troll to serve the subpoena on the ISPs for Doe subscriber information.   After receiving the subscriber information, the Troll sent out settlement letter (CLG_Settlement_Ltr_01833). 

Here is a copy of the case docket from PACER on 16 Mar 12.  (Docket_16Mar12).  Lots of activity to include counterclaims and replies, etc.  Note: there is Five True Name defendants listed, but it doesn’t show that any have actually been served.  Here is an order from the court showing he denied Plaintiff’s request for more time to serve them. Denied

MINUTE ORDER (paperless) The plaintiff’s 23 Amended Motion for Leave to File Amended Complaint is GRANTED. Defendant Zwarycz’s 24 Motion to Extend the Time for Filing Her Opposition to the Plaintiff’s Motion to Dismiss Counterclaims is DENIED based upon this defendant’s statement in her Reply brief that she seeks to withdraw the motion. The plaintiff’s request for sanctions against defendant Zwarycz’s counsel is DENIED. The plaintiff’s 26 motion for a 120-day extension of time to name and serve defendants is DENIED IN PART since defendants have now been named in this case and are entitled to expeditious resolution of the claims against them; and no motion to compel speedier subpoena responses from Internet Service Providers has been filed. The plaintiff shall name and serve defendants by April 6, 2012. Signed by Judge Beryl A. Howell on February 21, 2012. (lcbah1) (Entered: 02/21/2012)

What I will post right now as I really enjoyed reading it, is the “Answer and Counterclaim of Bailey Zwarycz, AKA John Does 116 & 117, 1 Feb 12.  Zwarycz is represented by John Lowe, John Lowe P.C., Bethesda, MD.

Zwarycz_Answer_Counter_01833(DC)

Zwarycz denies the allegation of copyright infringement and states that during the time in question, her Wireless Router was not password protected and anyone could have used it without her knowledge. Decl_Zwarycz_01833

Zwarycz makes the following counterclaims against Plaintiff:

  • Abuse of Legal Process
  • Defamation

In support of these claims, Zwarycz provides the following evidence:

Declarations from Stephen Hendricks, Computer technician and COMCAST employee (Decl_Hendricks_01833)

Declaration of John Simek, Sensei Enterprises, Inc., an Information Technology, Information Security, and Computer Forensic firm (Decl_Simek_01833)

Both of these declarations refute the information provided by Jon Nicolini, CEG, stating that his assertions are blatantly incorrect.

  • Hendricks states “there is no way that Plaintiff could make a good faith allegation in its complaint that John Doe 116 and 117 – namely Bailey Zwarycz, — willfully and intentionally downloaded, copied, and distributed Plaintiff’s film.”
  • Simek stated he disagrees with much of the information/allegation in the complaint and declaration of Jon Nicolini.  He states it is impossible for Plaintiff to be able to ascertain the Identify of the actual infringer with only the public IP address OR that the John Doe willfully and intentionally downloaded/shared the movie in question.  Simek also conducted a forensic examination of Zwarycz’s hard drive and found no indication the movie or BitTorent software ever resided on her system or was deleted. 

Zwarycz makes the following request of the court:

  • Dismiss the complaint against her with prejudge   
  • Compensatory damages of 10 million dollars.
  • Punitive damages of 10 million dollars.
  • The identities and addresses of all 152 Does as provided by the ISPs.
  • Attorney fees, expenses, and costs.
  • Other relief as she may be entitled.

The first date of interest on the docket is 6 Apr 12, when Plaintiff must serve the summons on the Doe defendants.  Most likely Meiers planned to dismiss all the Does prior to the suspense.  He would probably write something to make it sound like he did the court a favor in doing this.  Only one problem is now that Zwaycz has made a counterclaim, he has to address this before he can cut and run.  Good luck on that one.  The luck of the Irish isn’t going to help you here.  More to come on this one for sure ;)

Well, Saint Patrick’s Day is almost upon us and I wish all the Does out there a wonderful weekend. 

DieTrollDie :)

About John Doe (DieTrollDie)

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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16 Responses to Doe Makes Counterclaim Against Third Degree Films, Inc. (Troll Mike Meier) and Seeks 20 Million Dollars in Damages

  1. Raul says:

    A lovely read! DTD-Wishing you a wonderful weekend as well.

  2. alwaysfightback says:

    All these new developments can make you feel empowered.

    Thanks for all the support and updates you have provided many of us.

    Another very nice read.

    2 million, hope they get every penny of it or at least do a lot of serious damage to the Toll.

    What goes around…

  3. Raul says:

    I believe it was John Steele who first used the term “Pyrrhic Victory” in the context of the Troll v. Doe litigation. Well, well here is a VERY nice example of a Pyrrhic Victory in favor of the Does which I will refrain from commenting on insofar as it may make for an interesting post for DTD who is much better than I at putting developments like this into an overall context https://ecf.casd.uscourts.gov/cgi-bin/HistDocQry.pl?118783131471553-L_1_0-1

  4. Raul says:

    Actually it is a Pyrrhic Victory for the Troll but the Does…… .

  5. DieTrollDie says:

    Thanks Raul! Yes, it starting to look worse and worse for the trolls. When the DC court starts to fall on them I will be very happy. Still, One day at a time. ;) I will put something together soon. I have some computer maintenance issues to attend to shortly.

  6. Barn Door says:

    Heir Troll Meiers just dropped all the Does but Bailey like a bad habit… didn’t see that coming, oh wait yes we did.

  7. Raul says:

    Or making it up?

    • Joe says:

      I have reviewed all of the new cases posted on RFC Express today ( Millenium TGA in S Cali, Patrick Collins in AZ, and SEO in AZ ). They should all be avail on Recap. If not, please post, because that means I did not set up my Recap plugin correctly. I just skimmed, but doesn’t look like anything new. I’m not sure why they are still trying the same approach in AZ after judge ruled Joinder requires all IP hits to be at the same time.. but they are.

  8. Pingback: Torrents and Rule 20 Joinder: A Burgeoning Issue in the District Courts | JETLaw: Vanderbilt Journal of Entertainment & Technology Law

  9. Raul says:

    MINUTE ORDER (paperless) As stated during the telephonic conference held with the parties regarding discovery disputes, the deposition of the plaintiff’s Fed. R. Civ. P. 30(b)(6) witness is hereby postponed pending resolution of the [56] Plaintiff’s Rule 41 Motion to Dismiss. If the defendant wishes to proceed with the deposition, briefing of the plaintiff’s pending motion must be complete by noon on May 14, 2012. The Court will then endeavor to resolve the plaintiff’s [56] motion to dismiss prior to the scheduled May 15, 2012 deposition date. This will require the defendant to file an opposition to the plaintiff’s motion to dismiss no later than 5:00 PM on May 11, 2012. The plaintiff may file a reply by noon on May 14, 2012. To facilitate the potential May 15, 2012 deposition, the plaintiff is directed to provide the defendant with details regarding the name, title, and location of the plaintiff’s Rule 30(b)(6) witness. Signed by Judge Beryl A. Howell on May 9, 2012. (lcbah1)

  10. Raul says:

    The appeal of the dismissal of the counterclaims looks to be fully submitted:

    General Docket
    United States Court of Appeals for District of Columbia Circuit
    Court of Appeals Docket #: 12-7052 Docketed: 06/14/2012
    Nature of Suit: 3820 Copyright
    Third Degree Films, Inc. v. Does, et al
    Appeal From: United States District Court for the District of Columbia
    Fee Status: Fee Paid
    Case Type Information:
    1) Civil Private
    2) Private
    3)
    Originating Court Information:
    District: 0090-1 : 1:11-cv-01833-BAH Lead: 1:11-cv-01833-BAH
    Trial Judge: Beryl A. Howell, U.S. District Judge
    Date Filed: 10/18/2011
    Date Order/Judgment: Date NOA Filed:
    05/10/2012 06/06/2012
    07/16/2012 Open Document ENTRY OF APPEARANCE filed [1383865] by John C. Lowe and co-counsel Robert T. Hall on behalf of Appellant Bailey Zwarycz. [12-7052] (Lowe, John)
    07/16/2012 Open Document DOCKETING STATEMENT FILED [1383866] by Bailey Zwarycz [Service Date: 07/16/2012 ] [12-7052] (Lowe, John)
    07/16/2012 Open Document STATEMENT OF ISSUES FILED [1383867] by Bailey Zwarycz [Service Date: 07/16/2012 ] [12-7052] (Lowe, John)
    07/16/2012 Open Document TRANSCRIPT STATUS REPORT [1383870] by Bailey Zwarycz [Service Date: 07/16/2012 ]. Status of Transcripts: transcripts needed for the appeal have been ordered, but not all transcripts have been received. Next APPELLANT transcript status report due 08/15/2012. [12-7052] (Lowe, John)
    07/16/2012 Open Document UNDERLYING DECISION IN CASE submitted [1383871] by Bailey Zwarycz [Service Date: 07/16/2012 ] [12-7052] (Lowe, John)
    07/20/2012 Open Document RESPONSE IN OPPOSITION FILED [1384731] by Bailey Zwarycz to motion to dismiss case [1383679-2], motion to dismiss case for lack of jurisdiction [1383679-3], motion to dismiss case as frivolous [1383679-4], motion for attorney fees [1383679-5] [Service Date: 07/20/2012 by CM/ECF NDA] Pages: 16-20. [12-7052] (Lowe, John)
    07/23/2012 Open Document RESPONSE IN OPPOSITION FILED [1384930] by Bailey Zwarycz [Service Date: 07/23/2012 by CM/ECF NDA] Pages: 16-20. [12-7052] (Lowe, John)
    07/25/2012 Open Document REPLY FILED [1385695] by Third Degree Films, Inc. to response [Service Date: 07/23/2012 by CM/ECF NDA] Pages: 1-10. [12-7052] (Meier, Mike)
    07/30/2012 Open Document REPORT FILED [1386560] by Third Degree Films, Inc. Status of Transcripts: Final [Service Date: 07/30/2012 ] [12-7052] (Meier, Mike)
    07/30/2012 Open Document CORRECTED TRANSCRIPT STATUS REPORT [1386562] by Bailey Zwarycz [Service Date: 07/30/2012 ]. Status of Transcripts: Final – All transcripts needed for the appeal have been completed and received. [12-7052] (Lowe, John)

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