Two Strikes and You’re “Out!” – FRCP 41 & Copyright Trolls

TrollBall

Anyone who knows me knows I’m not a huge sports person.  Well I got back into baseball.  Well actually I will call it “Trollball.”  This sad game Copyright Trolls wish to play is serious, but also a cruel joke of sorts.  A keen legal mind pointed me in the direction of a Federal Rule of Civil Procedure (FRCP) that may be of interest to those of us facing possibly legal action from Copyright Trolls (Trollball).  I will caveat this posting that I’m a layman and if I get any legal aspects wrong I apologize in advance.  I look forward to any feedback from our legal minded friends out there.  

Federal Rule of Civil Procedure 41

Rule 41. Dismissal of Actions

(a) Voluntary Dismissal.

(1) By the Plaintiff.

(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:

(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or

(ii) a stipulation of dismissal signed by all parties who have appeared.

(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.

(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.

(c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant’s voluntary dismissal under Rule 41(a)(1)(A)(i) must be made:

(1) before a responsive pleading is served; or

(2) if there is no responsive pleading, before evidence is introduced at a hearing or trial.

(d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court:

(1) may order the plaintiff to pay all or part of the costs of that previous action; and

(2) may stay the proceedings until the plaintiff has complied

Most of you are probably saying, “OK, so what?” 

The Trolls dismiss Doe defendants all the time, some with prejudice (after paying the settlement demand) and others without prejudice.  The common view is the dismissal without prejudice is almost worthless, as the Troll can just refile at his leisure.  This may be technically correct, but additional parts of Rule 41 make it a bit more interesting. 

Many times single Doe defendants have been dismissed from mass cases by a Troll because they filed a motion to quash/dismiss.  This dismissal allows the Troll to avoid addressing the issues in the motion.  It also allows the Troll to refile against the single Doe as a scare tactic.  Courts have also dismissed large numbers of Doe defendants from cases when it was determined that joinder was improper.  It is also common for the Trolls to dismiss all remaining Does from old cases they are unable get the court to grant time extensions to.  

A Key Portion Of Rule 41 Is Section (a)(1)(B):

(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

The first part states that unless stipulated, dismissals are without prejudice.  OK, straight forward.

The second part is where it gets interesting.  This part clearly states that if Plaintiff dismisses an action that they “previously” dismissed (ANY Federal or State action/case) based on the same issue, THEN the dismissal acts as an “adjudication” on the merits.  That means the case is done and over, as if the court ruled – i.e. a dismissal WITH prejudice. 

Case Example

Prenda (Paul Duffy) files a mass John Doe case in the DC court; I will use 1:11-cv-02176, Millennium TGA Inc. v. Does 1-939, filed on 7 Dec 11.  Because they don’t like the judge it is assigned to, Prenda voluntarily dismisses the case on 16 Dec 11.  This dismissal is “Strike One.”  Prenda goes on a Forum shopping spree and refiles the same case in TX – 4:11-cv-04501, Millennium TGA Inc. v. John Doe, filed on 20 Dec 11.  Now since Prenda has one strike (previous dismissal) on this case, the trick is to get them to do it again.  If you are a Doe in this case (over 900 of you), Prenda’s only option is to name you and issue a summons FOR THIS CASE.  If they dismiss you and refile a new case, all the Doe has to do is motion the court and point out this fact that THE SAME CASE has previously been dismissed by Plaintiff TWO times and in accordance with FRCP 41 (a)(1)(b), the matter is “adjudicated on its merits” – lack of them/with prejudice.  Now if Prenda doesn’t dismiss you, their only option besides harassing you is to issue a summons for this case.  As there are 900 other Does involved in this case, you can see what a nightmare it would be for the court and Prenda to manage.  Hell, I would love to see the process-server fee for 900 defendants.  LMAO!  Even if it was only 20 Does who have attorneys, the mess and chaos it would cause is tremendous.  Let’s not forget that even the Does who settled could possibly be called back into this, as they are likely to have relevant information concerning the swarm they allegedly took part in.        

ANY State Or Federal Action Is Relevant

As Rule 41 deals with any Federal or State action, the State Pure Bill of Discovery cases (AZ, FL, & IL) are also part of this.  As these cases are primarily designed to get the ISP subscriber information, they are starting off with “One Strike” against them.    

Strike Two Tactics

Here is where it can get tricky.  I will give you a quote from one of my favorite movies, The Hunt for Red October – “The hard part about playing chicken is knowing when to flinch.”

If the Troll files a new mass Doe case in a different jurisdiction with the same allegations and defendants, file your motion to quash in hopes he will voluntarily dismiss you – Strike two.  Even if the motion is denied, the Troll now has to name and serve all the Does in a large case.  He can’t dismiss the Does and seek single cases, because that would be the second dismissal – Adjudication (dismissed with prejudice).  The Troll doesn’t want to try to run a mass trial and it is doubtful the court would allow it anyway.    

If the Troll files a single case against you (named) based off the original State or Federal case, file a motion to dismiss and make them work for their money.  As the Troll has named you in the case, the 120 day time limit to serve a summons is now running.  If they fail to serve a summons on you by that time, file a motion to dismiss for failure to abide by FRCP 4(m) and FRCP 41 (b) – Strike two.

If the Troll actually serves you with a summons, hire a good IP attorney, answer the complaint, and make counterclaims against Plaintiff.  Now Plaintiff is locked into the case and unless they have some good evidence (public IP address doesn’t count), they have to hope the initial deposition of you discloses something they can use.  If it doesn’t, they are likely to settle with you under a confidentiality agreement – or at least try to.  If you decided to allow the Troll to voluntarily dismiss you, then “Strike Two.”  I personally wouldn’t do this without getting Plaintiff to at least cover all your legal expenses.                 

Rule 41 (b) Involuntary Dismissal; Effect

Rule 41 (b) covers involuntary dismissals of a named defendant.  John Doe defendants are unlikely to be covered by this.  In Rule 41 (b), if Plaintiff fails to prosecute a named defendant, follow FRCP 41, or a court order, then the defendant can motion the court to dismiss the action/claim against it.  The dismissal acts as “an adjudication on the merits” – lack of them/dismissal with prejudice.

I know that some of the smarter Trolls already knew about the Rule 41 issues, but now that it is getting out in the open, the game is getting interesting.

“Play Ball!”

DieTrollDie :)

About 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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17 Responses to Two Strikes and You’re “Out!” – FRCP 41 & Copyright Trolls

  1. Excellent. Not that it is new information, but it has been put in layman’s terms perfectly.

    Small issue: you did not mention about Rule 41(a)(3), but I did it for you on a certain date :)

  2. I think it’s very funny how the two of you work off of each other. No doubt, you made FRCP 41 very easy for the non-attorney to understand. The Millennium TGA DC/TX mistake doesn’t happen frequently, but it has happened enough times that it is important to be aware about. I remember dealing with this issue in Dunlap Grubb & Weaver, PLLC’s West Coast Productions, Inc. cases (formerly Kenneth Ford’s West Virginia cases). While this does not apply to every case, it does apply enough for people to keep an eye out for it. If you get an ISP subpoena letter for one case, then you get a second ISP subpoena letter where the plaintiff is suing you for the same thing in another court, that’s a red flag that this issue is relevant.

    • DieTrollDie says:

      Thanks Rob. I haven’t seen too many instances of this, but thought it was a good point to raise. As it seems Prenda and some of the other Trolls are back to large cases (One main Doe & loads of co-conspirators – many NOT is the courts’ jurisdiction) and the State Pure Bill of Discovery, having one strike to start off is a good thing.

      DTD :)

  3. Subscribe says:

    (subscribe)

    Great posts lately

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  10. Pedro Santiago says:

    What if the plaintiff dismisses without prejudice, refiles and due to lack of prosecution the court dismisses the second complaint without prejudice? Does Rule 41 apply? If plaintiff files again, can a motion to dismiss under Rule 41 be filed?

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  14. Another vital portion of Rule 41 is subsection (d), that allows the re-sued defendant to file a motion to stay the newly-filed lawsuit until the plaintiff pays the defendant’s costs of defending the first lawsuit. Many but not all courts will include the attorney’s fees for the prior action as “costs” recoverable under Rule 41.
    (d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court:
    (1) may order the plaintiff to pay all or part of the costs of that previous action; and
    (2) may stay the proceedings until the plaintiff has complied

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