As stated before, one of the goals of the Trolls in running these cases is to make as little disturbance as possible in the courts and in the public view. One way of not gathering too much attention in the courts is to file multiple cases and not mark them as related to one another.
On 29 Jun 12, Morgan Pietz (The Pietz Law Firm), Manhattan Beach, CA, filed a Motion for Sanctions for Malibu Media (AKA: X-Art & Brigham Field) for repeatedly violating Local Rule 83-1.3 - not filing a notice of related cases. Notice of Motion_03614(CA) 10-1 10-2 The motion was filed on behalf of John Doe #5. Mr. Pietz sates that this not just a simple mistake, but
…that plaintiff Malibu Media, LLC (“Malibu Media”) willfully, recklessly, or with gross negligence, violated Local Rule 83-1.3, which is this Court’s Notice of Related Case Rule. Sanctions are an appropriate remedy for a party’s failure to comply with this District’s Notice of Related Cases rule.
This local rule (83-1.3) states that as soon as a case is filed (or later determined to be affected by this rule), an attorney must disclose to the court (via a filed notice, not a “check” box on a case cover sheet) that it is related to other cases in the district. Well what makes a case related you might ask? Well according to this rule, here are the criteria.
- To arise from the same or substantially identical transactions, happenings or events; or
- To involve the same patent, trademark or copyright, except where in one or both actions the same patent, trademark or copyright is joined with other patents, trademarks or copyrights which do not cover the same or substantially identical subject matter; or
- To call for determination of the same or substantially identical questions of law and fact; or
- Likely for other reasons to entail substantial duplication of labor if heard by different judges.
Here are some fun quotes from Mr. Pietz.
there are currently 20+ Judicial Officers in this District who may be asked to determine the validity and possible infringement (on the same legal theory) of the exact same 15 copyrights.
This is lunacy. Moreover, it is precisely to avoid this kind of duplication of judicial labor that the District enacted the Notice of Related Cases rule in the first place.
If you have any knowledge of copyright troll cases in general or specifically the Malibu Media ones, you can see that there should be many of these notices filed by the Troll in this district. For the 28 Malibu Media cases filed in the Central District of CA, guess how many have a notice of related cases filed with them? You would think Prenda Law has something to do with this, as the number is “Zero” (as of 29 Jun 12).
Now as soon as Mr. Pietz discovered this violation of this rule, he contacted Plaintiff’s attorney (Troll Kushner) and asked her to correct this error as soon as possible. Copy of emails For the CDCA, there are 28 Malibu Media cases filed during the Feb – May 2012 time frame. Troll Kushner wasn’t too happy to get the email from Mr. Pietz. Troll Kushner believes Mr. Pietz’s analysis is inaccurate, but did concede that two of the 28 cases do need a notice of related cases filed on them. Even after a more detailed explanation of how the rules does apply to all these cases (and a telephone discussion), Troll Kushner failed to file any notice for these cases. On 29 Jun 12, Mr. Pietz filed the motion and it is a whopper of a motion! I don’t think Troll Kushner was expecting such a detailed analysis on all the cases Malibu Media has filed in this district. Surprise surprise. He certainly wasn’t expect to possibly foot the bill for it either – $$12,179.50.
Beside spelling out clearly and concisely that Malibu Media’s actions are in gross violation of the local rules, Mr. Pietz also informs the judge on the overall abusive practices of copyright trolls, to include Plaintiff.
Notwithstanding the obvious similarities between all 28 of the copyright infringement cases it filed in this District, Malibu Media has not filed a single Notice of Related Case in any of its cases now pending here. Further, when pressed on this point by counsel for the Moving Party, Malibu Media took the position that it need not file any Notices of Related Cases, even for cases it admits are related, because, in a handful of these cases, Malibu Media checked the “related” box on the civil case cover sheet and provided case numbers. Counsel for the Moving Party specifically noted that this was insufficient, and asked Malibu Media for a second time to live up to its continuing duty to file actual Notices of Related Cases, but Malibu Media refused to do so. In fact, after initially admitting that two of its cases are indeed related because they involve the same “hash tag,” Malibu Media failed to actually follow through on its promise to file Notices of Related Cases for just those two cases. In order to conclude that Malibu Media was violating the Notice of Related Cases rule willfully, recklessly, or with gross negligence, the Court need only review the attached meet and confer emails. Exhibit C to Declaration of Morgan E. Pietz. However, the additional evidence, in the Declaration of Morgan E. Pietz of Malibu Media’s other “abusive litigation tactics,” serves to hit the point home.
In connection with such a hearing, it would be useful to hear from Malibu Media whether it has served a single defendant in any of the 200+ cases it currently has pending nationwide. It should be noted in this regard that of Malibu Media’s 200+ cases nationwide, 29 of them are over 120 days old, as of June 29, 2012. See Exhibit A to Declaration of Morgan E. Pietz.
In short, Malibu Media’s repeated violation of the Notice of Related Cases rule is no “inadvertent” error made in good faith. Rather, as detailed in the supporting memorandum, Malibu Media violated this rule on purpose, repeatedly, in a calculated attempt to try and fly under the radar, hedge its bets, and select judges perceived as giving favorable treatment. Further, this fits into a pattern of abusive litigation tactics by Malibu Media. Finally, even when called on this issue, and asked, twice, to fix the mistake, Malibu Media refused, even then, live up to its continuing duty to file Notices of Related Cases. The bad faith is apparent.
Mr. Pietz has requested a hearing for this matter be held on 30 Jul 12. The following are the documents that are attached to the Notice filed by Mr. Pietz. Please take a look at this motion and give me your thoughts. It is well written and strongly asserts its points. The court will have a hard time in simply ignoring the valid points raised and especially the simple fact of judicial economy in consolidating these cases obviously related cases. In my last declaration I file in the Eastern District of PA, I recommended a consolidation of these cases under a small number of technically literate judges. That isn’t an insult to judges. It is just such a technically complex type of cases and without a special understand, gross errors and a waste of judicial resources is bound to happen.
- 10-1 – MEMORANDUM IN SUPPORT OF JOHN DOE’S MOTION FOR SANCTIONS RE: MALIBU MEDIA’S REPEATED VIOLATIONS OF NOTICE OF RELATED CASES RULE 10-1
- 10-2 – DECLARATION OF MORGAN E. PIETZ RE: MALIBU MEDIA’S ABUSIVE LITIGATION TACTICS 10-2
- 10-3 – Spreadsheet showing 204 MM cases across the U.S. Cases #2-29, are the 28 filed in the CDCA. NONE of these cases have a filed notice of being related to other CDCA cases. 10-3
- 10-4 – Spreadsheet showing 28 MM cases, movies in each case, as well as the Judges assigned to these cases in CDCA. 10-4
- 10-5 – Emails between Mr. Pietz and Ms. Kushner 10-5
- 10-6 – Declaration of Tobias Fieser for John Doe #5 10-6
- 10-7 – Cover letter to Judge Audrey Collins, Chief District Judge, CDCA 10-7
- 10-8 – Proposed order granting motion for sanctions and attorney fees 10-8
So what is Mr. Pietz and John Doe #5 seeking?
- Monetary sanctions to be determined by the court.
- Costs and attorney fees of $12,179.50 for the preparation of the motion.
- Order Malibu Media and its attorneys to immediately file a Notice of Related Cases in each of the 28 mass copyright infringement actions it has filed – and to comply with L.R. 83-1.3 for future cases
- Stay the return date the ISP has to provide Plaintiff the true identity of John Doe #5.
- Consolidate all 28 Malibu Media cases to one or two judges.
Also requested was that this Court (or any other) consider the following.
…setting a hearing on an order to show cause, on an expedited timeframe, as to whether the return dates for all subpoenas authorized by the Courts of this Judicial District should be stayed, and Malibu Media’s further settlement solicitation efforts prohibited temporarily, pending consideration of regular noticed motions affecting the rights of the John Doe defendants.
I don’t know the general view of the Central District of CA, on these types of cases, but it isn’t going to be easy for them to simply ignore the fact of what Plaintiff has done and will continue to do. Note: especially since Mr. Pietz also sent a copy of the motion cover letter to the Chief Judge and the 30 judges presiding over the Malibu Media cases.
Nice Try Troll Kushner and Malibu Media. Your efforts to fly low and under the radar didn’t work. You are just a “Slow Low Aerial Target.”