“Fly Low And Avoid The Radar” – Malibu Media LLC and the 28 Related Cases in the Central District of CA

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.

And

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. 

And

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.

And

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.”

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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31 Responses to “Fly Low And Avoid The Radar” – Malibu Media LLC and the 28 Related Cases in the Central District of CA

  1. Such a relief: I was going to write about it today, but seriously pressured at work. Thanks ;) This news is too important to postpone. Instead I’ll concentrate on IL Supreme Court decision that just killed Lightspeed’s frivolous case.

  2. DieTrollDie says:

    Thanks! Can’t wait to see and read more about the Death of Lightspeed Hacking. Hey John! Kiss My @#$! ;)

  3. Anonymous says:

    Actually it’s “Ms. Kushner” not “Mr. Kushner”. ;) She’s also filed lots of Malibu Media lawsuits in CASD and CAED — I assume she’s just acting as a front for Prenda.

    • DieTrollDie says:

      My mistake – stand corrected. Thank you very much.

      DTD :)

    • No, not Prenda. Prenda employs their in-house “experts,” not IPP International. And extortion calls are handled by different people.

    • Janedough5000 says:

      Do you think that this will play in effect for Malibu Media cases filed in the Eastern District Court of California? Like you stated, Ms. Kushner is the one who filed these cases in the Eastern District of California.

      • followtmblr says:

        That’s a good question. I hope we get a response soon.

      • doecumb says:

        Pietz’s letter was “only” sent to the judicial officers of the Central District of California courts.
        Does, in the Eastern District of California, especially relating to the Malibu Media cases, could consider:

        (1) Contact Mr. Pietz or having their lawyer do so
        (2) Sending a note with copies of Mr. Pietz’s letter (or quotes from it) to the chambers of California Eastern District judges.
        (3) Including Mr. Pietz’s arguments in their own motions

        The trolls are hoping that different Federal judicial districts in the same state do not communicate with each other. In California, the 2012 forum shopping of Malibu Media cases avoids the California Northern district because of repeated troll setbacks there.

  4. Raul says:

    Odds are quite good that Troll Lipscomb will file a motion to appear pro hac vic so as to handle the hearing.

    Mr. Piet’z motion is a very clever counteroffensive, expect to see it used by other Doe Defenders in other jurisdictions.

    • doecumb says:

      There have been 65 cases in California for porn purveyor Malibu Media LLC, divided among the Central, Eastern and Southern districts. The cover letter that DTD links to appears to be sent only to California Central district judicial officers.

      Obviously, Does in the California Eastern or Southern district cases by Malibu Media, or their lawyers may want to contact Mr. Pietz and the Pietz Law Firm.

      BTW, RFC Express lists 33 cases filed for Malibu Media in CACD rather than the 28 referred to by Mr. Pietz. Perhaps Mr. Pietz had sent his letter to Judge Collins in the CACD before the listings for the 6/27/12 were accessible on the web. Ms. Deborah Bari Baker of Lipscomb Eisenberg and Baker filed 5 cases for porn purveyor Malibu Media LLC on 6/27.

      • doecumb says:

        So, being admitted to practice in California, Ms. Deborah Bari Baker of Lipscomb Eisenberg could respond to this letter, perhaps under advisement of her lawyer partner M. Keith Lipscomb.

        However, if she did, that would bring attention to the fact that Pietz may not have included, in his request for motion by Judge Collins, the 5 cases that Ms. Baker filed for Malibu Media on 6/27/12.

  5. trollfighter says:

    Malibu Media is getting busy in Colorado (Jason Kotzker attorney). Come see what’s happening over here.

    • Raul says:

      Been keeping an eye on the CO situation, hoping that either Judge Hegarty grows weary of the enterprise or that Judge Martinez finds a way to outflank the status quo.

  6. Subscribe says:

    Subscribe

  7. Watching the fall says:

    It is lovely to watch this poetic justice play out. Denying MTQ on technical grounds is just one side of the story. Now their own ignorance, or rather failing to follow them, of the rules of the court, i.e., technicalities, is coming to bite them in the proverbial back side. It is just lovely to be on the sidelines witnessing all this.

    The “cherry on the top” would be to see class actions brought against these litigation. I can just see some law firms advertisements on the ‘after 11 pm” time slots asking for all effected individuals to contact Law Firm X to join and become a party to a class action suite.

    Soon enough that may come to play, and won’t it be an ugly moment for the trolls?

    Surely, they had to know that such antics would not be tolerated for long!

  8. DieTrollDie says:

    Thanks Raul. 2:12-cv-03615 is one of the cases Mr. Pietz mentions as being part of the 28 total Central District CA cases. — http://www.rfcexpress.com/lawsuits/copyright-lawsuits/california-central-district-court/95012/malibu-media-llc-v-john-does-1-10/summary/

    DTD :)

    6/26/2012 (2:12-cv-03615)
    – MINUTES (IN CHAMBERS) ORDER STAYING RESPONSE TO PLAINTIFF’S THIRD-PARTY SUBPOENAS TO CHARTER COMMUNICATIONS, ROAD RUNNER, AND VERIZON INTERNET SERVICES by Magistrate Judge Jay C. Gandhi: On June 22, 2012, defendant John Doe #2 anonymously filed a “Motion to… Quash Subpoena” (“Motion”). In light of the Motion and a potential response from the ISPs before the Court’s ruling on the Motion the Court ORDERS AS FOLLOWS: (1) The ISPs are not to respond to any subpoenas issued pursuant to the Court’s May 16, 2012 Order pending further order of this Court; (2) Plaintiff is to immediately inform the ISPs regarding this Order; and (3) Plaintiff shall file an opposition or statement of non-opposition to the Motion to Quash by July 9, 2012. IT IS SO ORDERED. 8 . (bem) (Entered: 06/26/2012)

  9. Pingback: Judge Wright is so right: copyright trolling is “essentially an extortion scheme” « Fight Copyright Trolls

  10. john doe says:

    FYI: Malibu Media is suing John Does in DC District Court to get names of Verizon customers (filed in early June, 2012). Apparently anyone who downloads a file that has several X-Art files is at risk.

  11. Jdoeee says:

    I recently received one in the mail and my case is one of the 2-29 on the spreadsheet. Im not quite sure what to do, should I file for an MTQ? Whats the best approach to this?

    • DieTrollDie says:

      It really depends on your particular situation. You will know best. Sorry but there is no easy answer to this. My personal suggestion (If you can stand any heat that may arise from it), is to file a motion. Bottom line: Your Troll is not going to take anyone to actual trial unless they have some solid evidence & the public IP address isn’t good evidence.

      DTD :)

      • Jdoeee says:

        Thank you. I’ve been researching a lot about the what my next step should be, and I read in many different articles that the court severs Does 2-xx. If I am Doe #1 does this put me in a bigger risk of being called out?

      • DieTrollDie says:

        I wouldn’t say being Doe #1 makes you a bigger target, but if Does #2-XX are severed, the Troll may want to try and save face push and harder for you to settle. It will still come down to weak evidence (Public IP address) and the fact that if they do name and sever you, they could face counterclaims. If they cannot get you to give them additional evidence, they are in a tough position. The Troll have been making statements that they know a good percentage of ISP subscribers are NOT the infringers.

        DTD :)

  12. that anonymous coward says:

    Ok follow me for a moment… I have a court doc PDF that I think I got from this posting, so I am posting here.
    It explains how IPP gathers the information, and something has been bothering me for days. Typically when something bothers me, there is something there but I don’t always see it clearly. So when in doubt… ponder outloud with other smart people.

    IPP claims to use the NTP service in windows and a 3rd party program to keep them all up to date.
    - Why are they using a crappy 3rd party NTP program? They post the website address and the website looks like its from 1980. Think they have a pile of licenses for that program?
    - Don’t NTP servers have limitations on how many times you can nail their server in a timeframe to keep them from being knocked offline?
    - How do they explain how they got a copy of the “pirated” file to compare the download to? You can’t build it from the original, well unless your the original source of the “pirated” file. So how do they justify joining a swarm to get a copy, which means they are facilitating the infringement of their customers precious porn?
    - IIRC they claim to connect to each IP they record to “prove” it was actually there, how can their system handle the bottleneck of that many packets flooding in on the drives and still have bandwidth left for NTP packets to arrive in a timely fashion?

    I apologize if this seems disjointed, something in their explanations is just not hitting on all cylinders… when in doubt… crowdsource.

  13. Juan Coneja says:

    I am unfortunately a Doe in one of the 28 cases. If the court has ordered an “Order to Show Cause” by the 23rd (for all consolidated case), yet I am to be identified by my ISP on that date, what’s my best option at the moment??

  14. Anonimosity says:

    Unfortunately Mr Peitz hearing is moot. Check Doc #21 on http://ia700803.us.archive.org/4/items/gov.uscourts.cacd.525381/gov.uscourts.cacd.525381.docket.html
    Fortunately if the troll doesn’t file anything by July 23rd he judge might dismiss the cases. At least looks like he’s on the Does’ side.

  15. nancy says:

    I recieved a letter from my ISP stating we downloaded a movie and are being named to Malibu LLC I have wireless internet and have never downloaded a movie in my life. My husband can’t even turn on a computer! This is scary to us, what can they do to us for this? Should we just wait and see if they contact us? I would greatly appreciate any advice as I just don’t know what to do and am having many sleepless nights over this. Thanks so much!

    • DieTrollDie says:

      Please see the “Newbie/Noob” page for some good information on what is going on. First thing, don’t call the Troll and try to explain how you didn’t do this. This don’t care and will only claim you are negligent and responsible to pay them – Don’t beleive it! The easiest thing to do is ignore the Troll and if you happen to get on the phone with them – give them the Richard Pryor Response (RPR) and hang up. Have someone check you Wireless Router and record any unknown system that have been using your Internet connection. Put it in a file for “just In Case.” For over 99.999% people, you will never be named and severed with a summons/complaint. The goal of the Trolls is to create Fear and get people to pay up.

      DTD :)

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