26 July 2012 Update
After posting my initial story, I obtained another similar order (Dismiss_5_Does_01522(CO)) and others are likely to following this one. This order is for case 1:12-cv-01522 (Malibu Media v. BILL S. FELITTI, KATHI PRUSIA, LIUEUAN MA, SHAWN MORRIS, MARK EHR, and MATT FRERICH). Docket Complaint_01522(CO)
I will have to look into this case, but it appears to be the second one for these defendants. I assume they were part of a John Doe case and after not settling with Plaintiff/Troll Kotzker, a new case was opened with their true names as defendants. If that is so, then PRUSIA, MA, MORRIS, EHR, and FRERICH are free and clear of this mess. This would be the second dismissal for them and IAW FRCP 41, it is adjudicated. See my related post on FRCP 41. Also of note is that even when the defendants were named in the case, Troll Kotzker didn’t issue a summon for them. That just shows he doesn’t want them to answer the complaint and possibly make counterclaims against Plaintiff. This means he knows his cases are weak and it isn’t worth a fight unless they have some ‘good’ evidence to back up their claim. They don’t!
Review Of The Order
Pretty straightforward order in which Judge Martínez tells Plaintiff he will not dismiss the action, but is severing all but the first defendant in these cases. The reason is as follows.
- Swarm joinder is inappropriate because there is nothing to show the defendants shared the movie between themselves. It is possible that the movie was shared between other BitTorrent participants.
- Even if Judge Martínez thought joinder was proper, he would sever the defendants because it would violate fundamental fairness.
The Court finds that allowing this action to proceed against all Defendants in one case would result in difficult case management, cause significant prejudice to Defendants, and would be fundamentally unfair.
- The court found that by severing the defendants, fairness was restored and Plaintiff would suffer NO undue prejudice by it. The court also made it clear that filling a separate $350.00 fee for each case was not undue prejudice.
- The court also found it troubling that Plaintiff (and other companies) did not want to actually litigate their claims and were only using the court as a tool in their business model. The court then quoted a previous court opinion (Malibu Media, LLC v. John Does 1-10, Case No. 2:12-cv-3623-ODW (C.D. Cal. June 27, 2012) on these types of cases.
The federal courts are not cogs in plaintiff’s copyrightenforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial. By requiring Malibu to file separate lawsuits for each of the Doe Defendants, Malibu will have to expend additional resources to obtain a nuisance-value settlement—making this type of litigation less profitable. If Malibu desires to vindicate its copyright rights, it must do it the old-fashioned way and earn it.
I make a special note to a sentence on page 7 of the orders in which the court appears to be saying that all BitTorrent copyright infringement case are being handled by one judge.
The Magistrate Judge assigned to all BitTorrent cases has noted that defendants are coming forward with a multitude of different defenses.
If this is the case in Colorado, the Troll are going to be limited to filing single Doe defendant cases. I believe I need to call the clerk and see if I can find out anymore information on this aspect.
Well it does look like the Mile High State isn’t welcome territory for the Trolls anymore. I’m sure Troll Kotzker will attempt something stupid to keep us entertained. Please feel free to send me any updates you come across.
Well I just was passed some good news concerning two Malibu Media cases in the District of Colorado. On 25 Jul 2012, Judge William J. Martínez ruled on cases 1:12-cv-01405 (Malibu Media v. Does 1-5) & 1:12-cv-01407 (Malibu Media v. Doe 1-54). Here is the introduction paragraph to the order for 1:12-cv-01405 (basically same for both cases). Dismiss_Does2_54_01407(CO) Dismiss_Does2_5_01405(CO)
On May 30, 2012, Plaintiff Malibu Media, LLC initiated this action against John Does 1-51 alleging that Defendants unlawfully downloaded a portion of Plaintiff’s copyrighted work. (Compl. (ECF No. 1) ¶ 42.) After reviewing the Complaint, the Court had concerns regarding the joinder of these John Doe Defendants in the same action. Therefore, the Court issued an Order requiring Plaintiff to show cause as to why the claims against John Does 2-5 should not be severed and dismissed without prejudice. (ECF No. 8.) Plaintiff responded to the Order arguing that joinder of the Defendants was proper. (ECF No. 13.) For the reasons set forth below, the Court finds that joinder
of John Doe Defendants 2-5 was not proper and dismisses the claims against these Defendants without prejudice to refiling separate cases against each Defendant and paying a separate filing fee.
I want to get this out, so I will reserve my analysis for a little later. Please take a read of the order and give me your thought. I’m not sure how many other case Judge Martínez is part of, but it doesn’t fare well for the Trolls in CO. I really like the last bit, “… and paying a separate filing fee.”
Note: the Troll can still refile single cases, so it isn’t completely over yet. $350.00 X 57 Does = $19,950.00. The Troll will have to weigh this cost against the possible return in investment.
Have a great day.