Troll Gibbs Fails The “Duck Test” – Seth Abrahams Responds To Hard Drive Production, 3:12-cv-01006 (CA)

On 31 Aug 12, Troll Brett Gibbs, Prenda Law, responded to Seth Abrahams’ motion for a judgment on the pleadings (3:12-cv-01006, Seth Abrahams v.  Hard Drive Productions (HDP), Inc., Does 1-50).   HDP_Opp_Judgment_01006(CA)   In the motion for judgment, Steven Yuen asks the court for a declaration of non-infringement of Defendant’s copyrighted work, as the dismissal of HDP’s second complaint, “…operates as an adjudication on the merits.” (‘Two-Strikes’ posting)

Troll Gibbs tells the court that since Seth Abrahams was not formally part of the two previous “John Doe” cases, then the two dismissal rule doesn’t apply.   

The true issue here, however, is whether the John Doe two lawsuits cited by Plaintiff—i.e. Case No. 4:11-cv-01567 and Case No. 4:11-cv-05634—count as cases against Defendant, and in favor of Plaintiff in this action, under the “two dismissal rule” of Rule 41(a)(1)(B). The answer is a resounding “no.”  

And

Plaintiff was never served with a summons or forced to appear as a party in either Case No. 4:11-cv-01567 or Case No. 4:11-cv-05634.

Troll Gibbs tells the court that even if the two previous dismissals are determined to be the same legal and factual claims, the judgment should be deferred until a third action is filed by HDP.     

Troll Gibbs then goes on to say that a judgment should not occur because the “identity of claims” does not exists for these cases (Gibbs wants the court to believe that the claims of the two previous John Does cases do not arise out of the same facts).  Wait a minute…. One case is a mass Doe case in which Mr. Abrahams’ public IP address is noted on a certain date/time along with other Does.  The second case is a single Doe case with Mr. Abrahams public IP address for the same date/time.  OK, Gibbs, what is the difference???

Let us step back and compare the prior suits to show the clear distinctions. Both of the prior cases, Case No. 4:11-cv-01567 and Case No. 4:11-cv-05634, were separate and distinct Doe defendant lawsuits.1 Neither case named or served a defendant. The first case was against 118 Does, and the second case was against a single Doe. The first case references 118 Internet Protocol (“IP”) addresses that are associated with a number of Internet subscribers, and those IP addresses are specifically connected to infringement of Defendant’s copyrighted works. The second action specifically mentions Plaintiff in its first paragraph, but this reference says nothing about him being liable for copyright infringement; in fact, it is to the contrary:

I can only imagine Steven Yuen laughing so hard from reading this crap that he fainted. As best I can determine, Troll Gibbs need some new glasses.  He obviously fails the “Duck Test,” – If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck. 

Well, on 7 Sep 12, Mr. Abrahams replied to the HDP opposition.   Response_to_HDP_01006(CA)  In the response, Mr. Yuen goes through and destroys Troll Gibbs arguments one-by-one. 

Concerning the claim that Mr. Abrahams was not formally part of the two previous John Doe cases.

The two claims identified in both of the voluntarily dismissed actions are for direct copyright infringement, and for contributory copyright infringement. No amount of differences in the number of parties sued in the first action, or that Mr. Abrahams was never named in the second action—although Hard Drive represented to the court that it would sue him, but then changed its mind for unexplained reasons—does not alter the causes of action pled in these two dismissed actions.

Mr. Yuen goes on to cite Abreu v. Ramirez (C.D. Cal. 2003).

The court examined plaintiff’s prior lawsuits, and found that he had filed and voluntarily dismissed two prior actions against two named defendants in his present action. (Id., at 1255.) As such, the court held that plaintiff’s claims against these two named defendants were dismissed on the merits and were now barred from relegation due to rule 41(a)’s res judicata effect. (Id.) Most importantly, however, the court further held that “other claims twice dismissed by Plaintiff may be barred under the ‘two dismissal rule’ even if the defendants named here were not named in the earlier two actions.” (Id., citing Lake at Las Vegas Investors Group v. Pacific Malibu Development Corp. (9th Cir.1991) 933 F.2d 724, 728, emphasis added.)

 The “cause of action” is also easily shot-down.

In its opposition, Hard Drive makes much ado about the many differences in the language used in its complaint, but never mentions the causes of action alleged in both. Specifically, in its first voluntarily dismissed action, Hard Drive alleged causes of action for direct and contributory copyright infringement for the adult pornographic work entitled Amateur Allure – Samantha Saint. (Exhibit A at 4:11-14 & 7:23-9:23 (¶¶ 7 & 25-39).) Likewise in its second voluntarily dismissed action, Hard Drive again alleged causes of action for direct and contributory copyright infringement for the adult pornographic work entitled Amateur Allure – Samantha Saint. (Exhibit C at 2:13-15 & 6:21-8:9 (¶¶ 4 & 25-37.) Thus, identity of claims exist despite Hard Drive’s focus on minor differences in the language used to support these claims.

Mr. Yuen wraps up by reminding Troll Gibbs that the court previously determined a controversy exist between HDP and Mr. Abrahams. 

Based on how this cases has previously moved, as well as Mr. Yuen’s motion for judgment, I expect Mr. Abrahams to be declared the prevailing party.  Note: the hearing is set for 21 Sep 12, 09:30 PST.  Once Mr. Abrahams is formally determined not to be the infringer of Plaintiff’s work, I expect to see a motion for at least attorney’s fees.  With all the work Mr. Yuen has done on this case, I expect the bill to be a substantial amount.  As this is the second Yuen case soon to prevail over Prenda Law, I expect other Doe Defenders to pick up on these tactics.  I’m sure Prenda and the others Trolls will adjust/change their strategy, but it is just like watching the end of a chess match.  The available moves keep getting smaller and smaller until the end. 

DieTrollDie :) 

Previous Seth Abrahams post.

No reason for the video, except that I love the song.  ;)

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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11 Responses to Troll Gibbs Fails The “Duck Test” – Seth Abrahams Responds To Hard Drive Production, 3:12-cv-01006 (CA)

  1. Subscribe says:

    Subscribe

  2. The Tod says:

    Maybe we will get a checkmate this time instead of a draw.

  3. Irritated Troll Hater says:

    YUEN SMASH GIBBS!!!!!!!! (Hulk voice)

    Steven Yuen seems to be Prenda’s kryptonite. I have a feeling that not only will the eventual loss not phase Gibbs, but he will have another encounter with Yuen. Would be nice though if Gibbs finally grew a brain and decided to cut his losses and quit the scam and dis-associate himself from Prenda. I am looking forward to the end of the month with news of victory for Abrahams.

    Down with all Trolls

  4. Raul says:

    Great news and, as usual, another great post. But Seth is the underdog so http://www.youtube.com/watch?v=q1hZVDLkJDc Saw them at Bonnaroo some time ago and love the band.

  5. Pingback: Abrahams v. Hard Drive Productions: Update | Copyright Attorneys

  6. SpanishDoe says:

    Did that hearing every happen? If so, anyone know what came of it?

  7. Pingback: Qui Tam Claims – Copyright Trolls Take Notice – 3:12-cv-01006 (Seth Abrahams) | DieTrollDie

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