So many developments happening it is hard to keep up. This post concerns the Prenda Law/AF Holding LLC case against John Botson, 5:12-cv-02048, NDCA. Actually it was against a “Phantom Doe” case that Botson had been dismissed from. I made an initial Tweet about the ruling yesterday (15 Nov 12), but felt a wider audience should see it.
On 24 Apr 12, AF Holding LLC/Prenda Law filed a case against a Phantom Doe and John Botson. You will remember they tried this against Josh Hatfield and lost. Botson_FAC_02048(CA) Note: Both of these cases were successfully defended by Nicholas Ranallo – after John Steele made nasty comments concerning Ranallo :) (Karma John – you suck). Prenda was trying the negligence end-run around the copyright law for a second time – AND LOST. This time the judge even said that the Communication Decency Act (CDA) gave Botson protections against suits based on a third-party who uses another’s network to infringe. The court was nice enough to allow Prenda some time to find, name, and serve the Phantom Doe (NLT 2 Nov 12) or the case would be dismissed entirely. MTD_Granted_02048(CA)
On 23 Oct 12, Prenda (Troll Gibbs) motioned the court for leave to file a Second Amended Complaint (SAC) against Botson. Prenda had the gall to tell the court that all-of-a-sudden they had evidence to support direct and contributory copyright infringement claims against Botson. They even went so far as to try to tell that court that no one could object to this motion.
Lastly, there is currently no Defendant in this case to challenge, or stipulate to, Plaintiff’s Motion to Amend here.
Prenda just told the court that since Botson was dismissed from this case, he is not party to it and cannot object. The fools at Prenda want the court to believe that because Botson was dismissed, he cannot object to being pulled back into the case by Plaintiff filing a SAC directly naming him? Can you believe that???? Well yes, from Prenda I can – Sad.
As noted by the court, the draft SAC is weak and doesn’t give any indication of why they are now claiming Botson is the “Phantom Doe.” There is no new evidence or claims in the draft SAC. It contains the same old tired Prenda cookie-cutter case complaint information. This is what the judge thought of this.
This observation becomes central to inquiry required under Rule 15 because allowing Plaintiff to rename Botson as a defendant in this action after Botson successfully moved to dismiss the sole count asserted against him is prejudicial in some rather obvious ways. He will necessarily incur more attorneys fees and need to spend additional time defending against new allegations which may or may not have merit. This prejudice is compounded by the lack of detail provided in Plaintiff’s Motion. Without more then what has been presented by Plaintiff, it appears that these allegations could have been asserted against Botson in the first instance.
And you have to love this one.
Furthermore, the court is concerned that the proposed amendments are sought in bad faith. The timing of this request – after Botson has been dismissed as a defendant and immediately prior to the final deadline for service – as well as the generality of the motion and SAC are suggestive of an attempt to simply keep the only identified defendant “on the hook.”
So on 6 Nov 12, Judge Edward Davila, ordered the case to be closed. Prenda couldn’t find their Phantom Doe – no surprise.
Well Botson was already free and clear of any claims of copyright infringement for this allegation – judged on its merits. This dismissal of the Phantom Doe and denial to amend the complaint just puts the final nail in the coffin. It also means that Mr. Ranallo will likely file a motion for Plaintiff to pay costs and reasonable attorneys fees. Having this dismissal order showing apparent “Bad Faith” from Plaintiff/Prenda as an attachment to the motion is going to be sweet. I would also guess that Ranallo (and other attorneys) will use the Prenda Web site as proof their clients were being defamed even after cases have been dismissed two times (adjudicated on the merits). Here are some recent screen shots showing Botson (along with Hatfield & Trinh) on the Prenda Web site – which calls these individuals “infringers/hackers.” Way to go Duffy!