With all the antics with Prenda Law this week, I thought a little more fuel for the fire was a nice touch. From my previous post on Copyright Troll Double Tap Tactics, AF Holding LLC (Prenda Law – Brett Gibbs) was required to post a $48,000 security bond to be able to proceed with the case against Mr. Trinh. The court gave Plaintiff 30 days to make the bond or face dismissal. Note: 30 days is 9 Dec 12 (Sunday), so 7 Dec 12 is the last business day. Well, on 14 Nov 12, the bright minds at Prenda Law decided to ask the court for permission to file a motion for reconsideration of the bond order. MFL_ReconsiderBond_02393(CA) It certainly isn’t as funny of a read as the recent Middle District of FL hearing transcript for Sunlust Pictures LLC, v. Nguen, 12-cv-01685. Note: the case was dismissed against Nguen.
In the order, the court granted the bond request based on the following.
Defendant has demonstrated that Plaintiff is a foreign corporation. See Comp. (dkt. 13) ¶ 2 (“Plaintiff AF Holdings LLC is a limited liability company organized and existing under the laws of the Federation of Saint Kitts and Nevis.”). Defendant has also shown a reasonable probability that he will obtain a judgment in his favor. He has done so by noting that Plaintiff’s current evidence of infringement is weak. See Mot. at 7 (citing SBO Pictures, Inc. v. Does 1-3036, No. 11-4220 SC, 2011 WL 6002620, at *3 (N.D. Cal. Nov. 30, 2011) (“As many courts have noted, however, the ISP subscriber to whom a certain IP address was assigned may not be the same person who used the Internet connection for illicit purposes.”). He has also done so by noting that Plaintiff’s negligence claim is deeply flawed. See Mot. at 11 (citing Trinh Ex. B, an order of Judge Hamilton in AF Holdings v. John Doe & Josh Hatfield, No. 12-2049 PJH (dkt. 26) at 4 (dismissing similar negligence claim and explaining that defendant had no duty to prevent infringement of plaintiff’s copyrighted works)).
Here is the reasons Plaintiff/Prenda Law believes they should be allowed to file a motion to reconsider the bond.
- A FAILURE TO ADDRESS EACH CLAIM IN A COMPLAINT WITH RESPECT TO A MOTION TO POST AN UNDERTAKING IS A MANIFEST ERROR OF LAW
- THE COURT CANNOT DISMISS PLAINTIFF’S NEGLIGENCE CLAIM FOR FAILURE TO POST AN UNDERTAKING BECAUSE THE DEFENDANT DID NOT IDENTIFY ANY RECOVERABLE COSTS ASSOCIATED WITH DEFENDING THIS CLAIM
- A CITATION TO AN UNRELATED CASE HAS NEVER BEEN HELD TO ESTABLISH A REASONABLE PROBABILTIY OF SUCCESS ON THE MERITS
- IMPOSITION OF AN UNDERTAKING IN THE INSTANT ACTION WOULD SET A PRECEDENT THAT IS UNDESIRABLE FOR THE STATE OF CALIFORNIA
For #1, Gibbs claims that since the court only talked about the direct copyright infringement and the negligence claims, there was no reasonable possibility Trinh would be successful in defeating the “contributory infringement” claim. Funny how Gibbs does not even mention how the Communication Decency Act (DCA) would destroy the contributory infringement claim – it protects service providers and ISP subscribers when a third-party uses their Internet connections to commit an offense.
For #2, Gibbs simply states that the negligence claim is not as deeply flawed as the court believes and other courts have allowed it.
See e.g., Lightspeed Media Corporation v. World Timbers Inc., CV 2012-053230 (Sup. Ct. Ariz., e-filed November 6, 2012); Liberty Media Holdings, LLC v. Felix Latimore, et al., No. 11-cv-00040 (S.D. Cal. July 11, 2011), ECF No. 9 (recommending the granting of a motion for default judgment against a Defendant accused of negligence); AF Holdings LLC v. John Doe, No. 12-1519 (S.D. Cal. July 12, 2012), ECF No. 4 at 6 (“Accordingly, Plaintiff’s negligence cause of action could withstand a motion to dismiss.”). – My Emphasis
For #3, Gibbs goes on a ramble about how just because the ISP subscriber may not be the infringer, Mr. Trinh does not have a reasonable possibility of obtaining a judgment in his favor. He goes on to tell that court that Plaintiff has already won a $153, 770.00 judgement using the same claims as in this case.
See AF Holdings v. Darryl Lessere, No. 12-cv-22156-UU (S.D. Fla. October 9, 2012). Though the judgment was a default judgment, the claims asserted in Plaintiff’s Complaint necessarily had to meet the legal standard for default judgment in order for such judgment to be awarded in favor of Plaintiff. – My Emphasis
For #4, Gibbs tells the court the $48K bond is excessive and it will make it extremely hard for foreign Plaintiffs to get recompense for copyright infringement by individuals who live in California. He claims only the wealthiest Plaintiffs will be able to bring suits like this one. He then goes on to predict the possibility of a “trade war” between other countries because of this precedent.
Imagine the reaction of American copyright holders if they were required to post a $48,000 bond before proceeding against digital infringers in the European Union—such a scenario would spark a trade war. The United States is supposed to demonstrate leadership in promoting the rule of law. This Court’s Order is inapposite to that principle.
It is really a very sad overall response. The word “Drama Queen” comes to mind after reading this motion. The court has correctly determined (IAW California Code of Civil Procedure, Section 1030. that, 1) Plaintiff is a foreign company & 2) That there is a “reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding.” The judge even reduced the request bond from $88K to $48K. Troll Gibb’s arguments are weak and it does not address the history that Plaintiff has never litigated these matters on their merits – only received a default judgment.
Good luck with this Gibbs/Prenda/AF Holding LLC, you are going to need it. Enjoy your beer John.