Darren M. Griffin, Crystal Bay Corporation: Doesn’t Pass the Duck Test – Possible FRAUD Upon The Courts

Time for a Duck Test again. If you are unfamiliar with this term, it simply means that if something looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.

On 4 Aug 14, Michael Patzer, Excipio GmbH, disclosed that the “Forensic Investigative Service” provider, Crystal Bay Corporation (CBC), a South Dakota Shelf-Company, contracts its BitTorrent monitoring systems/servers from Excipio GmbH (Germany).  [Also see this article]   Doc_89_Decl_MichaelPatzer_Rule 11_00395(WA)   Not a great shock, as we assumed that the German BT monitoring companies were behind this aspect. What has been a bit of a mystery is who is “Darren M. Griffin,” “software consultant,” that CBC uses to support various Copyright Troll cases.  Mr. Griffin is responsible for providing declarations that justified the early discovery of ISP subscriber’s information in multiple cases (with multiple different Plaintiffs) in the US.

Internet search are pretty sparse for Mr. Griffin.  The name is relatively common, but nothing matching a software consultant for a company (CBC) that provides forensic investigative services to copyright owners.  Couple that with the fact that CBC is a SD shelf-company run out of a mail-drop and it looks like Mr. Griffin doesn’t exists.  That or Mr. Griffin is another Alan Cooper (AKA: Fraud upon the court).  See the later part of this previous post for additional details on CBC.

Now I know some people are going to say that DTD is simply a pro-piracy lunatic and there is nothing suspicious about this.  Then I suggest the doubters (and judges!) need to look just a little deeper and not take what the Copyright Trolls have to say at face value.

Time For A Closer Look

I decided to take a small sampling of the declarations from Darren M. Griffin.  Note: I know there are plenty more out there, so please feel free to send me a copy of any Darren M. Griffen declarations you have.  Here are the five I used –   Decl_Griffin_01658(GA) Decl_Griffin_00603(TN) Decl_Griffin_00129(TN) Decl_DGriffin_02911(CO) Complaint_Decl_Griffin_00727(AZ)

I then took screen-shots of the signature portions of the declarations and grouped them together.  I guess signing your initials could be a signature – but it still seems very odd and suspicious IMO.  Take a look and tell me what YOU think.  I’m no hand-writing expert, but none of them look the same or even similar.  It looks like the stupid Trolls couldn’t even keep the signatures straight – How very Prenda of them.  I also want to point out that under two of the signatures is the number “60998770.1” – If anyone has an idea of what this means, please contact me.

Griffin_Sig_Compare_1

 

Griffin_Sig_Compare_2Griffin_Sig_Compare_3

So do you think Darren M. Griffin passes the Duck Test?  My opinion is it sure looks like a “FRAUD” and not a duck.

DieTrollDie :)   “Rule #2: Double Tap” {Zombieland}

duck1

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RightsCorp – Plans Of ISP Control & Subpoenas For Subscriber Information

Sometimes people are a bit shocked that Copyright Trolls change tactics.  As most people do not like change or unfamiliar situations, I understand this feeling.  Well brothers and sisters, the fact of the matter is the BitTorent Copyright Trolling business model is not going away very easily.  This business was designed to make lots of money for a small group of people and the profits are just too damn addictive for them.  As any good business requires flexibility to survive, the Trolls are likely to try new things.  This is especially true when the status quo isn’t working as well as you like. Rightscorp_money1For this particular article, I’m talking about RightsCorp.  Please note that RightsCorp is more of a BT Copyright Monetization Troll, than a traditional BT Copyright Troll.  They sign up copyright holders and monitor BT for infringing content of these clients.  Identified US public IP addresses are then sent a Digital Millennium Copyright Act (DMCA) formatted email via their ISP, informing them of the observed infringing activity and asking them to pay a fine to prevent any possible legal action against them.  Note: Some ISPs do not forward these settlement emails to their customers, as they obviously see this as a “legal” scam (my opinion).  BTW – if any rights holder or RightsCorp doesn’t agree with me or a specific point, please tell me and I will address it. There are two things from RightsCorp that I want to discuss –

  1. Their plans to force the various ISPs to “Play Ball.”  
  2. Subpoenas for ISP subscriber information IAW Title 17, § 512 – Limitations on Liability Relating to Material Online.  

RightsCorp Plan

Here is a copy of a RightsCorp investor Presentation to the Anti-Piracy and Content Protection Summit.   Investor_Presentation_at_The_Anti-Piracy_&_Content_Protection_Summit   In this presentation, RightsCorp indicates they are going to try to hold the ISPs responsible for the activities of their subscribers.  As the  “Safe Harbor” provision of the DMCA basically prevents the ISPs from being sued because of ISP subscriber activities, RightsCorp has to show that an ISP is not upholding its requirements to maintain the Safe Harbor status.  RightsCorp knows the ISPs are not going to risk becoming liable and will likely take some type of actions to stop or at least slow copyright infringement from the subscribers. So what is required by the ISPs to maintain their Safe Harbor status?  RightsCorp tells the potential investors that IAW Title 17, § 512 an ISP is only protected if it –

(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; and (B) accommodates and does not interfere with standard technical measures.

Fair enough – that requirement is valid.  But what else does this subsection have to say??? Title17_512i Now many people will say I’m biased and maybe even Pro-Piracy (I’m not), but reading this seems to indicate to me that the technical measures employed by RightsCorp (and others) to identify and protect copyrighted works have additional requirements.

(A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process;

I see problems here – in NO way was the BT technical monitoring system developed in a broad consensus of copyright owners and ISPs.  Nor was the BT monitoring system developed “in an open, fair, voluntary, multi-industry standards process;”  The BT monitoring systems we know of are all proprietary systems in which the owners consider the inner workings to be a “trade-secret.”  We know nothing of the system RightsCorp uses and I’m willing to put forth an idea – that quite possibly RightsCorp have contracted/agreement with some well-established German BT monitoring firm to provide them with the information.  Please correct me if I’m wrong here.  We already know that Excipio GmbH sells its service to a Shelf-Company by the name of the Crystal Bay Corporation (CBC) in relation to previously filed Copyright Infringement cases.  Find out more interesting information on CBC from Fightcopyrighttrolls.com.

What ISP Actions?

These actions could entail forwarding the DMCA-like settlement demands to subscribers, slowing down or killing an Internet connection, or even possibly requiring the subscriber to settle with RightsCorp prior to reconnection.  Now if the ISPs decide not to “play Ball,” RightsCorp has three options.

  1. Seek damages for Copyright Infringement due to Non-Safe Harbor compliance.
  2. Seek a court injunction IAW section (j) of Title 17, § 512.
  3. Drop the issue with the ISP.

Subpoenas For ISP Subscriber Information IAW Title 17, § 512 – Limitations on Liability Relating to Material Online

Most of you know that I’m constantly telling to people that RightsCorp does NOT file Copyright Infringement law suits (AKA: sue people).  I even have a screenshot from their Web site where they state this.  Then imagine my surprise when I obtained a RightsCorp document telling an ISP subscriber that they obtained the person’s name/address via a subpoena.   RightsCorp_Subp_Notice   Also attached to the letter is multiple pages showing a large number of files belonging to a RightsCorp client that were infringed upon via the public IP address in question. I did some searches for RightsCorp on RFC Express and the results are spotty at best.  The following documents are from case 2:14-mc-00276-UA, Central District of CA, with the nature of the suit being “890 Other Statutory Actions.”   Docket_5Aug14_MC_00276(CA)   Decl_Subp_17USA_512_MC_00276(CA)-   Subpeona_Telescape_MC_00276(CA)-   Summary_and_DMCAs_MC_00276(CA)-   If you examine the docket, you will see that it is a civil misc. case (Not a Copyright Infringement case) and it was opened and closed on the same date.  The case was only opened so as to allow the court to issue a subpoena (IAW Title 17, § 512) that RightsCorp (via attorney Dennis Hawk, Business Law Group) could forward to the ISP.  NOTE: The above letter is NOT from this case – I picked the RightsCorp case at random.  Also note that the docket indicates NO demand for a jury. Now depending on the particular ISP, a subscriber may or may not be notified of the subpoena.  Please note that the subpoena in this example case does not have a provision to allow the ISP subscriber to challenge it – the case is CLOSED. Based on limited access to the various RightsCorp cases, I don’t see this being a standard procedure for them.  RightsCorp makes it money by using automatic emails to generate settlement quickly and cheaply.  Obtaining a subpoena requires the action of an attorney (and some filing fee I assume) and will likely only be used on IP addresses they see as serial infringers in which they have sent multiple DMCA-like settlement letters to and have yet to get a response. Now if you call RightsCorp, you will likely be told that you need to pay a large settlement to make this go away or they may take you to court.  They do have the option to file a Federal Copyright Infringement case in the PROPER jurisdiction, but that is not what they want (my opinion). Settlement generation is “King” here.

What To Do?

My standard non-lawyer advice still applies.

  1. Make sure the infringing BT activity stops on your public IP address – regardless of who is responsible.
  2. Resecure the WiFi Internet connection with a new password (and don’t give it out).
  3. Contact your ISP and advise them you have taken steps to address this issue and prevent any future activity.
  4. Don’t pay the settlement and use this as a learning experience.

As I said, I know of NO current Federal Copyright Infringement cases filed by RightsCorp or any of it clients.  Saying that, they are actively trying to increase settlements and you need to keep this in mind.

DieTrollDie :)  “…Nobody calls me Lebowski.  You got the wrong guy.  I’m the Dude, man.”  {The Big Lebowski}

Previous article on RightsCorp/CEG-TEK

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Copyright Troll Elf-Man Responds to Motion For Fees/Costs & Sanctions X2 – Lamberson Case # 2:13-cv-00395 (WA)

On 4 Aug 14, Elf-Man LLC (via Troll Lowe) filed its response to Defendant Lamberson’s Motion for attorney fees/costs and sanction IAW Rule 11 and 28 U.S.C. §1927.  It will take me some time to wade through all the bull$h!T and pull out some Troll gems to highlight.  Previous Elf-Man article.

Make sure you also look at the various attached exhibits to these documents (below).

piss2I will not try to break down all the documents, as it would be exceedingly long.  Attorney Lynch is going to have a field-day replying to Troll/Plaintiff, as well as pointing out the aspects they did not even bother to respond to.  I don’t know much about the judge, but it does seem he opened the door for fees/costs and can clearly see how Troll/Plaintiff gamed the system.  Lets hope he decides to assign a “cost” to these Troll actions.  Attorney Lynch has until 11 Aug 14, to reply.

So what is Troll/Plaintiff claiming in all this digital dribble???

  1. Defendant’s has not met the burden of proof to justify any sanctions IAW FRCP 11 and 28 USC §1927.
  2. Defendant should not be granted attorney fees/costs, as Attorney Lynch unnecessarily ran up the attorney fees when there was no need to.

NOTICE OF APPEARANCE – Collette C. Leland is the attorney representing Troll VanderMay – “… limited representation of responding to Defendant’s Motions for Sanctions, …”   Doc_82_Legal_Rep_VM_00395(WA)

PLAINTIFF’S OPPOSITION TO DEFENDANT’S POST-DISMISSAL MOTION – Troll Lowe tells the court that their case was run with the “proper due diligence research and credible evidence.” The Troll claims Attorney Lynch was not interested in the “…civil investigation of the facts and judicial resolution of the merits, but rather to threaten, intimate, harass and bully Plaintiff’s counsel and to obfuscate and churn away with unnecessary legal fees.”   Doc_83_TrollResponse_Rule11_00395(WA)

DECLARATION OF MAUREEN VANDERMAY IN OPPOSITION TO DEFENDANT’S POST-DISMISSAL MOTION – Standard Troll VanderMay long-winded statement – “Plaintiff proceeded in good faith, as did I, in seeking redress for this infringement. The fact that Plaintiff later decided to move for dismissal is not indicative of any lack of factual or legal basis for Plaintiff’s claims.”   Doc_84_Decl_VanderMay_Rule 11_00395(WA)

What I find really funny is Troll VanderMay claims that since Lamberson didn’t respond to the settlement demand with a denial, which somehow indicates he is the offender. Correct me if I’m wrong, but by the complaint, it didn’t matter to Troll/Plaintiff if Lamberson (or other Does) were innocent, as they were also pursuing the “Negligence” claim (AKA: Indirect Infringement).  Note: this baseless claim was later killed by the court.

DECLARATION OF DAVID A. LOWE IN OPPOSITION TO DEFENDANT’S POST-DISMISSAL MOTION – Troll Lowe complains that Attorney Lynch hurt his feelings: “In the six weeks since that time I have been stunned and disappointed by the unbridled aggression, ad hominem attacks on prior counsel and me, personally, the admissions from Defendant’s counsel about the vexatious manner in which he has sought to run up fees in this litigation, and the dishonesty with which he has interacted with opposing counsel.”   Doc_86_Decl_Lowe_00395(WA)

I also loved this one: “Defendant endlessly pursued frivolous theories apparently based on Internet blogs by those interested in perpetuating illegal downloading using BitTorrent.

Are speaking about me Troll Lowe???  I do not “perpetuate” illegal downloading; in fact I tell people who doing it, that they need to stop it.  YES, I do fight against the Copyright Trolls.  It is my opinion you are nothing more than sleazy-greedy-douchebags which are abusing the Copyright Law to make some money.

DECLARATION OF KURT UEBERSAX IN OPPOSITION TO DEFENDANT’S POST-DISMISSAL MOTIONS – Executive producer for Elf-Man. I will use a Prenda associated term of “Equine Excrement” to show my opinion on this declaration. “11. In the present case I have been assured that the infringement associated with the defendant has stopped and that the defendant is now aware of the seriousness of this issue. Further it appears that the only additional result we might obtain would be to force the defendant into bankruptcy as his attorney claims he is destitute.”   Doc_87_Decl_KurtUebersax_Rule 11_00395(WA)

DECLARATION OF DANIEL MACEK IN OPPOSITION TO DEFENDANT’S POST-DISMISSAL MOTIONS – This one is a sad joke (more opinion) – Daniel Macek claims he is a consultant for the Shelf-Company, Crystal Bay Corporation (CBC), in its technical department. Funny there is absolutely no mention of the Anti-Piracy Management Company (APMC).   Doc_88_ Decl_DanielMacek_Rule 11_00395(WA)

DECLARATION OF MICHAEL PATZER IN OPPOSITION TO DEFENDANT’S POST-DISMISSAL MOTIONS – Claims he is an independent contractor predominantly for Excipio GmbH (German company). Excipio contracts with Crystal Bay Corporation to provide Crystal Bay with the data collection system (Crystal Bay licenses the use of Excipio’s system and servers).   Doc_89_Decl_MichaelPatzer_Rule 11_00395(WA)

DECLARATION OF PATRICK PAIGE – 2013 Declaration for a Malibu Media LLC case in which Mr. Paige (Forensic Consultant) states that IPP software worked as claimed and identified the correct public IP address. So…. Is Troll/Plaintiff saying that Excipico/Crystal Bay Corp. is IPP and the software works???   Doc_90_Decl_PatrickPaige_00395(WA)

ATTORNEY VANDERMAY’S OPPOSITION TO DEFENDANT’S MOTIONS FOR RULE 11 SANCTIONS AND SANCTIONS PURSUANT TO 28 U.S.C. §1927 – Troll VanderMay claims Attorney Lynch only worked this case in hopes of filing an eventual motion for fees/costs.  She offers the court the simplistic opinion that Plaintiff and Defendant merely had “different views of this case and how it should be conducted.” Troll VanderMay claims Defendant failed to meet the burden of to justify any sanctions.   Doc_91_VanderMay_Opp_Rule 11_00395(WA)

So please take a read and give me your thoughts.

DieTrollDie :)  So many assholesSo few bullets.”  - {Ford Fairlane – The Adventure of Ford Fairlane}

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Stupidity In OR – Copyright Troll Voltage Pictures Claims Negligence & Trademark Infringement – 3:14-cv-01191 (OR)

While monitoring the new Copyright Troll cases, I’m sometimes surprised by what greed motivates Trolls to do.  Then again… Not really.  I recently noticed what appeared to be two single Doe “Voltage Pictures LLC” cases filed in Oregon on 25 Jul 14 (3:14-cv-01191 & 6:14-cv-01193), by Troll Carl D. Crowell, Crowell Law.  Troll Crowell is well-known as a local Troll counsel for Voltage Pictures (Previous Article).

Complaint_01191(OR)   Complaint_Ex1_01191(OR)   Docket_28Jul14_01191(OR)

Looking a bit closer also disclosed a second Plaintiff for this case – TCYK LLC (The Company You Keep – movie).  Seems odd, as they are the same Trolling organization. Note: I only looked at 3:14-cv-01191, but I expect they are basically the same.  The reason there are two Plaintiffs becomes clear when you look at the complaint.  Here are the claims in this case.

  • COPYRIGHT INFRINGEMENT
  • ALTERNATE THEORY – INDIRECT INFRINGEMENT
  • ORS 647.105 – STATE TRADEMARK

So the Troll is AGAIN trying to use the Indirect Infringement (AKA: “Negligence” claim) AND Trademark claims.  The only thing that is different from the previous failed attempts to do so is that the claim is only against a single Doe (IP address 76.105.157.206).

Here is one previous case where Troll Crowell and Voltage Pictures tried to file a Oregon State Court Trademark Infringement law suit against 50 Does.   StateCourtFiling_00816(OR)   Docket_29Jul14_00816(OR)   Doc8_00816(OR)    The case was removed back to the Federal Courts, as it was CLEARLY a BitTorrent Copyright Infringement case, and thus it can only by handle by a Federal court.  This case turned out to be a bust, as the Federal court also decided to sever all the Does except for Doe #1. FAILURE   The Trademark in this case is for “Voltage Pictures,” which they claimed was infringed upon when the Defendants shared the movie via BitTorrent.  Still by reading this complaint, the only issue is alleged BT copyright infringement, not trademark infringement.

Unicorn1The Indirect Infringement (Negligence) claim is just as stupid in my opinion.  We call this tired old failed claim the “Unicorn Tugboat Theory” in honor of Attorney Mark Randazza.  There have been multiple cases across the US in which the courts have not accepted the view that an ISP subscriber is responsible for the activities that occur on his network, regardless of whether he/she knew of the activity.  Most recently this claim was killed by the WAED court when Elf-Man LLC, tried to use it in case 2:13-cv-00115Order_Doc106_00115(WA)

Now what is interesting in this case is that the Troll requested a hearing to authorize early discovery, but does not provided any additional supporting documents to justify early discovery (ISP subscriber information).   Discovery_Motion_01191(OR)   So what is missing???   I don’t see any mention of the BT technical monitoring personnel/organization. It looks like the Troll is trying to distant themselves from the German BT monitoring firms of IPP/Guardaley/Excipio, Crystal Bay Corporation, Daniel Macek, Darren Griffin, etc.

I also found it interesting that the Troll actually added eight pages of exhibits to show the Non-Voltage Pictures/Non-TCYK files that were being shared by this public IP address via BitTorrent (9 May 14 – 25 Jul 14).   Complaint_Ex1_01191(OR)   I didn’t see any porn titles in the list; only TV series, Movies, Software, eBooks, and audio files.  I assume the Troll will use this list as proof that the Doe is a serial infringer of the “greatest magnitude.”  These titles would also be of value to any forensic examination (doubtful it will occur), as finding these would give weight to the allegation that the ISP subscriber’s system was used to download/share Plaintiff’s movie.

I not sure if this is a Troll testing the courts with the Trademark Infringement and Negligence claims OR they are simply trying to force a settlement from a Doe with an extensive BT downloading/sharing record.  I do assume that because of various setbacks, the Trolls are having to fine tune their efforts to keep the settlement generation business afloat.   Malibu Media went this route; maybe Voltage Pictures will do the same.

DieTrollDie :)     “You see, this profession is filled to the brim with unrealistic motherfuckers.  Motherfuckers who thought their ass would age like wine.” -Marsellus Wallace {Pulp Fiction}

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Defendant Butler Answers Malibu Media LLC, 1:13-cv-02707 (CO)

Time for an update on a Colorado Malibu Media LLC case with the potential to become interesting.  The case is Malibu Media LLC v. John Butler, 1:13-cv-02707.  Previous article on this case.

Since may last article, we had the following activity.

They are all worth a read, but I wanted to draw everyone’s attention to Defendant Butler’s Answer.  I have even added this document to my “Defendant Answers” page, as it is straight forward and clear in the denial, as well as using some new “Affirmative Defenses.”

AFDef1

Right now we have another CO cases that is testing out the “Failure to State a Claim” issue – Motion To Dismiss Copyright Troll Malibu Media Case – AKA: “Necessary Volition” – 1:14-cv-00262 (CO)

I like the “Assumption of Risk” defense, but I doubt Judge Hegarty will buy it.

The “Estoppel” and “Copyright Misuse” defenses are good, but I think they will need additional support to be effective.  Such information may become available as the judge in the Elf-Man LLV v. Lambersen case (2:13-cv-00395, WA) addresses the sanctions issue -the German BitTorrent monitoring firm/investigators (IPP/Guardaley/Excipio) and the Anti Piracy Monitoring Company, LLC (APMC).  As well as what eventually comes out of the MD Malibu Media cases that attorney Morgan Pietz is working.

The “Intervening Cause” defense is another good, especially if the WiFi Internet connection was run “Open,” or there were network guests who did this without the knowledge or consent of Defendant Butler.

So now the ball is in Troll Lipscomb/Kotzker’s court.  The best they can hope for is that a background investigation and deposition comes back with some information they can use to force a settlement.  Following this, computer forensics would be needed.  It would be really nice if the CO courts would take a similar forensics analysis stance as in Malibu Media v Gerald Shekoski (MIED 13-cv-12217).  If nothing is found, Troll/Plaintiff is not sitting pretty.  Attorney Richard Hanes could then motion the court for a summary judgement or get Troll/Plaintiff to agree to dismiss Mr. Butler WITH prejudice.  More to come on this case.

DieTrollDie :)    “You know how you get to Carnegie Hall, don’t ya? Practice.  {Lt. Aldo Raine – Inglourious Bastards}

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Motion For Fees/Costs & Sanctions X2 For Elf-Man LLC – Lamberson Case # 2:13-cv-00395 (WA)

I assumed the motion for attorney fees and costs would soon be filed in the Elf-Man LLC v. Lamberson case, 2:13-cv-00395.  What I did not expect (and was nicely surprised) was for there to be TWO additional motions filed by attorney Lynch.

Motion For Attorney Fees   Doc_75_FeesCosts_00395(WA)    Doc_76_Decl_Lynch_FeesCosts_00395(WA)    Doc_77_BillCosts_Statement_00395(WA)

Motion For Sanctions Pursuant To 28 USC § 1927   Doc_78_Mot_Sanctions_28USC1927_00395(WA)   Doc_79_Decl_Lynch_Sanctions28USC1927_00395(WA)

Motion For Sanctions via Rule 11   Doc_80_Mot_FRCP11_Sanctions_00395(WA)   Doc_81_Decl_Lynch_FRCP11_00395(WA)

The various exhibits are attached, so the documents are a bit long – but so fun to read. :)

Here is the bottom line for these motions.

Motion For Attorney Fees/Costs$191,230 attorney fees + $1,405.19 for costs = $192,635.19.  The attorney fees will also likely go up when attorney Lynch files a reply to any Troll/Plaintiff response to these motions.  Attorney Lynch asked the court to require Plaintiff immediately pay the judgment or be required to post a bond.   In addition, they also requested the court hold BOTH APMC LLC and Plaintiff responsible for paying any judgment.

Finally, Mr. Lamberson requests that any award herein become a judgment against plaintiff and its “representatives,” including APMC, LLC, the financier of the case and real party in interest. AMPC stood to collect first had Elf-Man LLC prevailed, so APMC should stand to pay first when Elf-Man LLC loses.

Motion For Sanctions Pursuant To 28 USC § 1927 – Attorney Lynch states that under 28 USC § 1927 and the courts inherent authority, APMC LLC, Vision Films Inc., Elf-Man LLC, and Plaintiff’s counsel should be sanctioned for their recklessness and “bad faith” in litigating this case.

Here, the conduct of plaintiff and its counsel is subject to sanctions under both tests. Plaintiff was reckless in its undertakings, multiplying the proceedings. There is repeated evidence of bad faith, including concealing a real party in interest. Plaintiff’s decisions were uniformly inconsistent with the genuine interests of Elf-Man, LLC, a schism that led to withdrawal of counsel. This is improper purpose, and improper purpose is bad faith under the authority. APMC, LLC, Vision Films, Inc., and plaintiff’s counsel should be with Elf-Man, LLC before the Court. Here are ten representative examples of multiplication of the proceedings:

The Ten examples are – Multiplication #1: The First Amended Complaint; Multiplication #2: Where are the valid summonses?; Multiplication #3: Where is the Copyright Certificate?; Multiplication #4: Who “Observed Infringing”?; Multiplication #5: Where are the Initial Disclosures?; Multiplication #6: Where is the Discovery?; Multiplication #7: Where is the Technical Report?; Multiplication #8: Where is the Investigator Explanation?; Multiplication #9: Where are the Investigators?; and Multiplication #10: Who is APMC?

Attorney Lynch also quotes Judge Otis Wright (Ingenuity 13 (Prenda Law) v. John Doe, 2:12-cv-08333), in his assessment of the flawed mass-defendant BitTorrent law suit that Elf-Man LLC is akin to – Elf-Man is the same, only the stigma is banality, not pornography.“

Motion For Sanctions via Rule 11 – Attorney Lynch request FRCP 11 sanctions be imposed for Troll/Plaintiff’s failure to withdraw the First Amended Complaint.

Rule 11(b) requires (i) certification of a reasonable inquiry, plus that (ii) the pleading is not for improper purpose, (iii) the claims are warranted by law, and (iv) the factual contentions have evidentiary support. Ms. VanderMay’s signature on the First Amended Complaint and failure to withdraw it violate Rule 11(b). Bad faith is not required. Truesdell v. S. Cal. Permanente Med. Grp., 209 F.R.D. 169, 174 (C.D. Cal. 2002) (citing Ninth Circuit cases).

The Conclusion sums it up perfectly.

Ms. VanderMay’s federal lawsuits against over 60 people in this District within one week of her admission were signed without basis or adequate investigation under Fed. R. Civ. P. 11. Objective counsel would have sought the jurisdictional copyright certificate and submitted it. Objective counsel would have supported a motion for Expedited Discovery with foundational witness testimony. Objective counsel would have researched copyright infringement, contributory copyright infringement and other secondary copyright infringement liability to confirm that none of those avenues of liability applied to the facts at hand. Objective counsel would listen and adjust when Judge Lasnik expressed concern sua sponte that plaintiff’s counsel cannot meet her Rule 11 obligations. Objective counsel would have understood emphatic pleas of innocence as a sign that there may be a problem with the case, not that there was not a problem. Objective counsel would take advantage of an accused defendant’s offer to demonstrate his innocence, especially when paired with an express allegation of a violation of Rule 11.

What Now???

TORP_Town1Now attorney Lowe has 14 days to respond to these motions – 4 Aug 14.  At that time attorney Lynch will have 7 days (11 Aug 14) to reply to any response Troll/Plaintiff makes. Following that, the court will rule in 30 days or less (approx. 11 Sep 14). There is also a chance for oral arguments, but that will only happen if the court orders it.

I can only see Troll/Plaintiff making the tired claim that attorney Lynch’s fees/costs are excessive and that he multiplied the proceeding to raise them to up.  I don’t expect the court will give this much weight, but the worst that will happen is the court may reduce some of the fees/costs, but probably not very much.

The issue of sanctions IAW FRCP 11, 28 USC § 1927, and the court’s inherent authority are what is going to be interesting.  This court has access to the document under the protective order, as well as a good understanding of how Troll/Plaintiff has played this game and abused the legal system for profit (My Opinion).  I don’t expect a Judge Wright Photon Torpedo, but I am hopeful.  ;)  Please take a read of all the documents/exhibits and give me your thoughts.

DieTrollDie :)   The hard part about playing chicken is knowin’ when to flinch.”  - {Capt. Bart Mancuso – The Hunt for Red October}

Previous Elf-Man Article.

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Motion To Dismiss Copyright Troll Malibu Media Case – AKA: “Necessary Volition” – 1:14-cv-00262 (CO)

Many of you know how I feel about the Colorado courts (namely Judge Hegarty & Judge Daniel) and their “rubber-stamping” of BitTorrent Copyright Troll cases (Multi-Doe & Single Doe cases) in the State. {On a side-note, please see the following Shared Folder in which Judge Hegarty approved early discovery the SAME DAY the case was filed!}  The IL Northern District has a higher volume of Copyright Troll cases, but the singular assignment of CO cases to these two judges is extremely troubling.

guilt1In Malibu Media LLC v, Richard Sadowski (IP address 75.71.118.123), case 1:14-cv-00262 (CO), Doe Defender John Arsenault, Wessels & Arsenault LLC, recently filed a motion to dismiss for failure to state a claim of relief.   MTD_FSC_Doc26_00262(CO)   Now this may not seem too shocking, as this Defense strategy has been tried before with no real success.  Please take a read of this straightforward motion and see if the logic makes sense to you.  I assume attorney Maurice Ross will chime in and claim that Plaintiff has “adequately” stated a claim and this is simply a content owner exercising her rights.  Other case documents – FAC_Doc12_00262(CO)   FAC_EXA_Doc12-1_00262(CO)   Docket_18Jul14_00262(CO)   Decl_P_Paige_00262(CO)   Decl_P_Fieser_00262(CO)

Plaintiff Failed to Plead a Necessary Volitional Act in its Amended Complaint

Attorney Arsenault makes these points to highlight why Plaintiff has failed to plead the volitional acts required.

  • Troll/Plaintiff makes a claim direct copyright infringement against Defendant Sadowski for 21 Malibu Media/X-Art movies.
  • Troll/Plaintiff fails to adequately tie the alleged infringement directly back to Defendant Sadowski.
  • The only thing Troll/Plaintiff has to tie the alleged infringement back to defendant Sadowski is the public IP address.
  • The only reason Defendant Sadowski is tied to the public IP address is because he pays for the Internet subscription from the ISP.
  • Troll/Plaintiff has only made unsupported conjecture which does not support a claim to the level required by Federal Rules.

Attorney Arsenault makes the extremely clear and understandable comparison between this allegation via a public IP address and an allegation from a telephone number.

Associating the Defendant with the claim at this point is similar to suing the subscriber of a telephone line where an allegedly illegal phone call took place without having evidence of who is responsible for the unlawful act. At best, Plaintiff has demonstrated that the internet protocol (“IP”) address used at Defendant’s home is allegedly used for the infringing activity claimed herein. In the FAC, Plaintiff does not properly associate Defendant’s activities to the activity reported from the IP address claimed by Plaintiff’s investigator, instead making unsupported conjecture. {My Emphasis}

Attorney Arsenault goes on to supports his motion with some rather well know case-law.

Fed. R. Civ. P. 8(a) does not require detailed factual allegations, but it does require more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’” Id., quoting Twombly, 550 U.S. at 554. “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id., quoting Twombly, 550 U.S. at 557. Accordingly, Rule 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 129 S.Ct. at 1951. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the pleader is entitled to relief.” Id., citing Fed. R. Civ. P. 8(a)(2).

Now I’m NOT overly confident the motion will be approved, as Judge Hegarty’s history on the matter is clear.  I’m no attorney or judge, but as there is some solid case-law supporting this motion, Judge Hegarty may have to take some time to adequately review all aspects of this case.  If this motion is successful, it will kill the Malibu Media cases (as currently written) until if/when they decide to file with some real evidence tied back to a Defendant.  For the Non-Malibu Media (Voltage Pictures) Mass Doe cases in CO, it would be devastating, as they conduct even less of a so-called “investigation” into the Defendants.
If the motion is denied, I hope an appeal is possible.  Any attorney please chime in on this.

I personally believe that for the majority of these BitTorrent Copyright Troll cases, there is NO investigation beyond obtaining the ISP subscriber data.  I assume that for a minimal number of cases, Troll Lipscomb/German Controlling Firm do make some investigative steps (LexusNexus background checks & social media checks) on the ISP subscriber.  Still this is NO “Investigation;” only simple data collection efforts, template based case filings, and high-pressure settlement generation efforts.  Combine these aspects with a court that is willing to rubber-stamp the proceedings and we have a mess.  For some people (Mr. Ross) this is OK, as our system of Democracy is so flawed – we should be willing to accept the fact that some Copyright Trolls are going to abuse people.  I guess he would call this the “Cost Of Doing Business.”  Well it isn’t a cost I will easily accept.

DieTrollDie :)

“DAMN THE TORPEDOS, FULL SPEED AHEAD!!”  –  {John Steele comment (My belief) made on 20 Feb 12} – failed attempt to portray himself as Admiral David Glasgow Farragut (1801-1870)

Bike_Fine1

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Settlement Demand Letters Sent Out On CLOSED Dallas Buyers Club Case – 1:14-cv-02168 (ILND)

Well at least we can count on the greed of the Trolls to direct their actions.  As I previously wrote, an ILND Dallas Buyers Club LLC case against 46 Does, #1:14-cv-02168, was closed by the court on 2 Apr 14.  The unusual aspect of the dismissal was that Judge Castillo explicitly allowed the Troll to still obtain the ISP subscriber information.  See my previous article – Judge Castillo’s Pure Bill Of Discovery 

love_punchCopyright Troll Michael Hierl has started to send out settlement demand letters for this CLOSED case.  Now he of course fails to tell the ISP subscriber that the case is closed – implies that they are part of an active case.  DBC_SettlementLTR

I have to say that at least with this settlement demand letter, he didn’t screw up with the amount they are seeking.  Here is another Dallas Buyers Club case (Archive Docket 1:14-cv-02163) settlement demand letter in the same district – The Troll cannot determine if they want $3,500 or $3,800 from the ISP subscriber.  I do find it interesting that for DBC cases in the ILND, that the amount is different.  This indicates to me that the Troll/Plaintiff is doing some sort of analysis to find an amount that an ISP subscriber is willing to pay.  I assume this is simply based on the area in which the ISP subscriber resides.   DBC Settlement Letter_02163(IL)

money_02163(IL)

As this case was dismissed without prejudice, Troll/Plaintiff could refile cases against single defendants.  As they have done nothing in the realm of an actual investigation, this action is reckless in my opinion.  Not to mention that it will cost the Troll $400 to file a case.  In the Minute Order, it clearly states what a refile of the complaint must encompass.

In the meantime, the current Doe complaint will be dismissed without prejudice to the filing of an appropriate amended complaint which names individual defendants that can be properly joined together in one lawsuit.  {my emphasis}

As the Troll doesn’t have the records to properly join the defendants, the cases will have to be single Defendants.  Also, the judge stated they need to be named and not just an IP address.  Now the Troll/Plaintiff could actually do this, but they then run the risk of someone fighting back and exposing more of the German BitTorrent apparatus (IPP/Guardaley/Excipio).

Now since there is no longer an open case, there is no longer a time constraint on the Troll.  With the exception of the 3-year Statute of Limitation on Copyright Infringement, he can string this out for a while.  The biggest thing he has to worry about is over time, any evidence on a Defendant’s computer could be damaged or destroyed in the normal operation of it.  But as it will never get that far, that fact is purely academic in nature.

So What To Do?

If this applies to your situation, I suggest the following *** For those of you who are not clear on this point (Mr. Ross), this means don’t lie or make a false statement. ***  Also, I’m NOT “engaged in the unauthorized practice of law.”  Don’t be stupid.  For all of these Non-Malibu Media Copyright Troll cases, I’m of the opinion that responding to the settlement demand letter with a simple denial is best.  Nothing fancy or elaborate, just a letter that states the following:

  • I didn’t download/share the movie in question.
  • I didn’t authorize anyone to use my network to download/share the movie in question.
  • I don’t know who could have downloaded/shared the movie in question.
  • I will not pay a settlement to make the threat of a law suit go away.

This informs the Troll that you are not afraid to respond to him and probably not the best target for a default judgement (failing to answer a summons/complaint).  Then sign & date the letter and make a copy for your records.  Mail it to the Troll via certified mail, return receipt requested.  That way you will have proof his office received it.

Based on all the trouble the Trolls are having with their association to the German BitTorrent monitoring firms, I really doubt there will be very many Does who are named and served with a complaint.  This of course will be on a case-by-case basis, as the Troll will assess the likelihood that serving a Defendant will bring them to the settlement table.  Note: If this does happen to a Defendant, I do have a couple of answer templates that you can use.   Defendant Answers

DieTrollDie :)  “The Defendants have liable Plaintiff under the disguise of such childish and unsophisticated pseudonyms as ‘die troll die.’”  – a statement like that could cost you $11K!

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Elf-Man LLC Dismisses Lamberson With Prejudice – # 2:13-cv-00395 (WA)

Well it was certainly something I didn’t want to see, but the judge in this case decided to allow Troll/Plaintiff to dismiss Defendant Lamberson WITH prejudice.   Doc_73_Dismissed_00395(WA)   The judge also decided to dismiss the counterclaims of Defendant Lamberson (without prejudice).  Previous articles on Elf-Man in WA – 1  &  2.

The court stated they were doing this because:

  1. Defendant Lamberson agreed to the dismissal (conditionally – only if Plaintiff pays his attorney fees/costs)
  2. Plaintiff dismissal request was “with prejudice,” preventing them from going after him later.

Note: the court DID NOT award Defendant Lamberson the requested $100,000 in attorney costs and fees as part of the dismissal.  When you read the order, you will see that the court was trying to avoid a possible appeal issue dealing with such an award condition.  I did find it very interesting to see what “words” the court used when it talked about this matter –“… imposition of sanctions against an attorney.”

The Court declines to grant Lamberson’s request that the Court impose payment of costs and attorney fees as a condition of dismissal—rather than allowing dismissal followed by a request for attorney fees. See Heckethorn v. Sunan Corp., 992 F.2d 240, 242 (9th Cir. 1993) (holding that district court’s condition that plaintiff’s former counsel pay attorney fees to the defendant had no basis because Fed. R. Civ. P. 41(a)(2) is itself not a specific statutory authority for imposition of sanctions against an attorney). Rather, the Court will entertain Lamberson’s timely motion for attorney fees and costs if there are independent grounds for asserting the same.  

As the court said it would “entertain” a timely filed motion for attorney costs and fees, I expect one will be filed soon.  As the dismissal of Lanbersen is “With Prejudice,” he is now considered the prevailing side and is entitled to reasonable costs and fees.  As of 3 Jul 14, Defendant Lamberson’s attorney costs were up to $111,725 (see para #37, page 14, Doc # 68  Doc_68DeclLynch).  Note: Defendant Lamberson was given a reduced rate by Attorney Lynch.  If the fees had been charged at a normal rate, I expect the total would be closer to $200,000.  Elf-Man LLC may turn out to be a loss for the Plaintiff/German Firm.

Now if the Troll/Plaintiff is smart, they will accept whatever award the court allows and try to slink away as quietly as possible.  As I don’t think they are too bright, they are likely to claim any award is excessive because Attorney Lynch ran up the costs/fees when there was no need.  I don’t think the judge will buy this and it will just mean additional fees to be added to the total.  Sure guys, follow the example of Prenda Law.  That worked out so well.

What this dismissal (and pending award) will do is make filing any new Copyright Troll BitTorrent case in WA using the German BitTorrent monitoring firms (IPP/Guardaley/Excipio) to be a really stupid move.  I think the Trolls already figured this out, as the Lamberson case was the last one to be filed in the jurisdiction (filed on 21 Nov 13).

The information disclosed in the Lamberson case will have a far-reaching effect.  With the exception of Malibu Media LLC and Dallas Buyers Club LLC, we have not seen any new Plaintiffs. Malibu Media is fighting hard in MD and I expect attorney Morgan Pietz is taking the information disclosed from the Elf-Man cases and making good use of it.  We have a hearing on 30 Jul 14, that should be interesting to say the least.

I also wonder if/when we will see any filings with new names (firms & personnel) for the German BitTorrent technical monitoring apparatus. Maybe we can think up a new name for their shell…   For the Elf-Man cases we had the shell company of Crystal Bay Corporation (CBC) and the mysterious Darren Griffin.  How about Mike Hunt?  Anybody seen Mike Hunt? – OK bad joke.  ;)

DieTrollDie :)    “Well that’s great, that’s just fuckin’ great, man. Now what the fuck are we supposed to do? We’re in some real pretty shit now man…” – Aliens – Hudson

redrum_Elf

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Elf-Man LLC v. 7 Defendants – Motion For Default Judgments DENIED, 2:13-cv-00115 (WAED)

3 Sep 14 Update

Today Judge Rice denied (with leave to renew) Troll/Plaintiff’s motion for default judgements against the seven remaining defendant in Elf-Man case 2:13-cv-00115(WA).   Default_Denied_Doc_121_00115(WA)pdf

The decision to deny the default judgements was based on the courts concern regarding the requested damage award and the merits of Plaintiff’s claims as questioned by Defendant Lamberson in case 2:13-cv-00395 (WA).

However, in this case, where Plaintiff has requested sizable statutory damages, and where a companion case has called into question the merits of Plaintiff’s substantive claims, the Court elects to exercise its power under Rule 55(b)(2) to “conduct hearings” to “determine the amount of damages” and “establish the truth of any allegation by evidence.” Fed. R. Civ. P. 55(b)(2).
Accordingly, the Court directs Plaintiffs to brief and provide evidence supporting its substantive claims and amount of damages against each defaulting defendant separately. Upon a showing substantiating Plaintiff’s claims against each Defendant, the Court will reconsider Plaintiff’s motion for default judgment and request for attorney fees.

So Troll/Plaintiff has been “directed to submit a memorandum and evidence in support of its claims against each defaulting Defendant and in support of its request for damages on or before October 6, 2014.”

Hole_Cat1Here is where Troll/Plaintiff has to weigh the benefit of actually submitting whatever evidence they have (or will possibly make up – My opinion).  Anything they submit will certainly be used by attorney Lynch/Defendant Lamberson.  We will see if they understand the first rule of holes.

As far as the Lamberson case, the judge has yet to rule on the motion for attorney fees and sanctions.  This denial does not fair well for Troll/Plaintiff in the Lamberson case, as the judge clearly has “concerns” on the validity of their claims.  Troll/Plaintiff may simply decide to let the 6 Oct 14, deadline pass and not file a memorandum and/or present evidence.  Simple enough to do, but that could further push Judge Rice to grant the motion for attorney fee and sanctions.  You just can’t make this stuff up.  ;)

I expect the judge will wait until after the 6 Oct 14, deadline to rule on the Lamberson motion.  In the meantime I’m sure we are going to see more stupid Copyright Troll tricks to provide amusement.

DTD :)

Happy 4th of July!!! 

Vintage_FW1LATE ADDITION -

Here are 5 document recently filed in the Elf-Man LLC v. Lamberson case, 2:13-cv-00395(WA).  I will likely make them a separate post, but until then, please enjoy them with your burgers, cold beer, apple pie, or what ever makes you happy.  Note: reading these while eating/drinking may not be advisable.  ;)    These documents are going to make a big bang!  Troll/Plaintiff/Germans are really not going to like these.  Especially the fees/costs amount Attorney Lynch is asking for – $100,000!

Shared Folder containing Lamberson Documents

On this grand anniversary, I salute all the Troll fighters out there and want to thank everyone for their support – every little bit matters.

Now while keeping up with the Elf-Man v. Lamberson case (2:13-cv-00395(WA)), I came across a Motion for a Default Judgment for the Elf-Man case that Lamberson spun-off from – 2:13-cv-00115.   Doc_112_Motion_Default_00115(WA)   Doc_112-1_Decl_Lowe_Default_00115(WA)   The case shows it was terminated as of 1 Jul 14, but we have yet to see the final court order awarding the damages against the seven defaulting Defendants.

This in my view is Troll/Plaintiff trying to close out this rather embarrassing affair and possibly come away with a little extra cash.  As Lamberson (via Attorney Chris Lynch) has this Plaintiff trying to run and hide, they would like nothing better than to close out the remaining cases before it get real ugly for them.

As to the Motion for Default Judgment, I’m saddened that these seven people are sticking their head in the sand and risking the judgment of the court after only hearing the slimy words of the Troll.  Once a BitTorrent Copyright Troll case gets this far (being served with a summons/complaint), it is time to consult with an attorney knowledgeable and experienced in these cases.  Yes it may cost you some money, but it is likely to be LESS than what a court may award the Troll/Plaintiff in damages.  This is especially true if you (or a family member) didn’t do this.  For further examples of what not to do, please see the Fightcopyrighttrolls.com article concerning Malibu Media/X-Art default judgments in PA.

Bottom Line

The Troll/Plaintiff is asking the court to award them $30,000 plus costs/fees PER Defaulting Defendant!

Now I don’t know what the court will actually award, but the MINIMUM the court can award is $750 plus reasonable costs/fees. As the Defendants did not bother to respond to the summons, the court will only hear what the Troll has to say.

What The Troll Claims

  • Copyright Infringement Has Been Proven – Hard for a judge to think otherwise or even see that you are NOT some type of serial infringer damaging the lives and income of some poor Plaintiff.
  • The Copyright Infringement Was Willful – Willful infringement will allow the Troll/Plaintiff to ask for the maximum statutory damage award – $150,000.

The troll even goes so far as to tell the court that since these Defendants refused to participate, Plaintiff was not able to “explore the full scope of their infringing activity which may have included the distribution of countless copies of Plaintiff’s work.” The Troll also claimed that since the defendants did not to file an answer, they amounted to actions to evade service and escape the court and thus were still a threat to continue the infringement.

The Problem For The Troll

This case was filed on 22 Mar 13, alleging that 29 Does “collectively acted” via BitTorrent and the copyright infringement arose “out of the same occurrences or transactions, or series of occurrences or transactions and that there are questions of law and fact common to each of the Defendants.” These statements were made by the Troll to justify the joinder of the Does under one case. Troll Plaintiff further reaffirmed this when they filed their First Amended Complaint.   FAC_Elf-Man_00115(WA)

Now with this Motion for Default, the Troll is asking for ONLY $30,000 plus costs/fees. They even go so far as to tell the court that they could be seeking $150,000 per Defendant, but they are trying to be reasonable. What a load of $#@^!

30K_00115(WA)

Their problem with this motion is that according to 17 U.S. Code § 504 – Remedies for infringement: Damages and profits, statutory damages (What Troll/Plaintiff is asking for) for two or more “jointly and severally” liable infringers is limited to a maximum of $150,000 (See (c) Statutory Damages).  The motion as written asks the court to award a total of $210,000 (7 Defendants X $30K), plus approximately $23,555 in costs/fees (7 X $3,655).  Actual requested Total is $233,970.29.

Another Troll Insult

This is one I find particularly low, even for slimy Troll/Plaintiff.  Did you notice that two of the Defendants have the same last name (Barnett) and reside at the same residence???  I don’t know if this is a Husband and Wife, but I do know that the alleged date/time of infringement and the public IP address are the same.   Barnett_00115(WA) Most likely both of the Barnett’s names were on the ISP account.  So is the Troll saying that because there are two names associated with the same IP address, they can seek double damages??? OR are the idiots claiming that it was downloaded/shared via two different BT clients on the same IP address from BOTH Barnetts??? This is just wrong.

Settlements So Far

Now I haven’t had a chance to try to guess the number of settlements the Troll was able to get, but I would estimate those settlements were at least a couple thousand dollars per Doe.  The exact amount Troll/Plaintiff received could be a relevant factor in adjusting the award of damages the court will eventually order.  For example, if the Troll was able to collect $25,000 from Does who initially settled, this could be factored into (reducing) the statutory damage award.  Example: Statutory damage award of $30,000 – $25,000 (Settlements) = $5,000 plus fees/costs.  So for the defaulting Defendants, I will suggest that if Troll/Plaintiff actually comes after you for collection, you need to hire an attorney and explore this avenue.

In my opinion, this scum-bag Troll dealing is exactly why the former Troll Attorney Maureen C. VanderMay had to remove herself from this case.  Go figure.

Issues have arisen with Plaintiff’s representatives that preclude me from both continuing with representation of Plaintiff and complying with the governing rules of professional conduct. {Troll VanderMay, ECF#109-1, 2:13-cv-00395(WA)}

DieTrollDie  :)

A_FY1

 

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