Motion to Quash/Sever/Dismiss, Doe 148, Digital Sins, Inc., v. Does 1-245, Case 1:11-cv-08170 (NY)

Thanks Raul for keeping up on things and passing along the interesting bits to post.

The attached Motion to Quash/Sever/Dismiss is for Digital Sins, Inc., v. Does 1-245, Case 1:11-cv-08170, filed in the  Southern District of New York.  Doe 148 filed this motion via his Attorney, Yasha Heidari, Heidari Power Law Group LLC, Atlanta, Georgia. 

Very nicely written MTQ/S/D.  I will also add it to the Motion page for those looking for examples/templates. 

I really like the Background section that clearly informs the court (and others) what a scam these types of law suits are.  The motion argues three main points:

  • PLAINTIFF FAILS TO MAKE A PRIMA FACIE SHOWING ALLEGING
    PERSONAL JURISDICTION OVER THE DOE DEFENDANTS
  • PLAINTIFF HAS IMPROPERLY JOINED 245 INDIVIDUALS FOR
    DISTINCTLY SEPARATE TRANSACTIONS AND OCCURRENCE
  • THE SUBPOENA MUST BE QUASHED, OR AT A MINIMUM, A
    PROTECTIVE ORDER SHOULD BE ISSUED

I really like this paragraph of the motion.  “Plaintiff’s so called technical specialist’s methods, sweeping allegations, and hyperbolic liberties it takes with reaching accusatory conclusions, should be noted and called into question.”  As well as this bit –Also noteworthy is the fact that the supposed Affidavit by Jon Nicolini cannot be found on the docket.”  I don’t doubt the Troll has some document, it is just funny that they didn’t provide it.  It is sad that the court didn’t notice the missing claimed document, as it is central to getting the subpoena granted. 

In the instant action, Plaintiff’s crucial allegation that defendants are all part of the same “swarm” is unsupported and Plaintiff proffers a sample of what a swarm is supposed to be like, instead of offering evidence of the alleged actual swarm in this case. In fact, all of Plaintiff’s so called technical specialist’s methods, sweeping allegations, and hyperbolic liberties it takes with reaching accusatory conclusions, should be noted and called into question. Also noteworthy is the fact that the supposed Affidavit by Jon Nicolini cannot be found on the docket. Nonetheless, the allegation that defendants are part of the same “swarm” for any alleged file sharing, which would confer joinder, has been expressly rejected by Courts throughout the country as a basis of conferring joinder.

Well enjoy the read.  I did!

DieTrollDie 🙂

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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18 Responses to Motion to Quash/Sever/Dismiss, Doe 148, Digital Sins, Inc., v. Does 1-245, Case 1:11-cv-08170 (NY)

  1. Regarding the “swarm joinder theory”. The best analogy I found was in this paper:

    Particularly in mass file-sharing cases, plaintiffs have brought suit against a multitude of defendants, with the only rationale for the grouping being that the same copyrighted work was downloaded. In these suits, the defendants were often from different states, downloaded the file at different times and from different sources, and, in some instances, downloaded different files.This would be analogous to joining separate and unrelated crimes committed by separate and unrelated criminals simply because the same model of television was stolen.

  2. Anonymous says:

    How do you think this applies to cases where they are accusing people of “hacking” porn sites by using logins/passwords found on the web? Are they claiming the Does can be joined because they all used the same login/password? Isn’t that sort of a form of entrapment since they didn’t shut down the abused login but instead let people continue to use it in order to ensnare more people?

  3. Raul says:

    DTD- Judge Rainey of the Southern District of Teas issued a lengthy (10 pages) Memorandum Opinion & Order granting Doe’s Motion to Quash and Sever after weighing all arguments carefully
    http://ia700807.us.archive.org/30/items/gov.uscourts.txsd.912421/gov.uscourts.txsd.912421.25.0.pdf

  4. Anonymous says:

    Can you break that down for us? From what I read it appears that the entire case was dismissed for all of the Does but one? And that if K-Beech wants to continue action against any of those Does, limited to the those residing in the courts jurisdiction, that they would have to file individually against them?

    • DieTrollDie says:

      All the Does except for #1 were dismissed without prejudice. The Troll can refile cases, but the judge told them they have 30 days to do that and pay $350 a peice.

      DTD 🙂

  5. Fullmetalphx says:

    currently I an one of those people who i going to be contacted wanting to settle the matter is there anything i can do about this, like is there someone in Arizona who can help with this?

  6. Raul says:

    Do you want to settle for approximately 3K or do you want either wait it out or retain counsel? The majority of Does wait it out and emerge unscathed.

  7. Fullmetalphx says:

    I dont want to pay the 3K. so if i just wait it out i shouldnt do anything or respond to them. but i called the lawyer that is handling the case and he said that if i dont settle they would send someone to get my PC and they would check for proof. can they really do that, im seriously freaking out because i dont have the money to settle but i also dont want to have end up going to court.

    • Raul says:

      They cannot conduct a forensic examination of your computer without (a) a court order or (b) your dumb-ass consent. (a) in all likelihood will not occur an such examinations are expensive and you have been warned to not let (b) occur. Try to take a deep breathe and not worry, is this a Prenda suit?

    • DieTrollDie says:

      Boy I started to laugh out loud when you said they were going to send a guy over to conduct a forensic exam. The lines of BS they throw out is amazing. As Raul stated, don’t believe it! Just give them the Richard Pryor Response if you get them on the phone again. Raul has a good handle on what is going on here – heed his words. Unless YOU give the Troll some other evidence – Admit that you or a family member did it or possibly did it OR let them examine your computer(s), the only weak evidence they have is your public IP address. The Trolls know this and that is why they are so hesitant to actually name Does and move forward with cases.

      DTD 🙂

  8. Raul says:

    There is an attorney by the name of Richard Flaaen who is representing two Does in two separate cases in AZ. His info is here http://lawyers.law.cornell.edu/lawyer/richard-flaaen-674474 If yours is a K-Beech case let me know and i will give you some info that will help your case (begging DTD’s tolerance of course).

  9. Raul says:

    Finally, a lot of your questions and concerns are addressed here https://dietrolldie.com/newbie-noob-start-here/ After getting up to speed, please let us know what is going on, there is a HUGE community of similarly situated Does who will try to help you as we all work our way out of Troll Forest. Also if you have not done so already check out DTD’s sister in arms http://fightcopyrighttrolls.com/

  10. Fullmetalphx says:

    thanks alot guys that really puts my mind at ease and ill check out all those links 🙂

  11. Fullmetalphx says:

    well after reading the info in those links i found out that the law firm that issued the subpoena is “Carroll Law Firm.” is one of those partners mentions in http://fightcopyrighttrolls.com/
    as to what kind of suit it is im not sure the papers dont mention anything on it, it just says
    Digital Sin, Inc.
    Plaintiff,
    vs.
    Does 1-187,
    Defendants

  12. Raul says:

    You are being accused of infringing on the copyright for “My Little Panties #2” (a Mike Meier title…hmm?) and the previously purchased case history can be found here http://ia700806.us.archive.org/12/items/gov.uscourts.azd.670417/gov.uscourts.azd.670417.docket.html otherwise get a PACER account and be proactive or follow the case as best you can on http://www.rfcexpress.com/index.asp (this is no time to be a slacker).

  13. Fullmetalphx says:

    yup thats it, ill keep an eye on this thanks

    i see that there has already been a motion to quash. does that apply to all the defendants or just the one who hired the layer?

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