Seth Abrahams’ Opposition to Hard Drive Productions’ Motion to Dismiss, Case # 3:12-cv-01006″

Well on 21 Mar 12, the opposition to Hard Drive Productions (HDP) motion to dismiss was filed in US District Court, Northern District of California (Oakland Division).  Opposition_MTD_01006(CA)  – (3:12-cv-01006-JCS, SETH ABRAHAMS, Plaintiff, v. HARD DRIVE PRODUCTIONS, INC., AND DOES 1-50, Defendants).  Based on the previous postings, the details are not shocking, but still fun to read.  McClellan and Yuen (Mr. Abrahams Attorneys) make a logical and very straight forward argument as to why the motion to dismiss should be dismissed by the court. 

HDP (Troll Brett Gibbs) claims the case against them should be dismissed because of:

  • Improper venue
  • No case or controversy
  • Same legal issues as in HDP case C 11-05634

McClellan and Yuen refute these claims by clearly showing the following:

  • Jurisdiction is appropriate because HDP’s agents are found in this district – Stated as such in official court documents.

Here, the determination of whether the majority or minority view applies is irrelevant as the facts show Hard Drive obtained discovery from the courts based on its representations that venue is proper in this district. This is because in both of Hard Drive’s prior action and present action relating to the alleged copyright infringement by other defendants and Mr. Abrahams, it obtained relief from the court by judicially admitting that venue was and is proper in this district.

  • A case/controversy exists between HDP and Mr. Abrahams because Plaintiff has – Threatened a law suitDemanded $3400.00 to settleTold Mr. Abrahams he is absolutely liable through his ISP – Told him to preserve evidence or face additional chargesAnd that he is one of Prenda Laws “Top Pirates” by listing his name on their Web site.

Hard Drive’s conduct, to date, is no different than the patent owner in SanDisk. Mr. Abrahams has already presented evidence of Hard Drive’s extra-judicial copyright enforcement in order to scare him into settling. (See section B.2.b. at 8:3-19.) Undoubtedly, it is certain that Hard Drive has also engaged in scare-the-customer-and-run tactics against all defendants that it has obtained personal information for. (Exhibit I at .) For example, Hard Drive’s agent’s custodian of records declared under penalty of perjury that Hard Drive has filed at least 37 lawsuits naming 3,480 Doe defendants, yet has served no defendants. (Exhibit I at pp. 4-6.) Given this evidence, Mr. Abrahams has shown that an actual and justiciable controversy exists between him and Hard Drive regarding the validity of its purported copyrighted work and Mr. Abrahams’ alleged non-infringement. As such, he respectfully requests the court to deny Hard Drive’s motion to dismiss in its entirety.

  • According to previous statements from Plaintiff, Mr. Abrahams is not a party to HDP case C 11-0563.

Hard Drive previously filed its opposition to Mr. Abrahams’ administrative motion to consider whether cases should be related in its prior action. (Exhibit H.) Specifically, Hard Drive represented to the court that “the cases referenced in the Motion involve distinct factual matters and different defendants…” (Exhibit H at 1:27-2:1.)

Hard Drive is now judicially stopped from contradicting its prior representation that its present action and this action are now duplicative. (Exhibit H at 1:27-2:1.) The court should deny Hard Drive’s motion as it is clear that Hard Drive is trying to play “fast and loose with the courts.” (See Rissetto, 94 F.3d at 601, citation omitted.)

McClellan and Yuen even go so far as to ask the court in the event it decides to dismiss Mr. Abraham’s case, that he be allowed to “intervene” in the previous HDP case (which Plaintiff claims he is not a part of, but threatens him as if he were).

On timely motion, the court may permit anyone to intervene who: … has a claim or defense that shares with the main action a common question of law or fact.” (Fed. R. Civ. P. 24(b)(1).) Hard Drive readily conceded that its and Mr. Abrahams’ action involve the same factual and legal issues.  (Motion at 9:17-19, Docket 8.) As such, if the court is inclined to grant Hard Drive’s motion to dismiss, at a minimum, the court should stay such an order to provide Mr. Abrahams time to file his motion for leave to intervene. This will allow Mr. Abrahams to deny Hard Drive’s claims, and provide him with an opportunity to present his counter-claims which are absent in Hard Drive’s present action.

On 25 May 12, at 1:30 p.m (PST), this issue will be heard by Judge Joseph C. Spero.  I really hope the EFF (or other attorneys) attend this hearing and Tweet out what happens.  I would love to visit the Bay Area and have an Anchor Steam after the hearing.  I may only be a laymen, but I can’t see how this can really go bad for Mr. Abraham and his attorneys.  The absolute worst case is that Judge Spero decides to dismiss the case.  Even so (Unlikely IMO), the facts and legal issues clearly would allow Mr. Abrahams to intervene into the previous HDP case to deny claims and file counterclaims for damages.  This like watching a chess match where one players slowly pushes the king into a corner until “Checkmate!” 

I have really got to laugh at the mess HDP and Prenda Law has made.  I can only think of the quote, “Give them enough rope to hang themselves.”

DieTrollDie :

“Some ships are designed to sink…others require our assistance”

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 -
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11 Responses to Seth Abrahams’ Opposition to Hard Drive Productions’ Motion to Dismiss, Case # 3:12-cv-01006″

  1. Raul says:

    Kinda reminds me of that old Ted Nugent song “Stranglehold”.

  2. Tech says:

    Awesome, I’m currently in Mark Lutz harassment land post-dismissal and wondering if Prenda is really stupid enough to try to harass individual does in CA with Yuen kicking their door down.

  3. blind@justice says:

    I would really like to see some of that “hubris” from Steele’s “La Cosa Nostra” (our thing). Organised criminal enterprise in a “legal” corporate business.

  4. John Doe says:

    FYI an Amended Complaint was posted yesterday. Hopefully someone will post it up soon.

  5. Anonymous says:

    Yuen has updated the complaint to go after Hard Drive Productions, Inc. and Prenda’s conspicuous lack of effort to protect copyrights via DMCA takedowns or suits against BitTorrent trackers. He also cites Hard Drive Production’s share of the Prenda lawsuits where no defendants were served, via Gibbs’ declaration in one of their California cases. That is turning out to be the gift that keeps on giving, so much so that in Florida Prenda’s puppet Joseph Parea requested sanctions against a Doe and his lawyer simply for filing the Gibbs declaration as a way of illuminating Prenda’s behavior pattern.

    I believe all the new stuff is together in one block, but everyone should have a look and see if they can find something interesting.

    37. Plaintiff, through his counsel, has searched the website and   found   no   exemplars   of   any   Digital   Millennium   Copyright   Act   (“D.M.C.A.”)   takedown   notices   issued by Hard Drive.

    38. Plaintiff, through his counsel, has searched the Federal PACER website, and of the 59 lawsuits filed by Hard Drive, none of them involve a lawsuit against a BitTorrent tracker defendant for D.M.C.A. liability.

    39. Plaintiff, through his counsel, requested Hard Drive to provide any evidence that it has issued D.M.C.A. takedown notices to any BitTorrent tracker owner, or that it has sued any BitTorrent tracker owner for D.M.C.A. liability yet Hard Drive refused to provide such information.

    40. Based  on  Hard  Drive’s  previously stated refusal and the previously stated allegations, plaintiff can only conclude that Hard Drive has no such evidence as a reasonable person would have provided such information in lieu of attempting to move for sanctions under rule 11.

    41. Plaintiff, through his counsel, has searched the Federal PACER website, and of the 59 lawsuits filed by Hard Drive, none of them involve a lawsuit against a BitTorrent tracker defendant for D.M.C.A. liability.

    42. Based on the previously stated allegations, Plaintiff is informed and believes, and thereon alleges that Hard Drive never issued any D.M.C.A. takedown notices to the owners and/or operators of the BitTorrent trackers that were being used to distribute the work.

    43. On or about March 6, 2012, Hard Drive filed a lawsuit against 59 Doe defendants for infringement of its purported copyright.

    44. On or about March 2, 2012, Hard Drive filed a lawsuit against 54 Doe defendants for infringement of its purported copyright.

    45. Hard  Drive’s  agent’s  custodian  of  records  has  declared  under  penalty  of  perjury  that  it   has filed at least 37 lawsuits naming 3,480 Doe defendants yet has served no defendants.

    46. Plaintiff is informed and believes, and thereon alleges that Hard Drive continues to track and log IP addresses, and continues to sue Doe defendants corresponding to these logged IP addresses for infringement of its purported copyright since March 2011 yet at the same time has never named the owners of these BitTorrent trackers as defendants for D.M.C.A. liability in these lawsuits.

    • Raul says:

      Kinda makes a person wonder as to whether this case and the Wong case are judicial trial balloons while a later class action is being contemplated?

      • Anonymous says:

        Yes it does.

        *Tear the scam apart with a carefully-picked Doe
        *Start class action and open the floodgates

  6. Pingback: 31 Jul 12 Update – Seth Abrahams v. Hard Drive Productions, Case # 3:12-cv-01006 | DieTrollDie

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