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.
- 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 suit – Demanded $3400.00 to settle – Told Mr. Abrahams he is absolutely liable through his ISP – Told him to preserve evidence or face additional charges – And 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!”
“Some ships are designed to sink…others require our assistance”