As many of you know, a good number of the motions to dismiss filed by Does and their attorneys are kicked to the curb by the courts. We have had some notable successes in the courts that don’t have the rubber stamp of “Approved,” ready for the ISP subpoenas. I will add to/update this post with more information – just wanted to get it out to all the Does and Copyright Defense Attorney out there.
On 9 Jul 12, Samuel Perkins (BRODY, HARDOON, PERKINS & KESTEN, LLP), Boston, MA, filed a motion to quash the subpoena and sever claims for John Doe #22, 1:12-cv-10805, Discount Video Center, INC. v. Does 1-29. Doe 22 Motion to Quash The thing that makes this MTQ interesting is that in addition to the reason stated in previous MTQ/Ds, this MTQ relies on these arguments.
- The Plaintiff and Plaintiff’s Counsel Have Engaged in Bad Faith
- Naming Subscribers As Defendants and Subpoenaing Their Identities
Without Any Factual Basis Is An Abuse of Process
- The Plaintiff’s Claim of Concerted Action As Justification for Joinder
The main argument that Mr. Perkins makes is that Plaintiff’s counsel (Troll Marvin Cable) is a partner with the Copyright Enforcement Group (CEG) and –
Over the last few years, CEG and its “partner” law firms have sued thousands of Internet subscribers for copyright infringement, even though the Plaintiff copyright holders, CEG and “partner” counsel concede that 30% of the Defendants they name were not involved in the alleged downloading. Other CEG “partner” counsel have disclosed in federal court that they believe that “30% of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material.” Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239 (S.D.N.Y. 2012).
Naming the subscribers as Defendants – rather than seeking information from the subscribers about the actual downloaders – violates Fed. R. Civ. P. Rule 11’s requirement that “the factual contentions [i.e., that the twenty-nine Defendants each were personally involved in downloading copyrighted material] have evidentiary support . . .” An attorney’s signature on a motion or pleading means “that to the best of his or her knowledge, information, and belief there is good ground to support the contentions in the document, both in terms of what the law is or should be and in terms of the evidentiary support for the allegations, and that he or she is acting without an improper motivation.” The Elements of the Standard of Certification, 5A Fed. Prac. & Proc. Civ. § 1335 (3d ed.) However, when this action was filed, the Copyright Enforcement Group and the Plaintiff were just as aware as Plaintiff’s counsel that nearly one-third of the Defendants they sued did not download “Anal Cum Swappers 2.”
Love the title of the movie! Nobody would ever settle out of fear of being associated with downloading that film. Yeah right.
I love the argument, and I believe it can be tailored to other Trolls as well.
On 10 Jul 12, the court issued this order which seems to say that court thought Plaintiff was going after actual infringers and did not know of the 30% error rate that Plaintiff told a NY court previously.
Ch. Magistrate Judge Leo T. Sorokin: ELECTRONIC ORDER entered. Plaintiff shall respond to the pending Motions to Quash (Docket #s 12 and 16) by July 20, 2012. In its response to the Motion to Quash the Plaintiff shall state whether the John Doe defendants named in its lawsuit are the alleged infringers or the subscribers. If Plaintiff takes the position that it has sued, only, the alleged infringers it shall address (1) why the notice it proposed to the Court (Docket #5-1) for service with each subpoena states the “subpoena has been issued because you [the subscriber] have been sued…. as a ‘John Doe’… for infringing copyrights” and (2) whether any portion of the complaint, subpoena or notice requires amendment (and, if so, which portion(s)). If Plaintiff takes the position that it has sued the subscribers then it shall state the basis for suing a subscriber if the subscriber did not participate in the alleged infringement. In addition, Plaintiff shall address the assertion in the pending motion to quash (#12) that approximately thirty percent of subscribers are not the person that committed the infringement. To promote judicial economy in light of the overlap between the issues raised in the pending motions to quash and the earlier motion to quash filed in this case, the Court hereby: VACATES the Report and Recommendation (Docket #12) previously issued in this case and schedules a hearing on both motions to quash for July 30, 2012 at 4 p.m. in Courtroom #24. (Simeone, Maria)
I can see a Troll soiling his pants and working hard as hell to salvage a case and prevent possible sanctions. LMAO! 30 Jul 12, should be an interesting day.
Please take a read of the MTQ and give me your thoughts on it. Nice work Mr. Perkins.