Defendant Motions Court To Make Malibu Media LLC Attach All Referenced Files/Documents In Complaint (1:12-cv-01117 (SDIN))

8 Aug 13 Update

A few things have happened in this case and I want to make sure people have the chance to digest the information.  I will not be able to make a full post right now.   Case Docket

Please read and give me your thoughts on these developments.

DTD 🙂

19 Jul 13 Update

Shortly after the initial post, I found out that the court denied Mr. Harrison’s Motions to Dismiss and Attorney fees.   MTDA_Denied_01117(IN)   I wasn’t too shocked, as to open these cases does not require much information.

The court did NOT rule on the Motion to sever or the Motion to require Plaintiff to attach full copies of the documents and AV files they reference in the complaint (see below).  The possibility of severance is good, as I really doubt Plaintiff can show any solid linkage of Mr. Harris and Mr. Harrison beyond the SHA-1 hash number.  The 59 days between the alleged downloading/sharing of the movie is indicative of “separate but similar actions,” not the same action.

DTD 🙂

———————————————————————————-

This case has been around for a while (14 Aug 2012) and it has some interesting twists and turns to it.  The case is 1:12-cv-01117, Southern District of IN, Malibu Media LLC v. Hind, et al (John Does 1-11).  The Copyright Troll is Paul J. Nicoletti.

The case started out with 11 Does, but currently has three defendants (two active) – One Pro Se, One represented by Attorney Gabriel J. Quearry, and one defendant who has had a default judgement entered against him.   3rdAmdComplaint_01117(IN)   3rdAmdComplaint_ExA_01117(IN)   3rdAmdComplaint_ExB_01117(IN)   3rdAmdComplaint_ExC_01117(IN)

As this Malibu Media case is from last year, it started out with 11 Does from within the same jurisdiction and one movie (Pretty Back Door Baby).  HUBD1  *** As this case was not a well-known one, I wasn’t able to pay for/RECAP all the documents.   Please feel free to send me (or RECAP) additional case document – I will add them to the article. ***

This case caught my attention for a couple of reasons.

–       A swarm joinder case where one of the non-settling Defendants (Robert Johnson) had a default judgment issued against him on 12 Apr 13 (ECF # 70).  No damages have been awarded by the court at this time.

–       A Pro Se defendant (Michael Harris) filed an answer to the complaint (ECF # 64) on 27 Mar 13.   Harris_AnswerComplaint_01117(IN)   I must say much of the wording looks familiar.  What is key to this answer is Mr. Harris states in no uncertain terms that he does not own a computer with BitTorrent installed and did not infringe upon plaintiff’s works.  Take a read through the Eleven Defense claims, as there are some interesting aspects/arguments.  I especially like the defense that Plaintiff failed to join an indispensable party to the law suit – the initial seeder of Plaintiff’s work via BitTorrent.

This leaves Plaintiff with the option of deposing Mr. Harris (as well as others in the residence) and/or a forensic examination of the computers/Internet capable devices in the residence.  If Plaintiff is unable to obtain any direct or circumstantial evidence via discovery, Mr. Harris may be in a good position to ask for a summary judgment.  I expect Nicoletti to ask the usual stupid question, like “Are you knowledgeable about computers?  Do you play online games?  Have you ever downloaded or streamed a movie via the Internet?”

Now I do hope Mr. Harris is being truthful and we do not have another issue of spoliation like the PA Bellwether case.  No offense meant – just playing “Devil’s Advocate.”  Note: On 17 Apr 13, Nicoletti made a motion to strike Mr. Harris’s answer (ECF # 73).  I haven’t had a chance to read it, but I expect the usual garbage response.  The court has not ruled on this motion yet.

–       A defendant (Michael Harrison) represented by Mr. Quearry (QUEARRY LAW, LLC) has filed a couple of motions – Motion to sever, Motion for attorney fees, and Motion to dismiss for failure to state a claim.

As far as the severance issue, the only remaining defendants (Harris {Doe # 4, 69.136.163.46, 1 Jun 12} & Harrison {Doe #6, 98.220.43.119, 30 Jul 12}) have alleged BitTorrent activity of approximately two months apart.   3rdAmdComplaint_ExA_01117(IN)   I can’t wait to see what Nicoletti/Lipscomb come up with to justify joinder.  I really doubt they have any evidence to show that Harris and Harrison’s public IP address exchanged any data. The only thing that is the same is the SHA-1 hash file for the movie.

What is really interesting is that Mr. Harrison filed a “Motion For Order Requiring Plaintiff’s Immediate Filing Of Documents And Audio-Visual Works Incorporated By Reference In Plaintiff’s Third Amended Complaint As Exhibits Attached To Its Third Amended Complaint.”  (Wow! That is a mouthful!)   Doc107_01117(IN)   This is an interesting move by Mr. Quearry.  Mr. Quearry is telling the court that all of the documents and audio-visual works reference by Plaintiff in the third amended complaint should be attached in full.

This Court should grant Harrison’s Motion because the incorporation-by-reference doctrine requires that Plaintiff Malibu Media, LLC (“Plaintiff”) attach any document or audiovisual work referenced in its Third Amended Complaint (“Complaint”) to its Complaint. Plaintiff is required to do so in order for Harrison to submit said documents and audio-visual works to the Court as part of his Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted.

Mr. Quearry want the following documents/AV works added to the complaint as full exhibits

  • Subpoena responses from the ISPs for John Does 3 and 9, Pl. Compl. ¶ 5;
  • The motion picture entitled “Pretty Back Door Baby” for United States Copyright Registration Number PA0001789427, Pl. Compl. ¶ 16; 
  • IPP, Limited (“IPP”) evidence logs showing transactions for each joined Defendant’s IP address connected with the file identified by the SHA-1 hash value of B17E6CBB71FF9E931ED034CFC5EC7A3B8F29BB1E (the “Unique Hash Identifier”), Pl. Compl. ¶¶ 43, 44; 
  • IPP evidence logs showing each “hash identifier piece” distributed by the IP address of each joined Defendant, Pl. Compl. ¶¶ 25-27, 46; IPP evidence logs showing transactions for the individual’s IP address who created the torrent descriptor file for the file identified by the Unique Hash Number and initially seeded the file identified by the Unique Hash Number, Pl. Compl. ¶¶ 24-27; and,
  • The fully playable digital motion picture of “Pretty Back Door Baby” that correlates with/to the Unique Hash Number, Pl. Compl. ¶¶ 46, 47.

You can image that Lipscomb went through the roof reading this.  On 3 Jul 13, Nicoletti filed their response to the motion.   PlaintiffResp_Doc109_01117(IN)   It will be interesting to see what the court thinks of this motion.  I also look forward to hearing from some our keen Doe defenders on the merits of this motion.

–        The last part of this case are a scheduling order issued by Judge Dinsmore on 9 Jul 13 (ECF # 110).   SchedulingOrder_01117(IN)   In addition, the court published the minutes from the Pretrial Conference that took place on 9 Jul 13.    Minutes_Doc111_01117(IN)   It appears the court will in the future issue a new scheduling order as agreed upon by all parties.   The court has set the following initial deadlines.

  • Telephonic status conference on Friday, September 13, 2013 at 3:00 p.m.
  • Settlement conference on Monday, April 14, 2014 at 8:30 a.m.

I loved this part of the instructions – apparently based on the Prenda side-show in Florida.

Unless excused by order of the court, clients or client representatives with complete authority to negotiate and communicate a settlement shall attend the settlement conference along with their counsel.

And

In addition, unless excused by written order of the court, every individual party, and an officer (President, Vice President, Treasurer, Secretary, CEO or COO) of every corporate entity that is a party, shall attend the settlement conference.

The settlement negotiations part of the minutes is particularly interesting and starts on page 3.  I know I will have more to say on this case and what Plaintiff decides to do.  Please take a read of the various documents and tell me what you think.  There is much to digest.

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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10 Responses to Defendant Motions Court To Make Malibu Media LLC Attach All Referenced Files/Documents In Complaint (1:12-cv-01117 (SDIN))

  1. Fasolt says:

    Whoa, wait a minute. Did Nicolleti actually mean this in the Plaintiff’s response?

    “Finally, Defendant has stated no reason why the requested evidence cannot be obtained using normal discovery procedures at the appropriate time and subject to the relevant federal rules.”

    Here’s the money quote:
    “The Court should not allow Defendant to engage in a frivolous fishing expedition violating discovery rules, procedures, and norms under the guise of a doctrine that’s purpose would not be served in this case.”

    How about the Court not allowing the Plaintiff to engage in fishing expeditions to gather Doe subscriber information by violating discovery rules, procedures, and norms under the guise of a doctrine that’s purpose would not be served in this case?

  2. Raul says:

    This one is very interesting and will be followed closely.

  3. Anon.E.Mous says:

    Fasolt beat me to the Deja Vu moment about Nicoletti complaining about a fishing expedition….lol..
    Obviously this Judge has read the order from Judge Wright and I think he is aware that Malibu is a copyright troll. Smart Judge he has the scent, let see where this goes.

  4. Backdoor Teen says:

    Only in America could someone sue in a Federal Court for $ 150,000 over a short video clip of teens having anal sex. Malibu Media/X-Art, Colette and Brigham Fields sure are festering boils on the buttox of humanity. When are Federal judges going to wake up and alert the Justice Department about violations of Federal obscenity laws? .

  5. anne mouse says:

    Expect Nicoletti to win on the question of whether the film needs to be attached to the complaint.

    Ditto on “failure to join an indispensible party”.

    These are examples of creative thinking, but both are extremely long shots and may annoy the judge since the defendant is effectively asking for the usual procedural rules to be disregarded.

    Very briefly, a complaint is supposed to be “short and plain”, you are NOT required to include all of your evidence. That’s what discovery is for. (The “fishing expedition” rhetoric IS silly, but you see, they did their fishing through discovery…)
    Without even reading the complaint, I am pretty certain that the type of documents that Harrison is asking for were not “incorporated by reference” in the complaint. That just doesn’t make a lot of sense.
    And the “indispensible party” argument seems hopeless, though maybe I should read it first to see if there’s more to it than was mentioned in the summary – maybe there’s some creative argument to show that the seeder really is indispensible. As a general proposition, you do not have to sue the seeder in the the same action in order to sue a downloader.

  6. anne mouse says:

    DTD, I just read Harrison’s Seventh Defense (failure to join an indispensible party), and it has absolutely nothing to do with the seeder. Harrison is simply restating his “I didn’t do it” defense, that the IP address identified by plaintiffs does not identify him personally. Whoever *did* participate in the swarm is the “indispensible party” in Harrison’s argument.
    This is not the way the “indispensible party” defense is normally used. The way it usually goes is, “you can’t sue me unless you also sue him”, either for reasons of jurisdiction, or because the outcome of the trial depends on some crucial factor that can’t be decided without involving the absent party as a litigant. A “you’ve got the wrong guy” defense is different: you can easily litigate such a case to its conclusion (“not liable”) without even knowing who the right guy is, much less including him as a defendant.

  7. DieTrollDie says:

    A few things have happened in this case and I want to make sure people have the chance to digest the information. I will not be able to make a full post right now. Please see the update to the case in the body of the post.

    – Default judgement against Mr. Johnson for $20,000.
    – Mr. Harrison’s motion for an order to compel and costs/fees against Plaintiff for failure to disclose required documents, files, electronic data, etc., as required by the scheduling order.
    – Mr. Harrison’s answer to the third amended complaint.

    DTD 🙂

  8. Pingback: Malibu Media Fails At Discovery – Malibu Media v. Mr. Harrison, 1:12-cv-01117 (SDIN) | DieTrollDie

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