13 ZAMBEZIA FILM Cases (WDWA) Have 60 Days To Complete Discovery & Serve Defendants – 2:13-cv-00318

KCDTDO1I was recently asked to revisit a previous article/Cases to check on its status.  The Plaintiff is Zambezia Film (Pty.) Ltd, and they have 26 multi-Doe cases opened in FL, IL, CO, TN, and GA.  The cases were opened between 25 Jan – 6 Mar 2013.  Note: on 5 & 9 Apr 13, Seven single Doe cases (un-named/i.e. Doe 43) were opened in the Florida Middle District.

Here is my previous Zambezia article, dated 23 Apr 13 – ZAMBEZIA FILM (Pty.) Ltd Wants A “Tap” – 2:13-cv-00308 (WA)  

On 2 May 13, Judge Robert S. Lasnik, Western District of WA, put a hold on subpoenas granted to Plaintiff on 13 WA cases.  He also issued a show cause order concerning joinder and that ”…plaintiff was using the judicial authority of the United States to wrest improvident settlements from pro se litigants under threat of huge statutory penalties.”   10Sep13_Docket_00318(WA)

On 24 May 13, Plaintiff responded to the show cause order – Sorry I haven’t downloaded that document/exhibitsNote: they also finally filed a notice of related cases that must have slipped their mind.  Also filed under seal was some limited communications between Plaintiff and Doe defendants.

On 7 Aug 13, Judge Lasnik issued his order concerning joinder and the possibility that Plaintiff was abusing the court to generate settlements from Doe defendants.   Doc21_Order_00318(WA)

The judge was of the opinion that joinder of multiple defendants was appropriate in these cases, but it did not appear Plaintiff actually wanted to litigate these cases.

To be clear, the Court finds that joinder under Rule 20 for purposes of prosecuting copyright infringement claims against members of a swarm in a single lawsuit can be appropriate. There is no indication, however, that plaintiff was actually prosecuting any of these actions.  Despite receiving identifying information regarding some of the individuals associated with the IP addresses at issue, plaintiff failed to affect service, asserting that complications in obtaining subscriber information regarding every IP address somehow prevented it from naming any individual defendants.

AND

In addition, the failure to prosecute the actions suggests that the motive for joinder is not to promote the underlying goals of efficiency, justice, and expeditious resolution of the disputes, but rather to use the pendency of this litigation to obtain unilateral discovery regarding non-parties and to push for quick (and potentially unjustified) settlements.

The judge was clearly not impressed with Plaintiff’s efforts in these cases and even stated Plaintiff was picking which “…procedural rules it likes and ignoring deadlines and discovery limitations.” (Page 9)

The judge also made mention of the fact that Identification of the ISP subscriber from the public IP address was unlikely to meet the requirements of FRCP 11, and that Plaintiff knows this.  This lack of factual support could lead to sanction against Plaintiff and their attorney.

It is not clear that plaintiff could, consistent with its obligations under Fed. R. Civ. P. 11, make factual contentions regarding an internet subscriber’s infringing activities based solely on the fact that he or she pays the internet bill. Plaintiff seems to be aware of this problem and has refrained from identifying the Doe defendants more specifically even after it learns the name of the subscriber. Plaintiff does not, however, take the appropriate steps of returning to the Court to seek an extension of time in which to serve and permission to conduct additional discovery. Rather, plaintiff demands that the subscriber prove he or she did not download “Adventures in Zambezia.” Therein lies the rub. Plaintiff has effectively obtained access to unrepresented individuals and parleyed that access into open-ended and unlimited discovery, despite the very narrow discovery order entered by the Court.

Even with his concerns, the Judge lifted the stay on the subpoena and informed Plaintiff they have 60 days to “complete discovery and affect service.”  The 60 day time frame will end at the close of business on 6 Oct 13.  I expect Troll Richard Symmes to milk the settlements up until 6 Oct13, and then dismiss all the Does that they can.

Failure to file proof of service on or before the sixtieth day will result in the dismissal of plaintiff’s claims as to each unserved defendant. The Court takes under advisement issues regarding ownership of the copyright and/or plaintiff’s failure to provide complete information regarding communications with subscribers and the ownership of Zambezia Film (Pty.) Ltd.

One problem Plaintiff will have (at least in this case); a defendant has filed an answer to the complaint and made counterclaims.  It is one thing for a judge to see that you had no intention of actually litigating your cases – but it is something else to not be able to close out a “dog” case(s)  in front of that same judge.    Answer_CClaim_00318(WA)   On 9 May 13, Susan Vandee, represented by John E. Whitaker, filed the first amended answer and counterclaim against Plaintiff.  Mrs. Vandee denies the allegation of copyright infringement or even having knowledge of the movie.  As of this article, I did not see Plaintiff’s answer to the counterclaims.

Mrs. Vandee makes the following affirmative defenses (Page 10-11) –

  • Lack of Standing
  • No Infringement
  • Abuse of Process
  • Misuse of Copyright
  • Estoppel and Unclean Hands
  • Implied License
  • Inadequacy of Copyright Assignment

We have a little less than a month to go, so I expect the Does out there are being contacted and threatened (My opinion) with damages of $150K+ unless they settle.  If Plaintiff/Troll Symmes does not actually try to litigate some portion of these cases, Judge Lasnik is likely to kill (or at least severally hamper) any/all future copyright infringement cases that appear only to be filed as a settlement generating effort.  Note: the Washington District courts (East & West) have not seen any new BT copyright infringement cases filed since the March/April 2013 time frame.  I think based off this order, the Copyright Trolls/Plaintiffs in Washington State jurisdictions have become “Persona Non Grata.

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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6 Responses to 13 ZAMBEZIA FILM Cases (WDWA) Have 60 Days To Complete Discovery & Serve Defendants – 2:13-cv-00318

  1. Mike Matesky says:

    In response to orders giving a deadline for service, Attorney Symmes has actually filed notices of voluntary dismissal in many (maybe most) of the cases he has filed in the W.D. Wash. He may do the same in the Zembezia cases, although the filing of an answer complicates matters.

  2. TC says:

    I’m seeing on John E. Whitakers page that it has indeed been voluntarily dismissed, except those cases with answers filed.

    http://copyright.infringementadvisor.com/p/seattle-copyright-cases.html

  3. whitakerlaw says:

    Indeed, all the Zambezia cases have been voluntarily dismissed without prejudice in all those cases except the ones with answers. Of course, that’s because Plaintiff cannot dismiss the cases that have answers, at least not without my clients’ approval.

    And thanks for the plug!

    • DieTrollDie says:

      The judge is sure to note this fact and will likely not look kindly when Plaintiff does not move forward with discovery. As most of these plaintiffs don’t like to pay for a Does attorney fees, they tend to drag it out hoping to force a “walk away” deal – each side pays its own fees. Agreeing to pay attorneys fees would be the easiest way to close these last cases out, but it also sends a message to the Does that fighting back can work. Catch-22.

      DTD 🙂

  4. Adam says:

    Hi Guys,
    There is a case going forward in the northern district of Illinois, and I don’t know what the next step is about and what to expect.
    This is for ‘Zambezia Film Pty Ltd. v. Does 1-56, Case No. 1:13-cv-01724

    The following link has all the info:
    https://www.docketalarm.com/cases/Illinois_Northern_District_Court/1–13-cv-01724/Zambezia_Film_Pty_Ltd._v._Does_1-56/

    Any input, no doubt would be greatly appreciated.
    Thanks,

    Filing Date # Docket Text
    10/10/2013 22 ORDER:Status hearing and ruling on motion hearing held. Plaintiff’s motion to file an amended complaint or to serve anonymous summons is granted 19 . The clerk shall issue anonymous summons to the John Doe defendants. Status hearing set for 12/10/13 at 9:30 a.m. Signed by the Honorable John W. Darrah on 10/10/2013.(ym, ) (Entered: 10/10/2013)
    10/10/2013 21 ORDER: Defendant John Doe 45 has moved to quash or vacate the subpoena issued by Plaintiff to his Internet Service Provider (ISP) and also has moved to sever. For the reasons discussed below, the Motion 12 is denied. The Court’s March 28, 2013 Order, granting early discovery, however, is modified so that Plaintiff is entitled only to the Internet Protocol (IP) account holders’ names and mailing addresses of any of the Doe Defendants and shall dispose of, without using, any other identifying information, such as telephone numbers or email addresses, already received. Furthermore, Plaintiff shall not publish any of the Doe Defendants’ identities without leave of this Court; and the actual names of the Doe Defendants shall not be used in any amended complaint or pleadings filed with this Court.(For further detail see order.) Signed by the Honorable John W. Darrah on 10/10/2013.(ym, ) (Entered: 10/10/2013)
    10/8/2013 20 NOTICE of Motion by Matthew Lee Stone for presentment of motion to amend/correct 19 before Honorable John W. Darrah on 10/10/2013 at 09:30 AM. (Stone, Matthew) (Entered: 10/08/2013)
    10/2/2013 19 MOTION by Plaintiff Zambezia Film Pty Ltd. to amend/correct (Stone, Matthew) (Entered: 10/02/2013)
    7/21/2013 18 ORDER, Signed by the Honorable John W. Darrah on 7/21/2013. (ea, ) (Entered: 08/13/2013)
    7/21/2013 17 ORDER; The briefing schedule re: Defendant Doe 45’s motion to vacate, quash and serve 12 is amended as follows: Response by 7/23/13, Reply by 8/6/13, Status hearing set for 10/3/13 is re-set to 10/10/13 at 9:30 a.m. Enter Order. Signed by the Honorable John W. Darrah on 7/21/2013. Mailed notice. (ea, ) (Entered: 08/13/2013)
    8/6/2013 16 REPLY by John Doe 45 to response to motion 15 (Russell, Erin) (Entered: 08/06/2013)
    7/23/2013 15 RESPONSE by Zambezia Film Pty Ltd. to MOTION by Defendant John Doe 45 to vacate MOTION by Defendant John Doe 45 to quash MOTION by Defendant John Doe 45 to sever 12 (Stone, Matthew) (Entered: 07/23/2013)
    6/20/2013 14 MINUTE entry before Honorable John W. Darrah: Defendant Doe 45’s motion to vacate, quash and sever 12 is entered and briefed as follows: response by 7/19/13, reply by 8/2/13. Status hearing set for 8/21/13 is re-set to 10/3/13 at 9:30 a.m. No appearance is needed on 7/2/13. Mailed notice(maf) (Entered: 06/20/2013)
    6/19/2013 13 NOTICE of Motion by Erin Kathryn Russell for presentment of motion to vacate, motion to quash, motion to sever 12 before Honorable John W. Darrah on 7/2/2013 at 09:30 AM. (Russell, Erin) (Entered: 06/19/2013)
    6/19/2013 12 MOTION by Defendant John Doe 45 to vacate , MOTION by Defendant John Doe 45 to quash , MOTION by Defendant John Doe 45 to sever (Russell, Erin) (Entered: 06/19/2013)
    6/18/2013 11 ATTORNEY Appearance for Defendant John Doe 45 by Erin Kathryn Russell (Russell, Erin) (Entered: 06/18/2013)
    5/22/2013 10 MINUTE entry before Honorable John W. Darrah: Status hearing set for 5/30/13 is re-set to 8/21/13 at 9:30 a.m. Mailed notice(maf) (Entered: 05/22/2013)
    3/28/2013 9 MINUTE entry before Honorable John W. Darrah: Ruling on motion hearing held. Plaintiff’s motion for leave to take discovery prior to Rule 26(f) Conference 5 is granted. Status hearing set for 5/30/13 at 9:30 a.m. Electronic notices. (jmm-r, ) (Entered: 03/29/2013)
    3/25/2013 8 NOTICE of Motion by Matthew Lee Stone for presentment of motion for miscellaneous relief 5 before Honorable John W. Darrah on 3/28/2013 at 09:30 AM. (Stone, Matthew) (Entered: 03/25/2013)
    3/22/2013 7 Duplicate of docket entry number 6 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Stone, Matthew) (Docket text modified by Clerk’s Office.) Modified on 3/25/2013. (Entered: 03/22/2013)
    3/22/2013 6 MEMORANDUM by Zambezia Film Pty Ltd. in support of motion to take discovery 5 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Stone, Matthew) (Docket text modified by Clerk’s Office.) Modified on 3/25/2013. (Entered: 03/22/2013)
    3/22/2013 5 MOTION by Plaintiff Zambezia Film Pty Ltd.Leave to Take Discovery Prior to Rule 26(f) Conference (Stone, Matthew) (Entered: 03/22/2013)
    3/15/2013 4 MAILED Copyright report to Registrar, Washington DC. (kj, ) (Entered: 03/15/2013)
    3/14/2013 3 RECEIVED Copyright Request Letter from Counsel of Record.(kj, ) (Entered: 03/15/2013)
    3/6/2013 2 ATTORNEY Appearance for Plaintiff Zambezia Film Pty Ltd. by Matthew Lee Stone (Stone, Matthew) (Entered: 03/06/2013)
    3/6/2013 1 COMPLAINT filed by Zambezia Film Pty Ltd.; Jury Demand. Filing fee $ 350, receipt number 0752-8115045. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet)(Stone, Matthew) (Entered: 03/06/2013)

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