Prenda/Goodhue Motion To Strike/Reply (AKA: I See Ghosts) – AF Holdings, 2:12-cv-02144 (AZ) – HARRIS

4 Oct 13 Update

On 3 Oct 13, Paul Ticen (non-party Attorney) filed a response to the previous Prenda/Goodhue motion (see below).   Ticen_Resp_Doc98_02144(AZ)   The response requests the court deny Plaintiff’s motion to strike OR sur-reply because of Plaintiff’s baseless claim that the non-parties have raised new evidence and arguments.  Ticen refutes these claims and shows that the matters at hand are not new.  This part of the response cuts to the heart of the matter.

The Non-Parties moved for attorneys’ fees because Plaintiff’s subpoena was issued in bad faith. The Non-Parties argument merely countered Plaintiff’s absurd position that the Non-Parties and others identified in the subpoena at issue were part of Mr. Harris’ swarm in June 2011.

I expect the judge to grant the motion for attorney fees, as well as making John Steele, Paul Hansmeier and Paul Duffy jointly and severally liable.

What interests me is what Mr. Harris may do.  After the recent hearing fiasco in MN, as well as the default judgement against them, Mr. Harris may want to consider a request for summary judgement.  I cannot see Prenda actually moving forward with any discovery, as this costs time, money, and will open up an even bigger can of worms for them.  If Mr. Harris (Pro Se) make such a motion, he will not be able to get attorney fees, but it will set another judgement against them.  Each such judgement/finding is another nail in the coffin for the Prenda clan.  Mr. Harris, might I suggest your hire some attorney to make the motion???  Anyone have some ideas on this?

DieTrollDie 🙂

———————————————————————————–

On 16 Sep 13, Prenda/Goodhue filed a motion asking the court for approval to file a motion to strike, or in the alternative, a reply (sur-reply) to attorney Paul Ticen’s motion for attorney fees (ECF # 88).  Please also see Mr. Harris’ reply to Plaintiff Harris_Reply_Doc95_02144(AZ).     Archive Docket

Prenda_SurR_Doc97_02144(AZ)

GW1This motion has the smell of the main Prenda crew, possibly Duffy, but of course only bears the e-signature of Steven Goodhue.  Prenda/Goodhue asks the court to strike Ticen’s motion for attorney fees for the six Cox Communication subscribers who fought to prevent the release of the ISP subscriber information.  Prenda/Goodhue claims the reason to strike is because it introduces new evidence, new arguments, and new requests for relief that contravenes the Local Rules and Ninth Circuit precedent.  If the court decides not to strike the motion, he asked the court for permission to reply to Ticen’s motion.

In his draft sur-reply, Prenda/Goodhue claims the six “non-party” Cox Communication are not entitled to attorney fees because.

They did not suffer any undue burden in responding to the ISP subpoena.  He states that only the ISP could make this claim, as they are party to the subpoena.  Same tired old Prenda claimPrenda’s history has shown that once the ISP subscriber information is released, the “non-party” personnel become party to the case via the settlement demands Prenda makes via a threat of Federal litigation.   Prenda/Lutz Voicemail.

Prenda/Goodhue goes on to claim that because Ticen did not attack the relevance of the information sought (ISP subscriber information) by Plaintiff, the motion should be denied.

This alone is a sufficient ground for dismissing Movant’s motion. Information sought in a subpoena need only be relevant to at least one claim — not all of them.

Further, Plaintiff never claimed that all of the IP addresses sought in its subpoena were in the swarm on June 2011. As Plaintiff noted in its response to Movant’s motion for attorneys’ fees, a given IP address/date combination is required to discover identifying information from an ISP. Yet,there is nothing about subpoenaing identifying information that cuts off an individual’s participation in a swarm. Plaintiff believes that substantially all of the individuals it identifies as participating in a swarm continue to participate in the swarm long after the date/time of Plaintiff’s first identification of their swarm participation — just as Plaintiff believes both Defendant Harris and Movant did here.

I would assume the information sought in a subpoena needs to be relevant to all the parties/ISP subscribers???  If it isn’t relevant, then the subpoena is defective and should be denied.   Hey Prenda – If you want the court to grant a subpoena, you just need to show how the 71 Cox communication customers were tied to Mr. Harris’ public IP address – not just some flimsy claim – back it up stupid!

The final laughable bit in this motion is Prenda/Goodhue claiming that Ticen’s “fixation” on Paul Duffy, Paul Hansmeier, and John Steele is “frankly bizarre.”  He goes on to state that Mark Lutz’s (Plaintiff’s Principle) testimony at the 19 Jul 13, show cause hearing, was consistent with other district court testimony, as well as the deposition referenced by movant.  The really funny bit is this –

While the Honorable Judge Wright arrived at different findings of fact, Mr. Lutz was never allowed to testify at the show cause hearing that AF Holdings was subject to.  Had Judge Wright allowed Mr. Lutz to testify, he may have arrived at different conclusions.

Deciding to take the fifth does not mean Lutz * ** (or other Prenda fools) were “never allowed” to testify.  Prenda/Goodhue does somehow omit the fact that two CA courts have determined that the Three Amigos (Duffy, Hansmeier, & Steele) are the “alter-egos” of AF Holdings/Ingenuity 13.  Also lets not forget the audio recording of John Steele claiming to be Alan Cooper when dealing with the GoDaddy customer support.  * Correction: Lutz did not get a chance to take the fifth – Judge Wright ended the proceedings after the main Prenda players took the fifth.  Not that I think he would have testified – clumsy fool did such a great job at the 27 Nov 11, Motion Hearing, SUNLUST PICTURES, LLC., v. NGUYEN, 8:12-CV-01685.  ** Note: Please see the First Amended Counterclaim for case # 1:13-cv-01569, ILND, Page 6, for what Erin Russel/Jason Sweet thinks of this aspect.

Goodhue does tell the court that if requested, he will provide (under seal) Plaintiff’s trust documents (Saltmarsh trust).  I really don’t think Goodhue wrote that bit and certainly don’t believe he has actually seen the Saltmarsh trust documents.  Careful Goodhue – if someone is ghost writing for you, it could come back to bite you.  Under seal???  Unless there is something on the document that contradicts previous testimony, you (Prenda) have already stated who makes up the trust.

The last part is of the motion simply states that a second evidentiary hearing on the ownership is not required as Lutz answered all the questions on 19 Jul 13.  IMO, Lutz’s ability to truthfully answer questions is equivalent to his ability to board a plane from Miami, FL, to San Francisco, CA, to provide testimony – It isn’t going to happen.  I suspect Judge Snow will allow the sur-reply; but it isn’t going to do anything to help Prenda.  In fact, it will probably hurt them.  IMO none of them have the smarts to shut up, pay the sanctions/fees, and try to sink away.  You can’t make this stuff up.

DieTrollDie 🙂

KCDTDO1

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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16 Responses to Prenda/Goodhue Motion To Strike/Reply (AKA: I See Ghosts) – AF Holdings, 2:12-cv-02144 (AZ) – HARRIS

  1. Raul says:

    In a related matter it looks like Ticen got awarded attorneys fees and costs in the LMC v. Sekora matter in Maricopa County.

  2. rsteinmetz70112 says:

    IIRC Judge Right asked if the Prensa Attorney was going to present evidence at an evidentiary hearing. They replied that were going to present argument. He then told them they could file papers or rather that he couldn’t stop them from filing papers. If the attorney had said they wanted to call witnesses I’m sure Judge Wright would have allowed that.

  3. Jim Tyre says:

    DTD,

    Lutz did not take the 5th at the Judge Wright hearing. (I was there.) After all the Prenda lawyers (except Gibbs) did, Judge Wright got a bit frustrated, neglected to get the position of Lutz and Van Den Hemel(?).

    Just a correction, not a criticism.

    • DieTrollDie says:

      OK, I stand corrected. No problem, please correct and/or criticize as needed here. I will concede that that Lutz and Van Den Hemel did not get the opportunity to testify. BUT, if they truly wanted to do something after Judge Wright ended the proceeding, they could have. I don’t believe either of them sent a declaration or made a motion to present testimony to the court. Lutz is the pawn of Duffy/Steele/Hansmeier in my opinion and simply followed their actions. He and the other Prenda fools hold the keys to their operations and will not disclose the details for fear of civil and criminal actions against them.

      DTD 🙂

    • DieTrollDie says:

      ** Note: Please see the First Amended Counterclaim for case # 1:13-cv-01569, ILND, Page 6, for what Erin Russel/Jason Sweet thinks of this aspect. Links provided in the body of this post.

      DTD 🙂

      • Jim Tyre says:

        DTD,

        Yep, I see that. The Amended Counterclaim does say that Lutz invoked. But while a have a great deal of respect for both Erin and Jason (and know Jason personally), they made a mistake. (It happens, on occasion, even to the good ones.)

        They cite to Exhibit B, ECF 16-2. That’s Judge Wright’s sanctions Order. Judge Wright does not state in that Order that Lutz invoked. The relevant language from the Order is this:

        “A. Findings of fact
        Based on the evidence presented on the papers and through sworn testimony,
        the Court finds the following facts, including those based on adverse inferences drawn
        from Steele, Hansmeier, Duffy, and Van Den Hemel’s blanket refusal to testify.”

      • DieTrollDie says:

        No problem. I didn’t discount what you were saying, just wanted to show what is out there. Mistakes are made at times. It will be interesting if anything is said about it by Duffy/Prenda. You have to wonder if the Prenda clan is finally figuring out they need to stop opening their mouth and inserting their foot.

        DTD 🙂

    • SJD says:

      Jim, while there is nothing in the Wright’s orders, I do remember that not bloggers/commenters, but someone like Rosing or one of the Prendatists, explicitly said that if Lutz or Hansmeier were called to testify, those guys would also invoke the 5th. There is a chance that my memory betrays me, and I don’t have time to research…

  4. SJD says:

    Had Judge Wright allowed Mr. Lutz to testify, he may have arrived at different conclusions.

    Hey, dirtbags, I know you read this. So, a friendly advice:

    Careful what you wi

  5. DonaldB says:

    Ah, so they are hanging their hat on Judge Wright not explicitly putting everyone on the stand and having them each invoking the fifth.

    Heather Rosing’s statement indicated that the whole gang would be taking the fifth. While she didn’t specifically represent Lutz, the group had been acting in concert. The transcript makes it clear that the Judge was relying on her representation to the court rather than putting each individual on the stand and having them explicitly state that they decline to answer questions as consistent with their right to not be compelled to provide testimony that might incriminate them as detailed in the fifth amendment of the United States Constitution etc.

    If that representation didn’t include Lutz, he had the opportunity to separate himself from the group at the hearing.

    That the way the system works. There isn’t time to authenticate each document, investigate each statement, or swear to each statement individually. Similarly, a Judge isn’t going to go down the line and have each person at a hearing repeat what a lawyer just told him.

    Lutz only has a claim to bad legal representation, not a claim that he didn’t have an opportunity to be heard.

  6. Jim Tyre says:

    I made a partial misstatement above. I want to clarify that and address part of DonaldB’s comment. (I’ve gone back and checked the transcript of the hearing to be sure.)

    Rosing and her colleagues represented Prenda, Duffy and Van Den Hemel. That makes sense because, as we later learned, they were hired by Prenda’s malpractice carrier, and Van Den Hemel was a Prenda paralegal.

    Steele was represented, but by different lawyers.

    Paul H also was represented, by still different lawyers.

    Neither Lutz nor Peter H were represented by any lawyers.

    When Rosing invoked the 5A, she made it clear on whose behalf she was invoking it – only her clients. Ditto Steele’s lawyer, and ditto Paul H’s lawyer. (Gibbs also had counsel, but he did not invoke. At the prior hearing, he testified.) No lawyer invoked on behalf of Lutz or Peter H and none could have, since none represented either.

    After Rosing and Wright “discussed” at some length whether Rosing could submit briefing after her clients had invoked (and other matters), Wright simply terminated the hearing rather suddenly. He was aware that Lutz and Peter H were present, both acknowledged their respective presences at the beginning.. But, other than acknowledging their presences at the beginning, Wright never said a word to either, never asked if either would invoke the 5A.

    Anyone who knows me knows I’m not defending these guys, but lets make comments based on facts.

    • Anonymous says:

      And Lutz was/is also a Prenda paralegal. Therefore, the attorney representing Prenda invoked the 5th on his behalf as an employee.. Lutz could not have appeared on behalf of AF Holdings or Ingenuity, because a corporation cannot appear except through counsel. Besides, at the time, Gibbs had not yet been relieved as counsel for AF/Ingenuity, so Gibbs was still counsel for them

  7. DonaldB says:

    That’s what I meant by “a claim to bad legal representation” — Lutz was there representing himself. And presumably representing AF Holdings and AF Films.

    A good attorney would have realized the implications of what was going on, and objected that their client wasn’t part of the group and hadn’t been heard. Certainly Rosing would have, if she represented him.

    By remaining silent, he acknowledge that he was part of the group taking the fifth. Remaining silent was his right. You might say he actively asserted that right. He was at a hearing where he was ordered to appear and be heard. He was given the opportunity to correct any adverse inference. He did not.

    (Actually he probably got good legal advice: saying anything would allow him to be cross examined. He would have been on the stand for hours, trying to plug the cracks.)

  8. Anon E. Mous says:

    Once again Mr Harrison is taking it to the Prenda gang. While I suspect Goodhue didn’t author this, I would suffice to say this looks like Steele’s handiwork. The mere fact that the Prenda gang is sticking to the play book of filing to delay or the old standby of denying this to avoid getting dinged further penalties and adding to the sanction list.

    I love the effort they put in regarding the swarm and how they are now saying it should absolve them from any penalties ( er, wasn’t there whole case based on the premise that these folks in the swarm were all sharing this film? …talk about contradicting your own theory! ) I guess when you don’t have fact you make up what you can and hope it sticks.

    There is no way in hell Lutz will be testifying to anything, we all know this after the Sunlust fiasco. Lutz track record of showing up to testify is also flimsy at best since he was supposed to be in two courts different jurisdictions and didn’t show, so I doubt he would this time as well. ( may as well go for the hat trick right John? )

    The mere fact that Prenda asks to deny this is comdey at it’s best, while I would love to see Judge Snow hammer Prenda for the going’s on in this case, I suspect he wopn’t do much as he had the opportunity to do so once before and he let Prenda and Goodhue off the hook so to speak.

    While I am suprised that Prenda hasn’t tried to settle this one out and get out from underneath the hammer, I suspect that they won’t pony up any coin to do it. I believe they are rolling the dice and hoping that Judge Snow will grow weary of this case and dismiss it, which I hope does not occur.

    Mr. Harris has done a fantastic job of being a thorn in Prenda’s side and I commend him for it, he has come along way since this started and I am sure John regets having to have sued old Mr.Harris as I ma sure he didn’t think he would get this much grief from one guy.

    It will be interesting to see what Judge Snow does with the case further, we will have to wait and see. I sure would like it if he made it so Lutz would have to appear in person and under oath to answer up some of the questions that Judge Snow had.

    I have to wonder how many more of these “under seal” motions Prenda is going to file in it’s various cases around the country, it seems to be the trendy thing to do for them to avoid all the scrutiny and laughs they are getting from various litigants, lawyers and the media…guess time will tell

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