Thank you Jack for bringing the fact that troll VanderMay filed a response to Defendant Lamberson’s Answer and Counterclaim. As Jack points out, it appears Troll Vandermay was in a bit of a shock and decided to file a response not even bothering to address the core issues to the answer/counterclaims. Please take a read and I will try to hit the main points. PlaintiffResp_Doc20_00395(WA)
Also of note is a very recent order in Elf-Man case # 2:13-cv-00115 (The case this one is based on), in which Judge Rice (Same Judge in both cases) dismissed the “Negligence” claim (Plaintiff tried to call it “Indirect Infringement“) against the remaining defendants, but kept “pending” the claims of direct and contributory copyright infringement. Order_Doc106_00115(WA) Reading this order I see the judge taking the safe road and not dismissing the weak claims based solely on who pays the ISP bills. As Plaintiff has already named the defendants, It had better be ready to move forward with discovery and adequately prove the named defendants are responsible. Failure to do this could result is FRCP Rule 11 sanctions.
The response is a combination response and motions – Strike Defendant’s State Law Counterclaims (Defamation, Washington Consumer Protection Act, & Intentional Interference with Business Relations). – Motion to Stay Discovery Pending Resolution of Plaintiff’s Special Motion to Strike and Request for Monetary Award – Motion to Dismiss Counterclaims – Motion to Dismiss Counterclaims and/or Strike Affirmative Defenses Based Upon Allegations of Fraud – Motion to Strike Pursuant to Fed. R. Civ. P. 12(f) the following redundant, immaterial, impertinent and/or scandalous matter in Defendant’s first amended answer and counterclaims. It is not a straight forward read and Troll VanderMay only lightly talks to the claim that Plaintiff seeded the movie on BitTorrent.
Attempt to Halt Discovery
What is of interest and only appears very slightly is the motion to stay discovery. Troll VanderMay is hoping she can stop Defendant Lamberson from discovery. I wonder what Plaintiff has to hide? If you remember Defendant Lamberson’s answer and counterclaim, many interesting items were brought up –
- Who actually owns the copyright to the movie Elf-Man – Vision Films Inc. OR Elf-Man LLC?
- What parts of the movie covered under the claimed copyright (PA 1-823-286 – There is a “Note” in the registration concerning preexisting material (film, music, & photographs).
- Plaintiff’s failure to take reasonable steps to protect its movie – This may have led to the Plaintiff’s movie being made available via BitTorrent. If the storage wasn’t hacked (or a physical theft), then somebody associated with Plaintiff likely did it.
- Who initially seeded the movie BEFORE it was ever released to the public – Defendant Lamberson believes it was seeded by Plaintiff or its agents.
- IPP Ltd/IPP International = Guardaley Ltd of Germany – Allegations of fraud and faulty monitoring software and methods against Guardaley. IPP is also not licensed in WA to conduct business. Plaintiff paid for “evidence” from IPP with settlements from the Does.
- Crystal Bay Corporation (CBC) – previously delinquent SD “shelf-corporation” used to hide the BT technical monitoring apparatus used by Plaintiff. CBC is also believed to be paid for its “evidence” by Plaintiff with settlement proceeds. CBC is also not licensed in WA to conduct business.
What does Troll VanderMay Respond to?
She basically claims that since Defendant Lamberson’s (Attorney Christopher Lynch) answer/counterclaim did not follow the rules, it should dismissed or in an alternative, require a refiling with additional details.
In answering Plaintiff’s First Amended Complaint, Fed. R. Civ. P. 8(b)(1) requires that Defendant “state in short and plain terms its defenses to each claim asserted against it; and . . . admit or deny the allegations asserted against it by an opposing party.” Rather than following this rule, Defendant has included in his answer a wide ranging narrative and numerous exhibits, much of which is simply irrelevant and other portions of which at best relate to matters that he may be entitled to present later in this action pursuant to the governing evidentiary and procedural rules. Therefore, Plaintiff has moved to strike, with a single exception, the material in Defendant’s answer which he “affirmatively states.”
So Troll VanderMay doesn’t want anyone to question their case or seek information on their operation. What do they fear??? Until the motion is decided, she asks that all discovery be placed on hold.
This motion speaks to me of some serious fear from Plaintiff. This is simply a delaying tactic that is designed to keep running up the legal bills of Defendant Lamberson. Run them up high enough and they may get Lamberson to accept a confidential deal.
Even if the judge asks the Defendant for a more detailed counterclaim, it will not be hard to produce. The issue of who actually owns the copyright to the movie, as well as what preexisting material is NOT part of the copyright will be easy. Plaintiff’s control of the movie (or lack of it) prior to public release and who had access to it (correlated to the date it was “seeded” and release to the public) will be easy to justify. Interviews of Plaintiff’s personnel who had access to the movie (during seeding/pre-public release) is easily justified. IPP/CBC details/agreements with Plaintiff on providing evidence to Plaintiff for a price will not be that hard either. The best I can see Troll VanderMay doing to trying to claim all of this information is privileged and not subject to public disclosure.
If Defendant Lamberson has the stamina to go the distance, this could be bad for Plaintiff.