Waiver Of Service & Judge Kills TCYK, LLC, case 1:13-cv-03840 (ILND) – “Too Little, Too Late”

I decided to revisit this topic after Doe defender Jeffrey Antonelli, Antonelli Law, made the following Twitter comment, “Anyone receiving a Waiver of Service should speak with a lawyer first before they sign it. We are seeing too many defaults from this!”  Antonellie further said Trolls Michael Hierl and Keith Vogt have been using them.  The first part of the article explains a Waiver of Service (WOS) and the second part details how one Troll had an ILND judge kill his case.

If you are unfamiliar with a “Waiver of Service (WOS),” please see the following articles .   DTD1   DTD2

DSF1Now there is nothing wrong with a WOS, it is just how the Trolls are using them.  For majority of the Does, the legal process is strange and often expensive.  I feel that some of the Does are not going to understand the WOS and possibly make a big mistake.

What is the difference between a Waiver of Service (WOS) & a Summons/Complaint?

Waiver of Service – A WOS is simply an agreement to “waive” the requirement to be officially served with a summons/complaint.   Cornell Law (see section (d) )   By waiving the official requirement, the defendant is allowed more time to respond to the complaint (60 days) and the Plaintiff saves money by not having to hire a process-server.  Now a WOS is “Voluntary,” meaning a Defendant does not have to accept/sign it if they don’t want to.  If a WOS is not signed and returned, Plaintiff will have to have the Defendant officially served.  Once a case is decided, the court is required to award the fees/costs associated with the service to the Plaintiff.  Note: The WOS is going to have the true name of the Defendant and not the John Doe #/IP address – so this document will only be seen after the ISP releases the subscriber information to the Troll.  Now when a defendant signs/returns a WOS, he/she has effectively been served with a summons and needs to respond to the complaint.  If no response is made within the 60 day time frame, the Plaintiff can motion the court for a default judgement.

Summons/Complaint – A Summons/Complaint is a document prepared by the court and tells the recipient they are Defendant in a law suit, which court/jurisdiction it is filed in, whom the Plaintiff is, and how long they have to respond to the complaint – usually 21 days.  The summons/complaint will have the true name of the Defendant and not the Doe #/IP address.  Plaintiff is responsible for seeking the summons/complaint, as well as serving it on the defendant in accordance with FRCP 4.  Each jurisdiction can have local rules for effecting service, but generally they need to personally provide it to the defendant, leave a copy with an adult at the residence, or with an agent authorized to accept service.  Failure to answer a summons/complaint will allow the Plaintiff to motion the court for a default judgement.

120 Day Time-Frame To Serve

Now the Rule that covers “Summons” and WOS, also covers the time frame to Plaintiff has to effect service.  According to FRCP 4(m), Plaintiff has 120 days after filing the complaint to effect service.  For theses cases, the ISP subscriber information is not available until sometime later, so this is pushed back.  BUT once they have your identification, the clock is effectively ticking.  Once the 120 days has passed, a motion can be made to the court (or the court can do it on its own) to dismiss the case without prejudice.  The service time can be extended if Plaintiff shows “good cause” as to the delay.

ILND Judge Kills TCYK LLC Case 1:13-cv-03840

This TCYK LLC case was originally filed in the ILND on 23 May 13, against 113 John Does.   Archive Docket   The case ran the usual course of early discover, motions to quash/dismiss, release of ISP subscriber information, settlement negotiations, and voluntary dismissals.

On 22 Jan 14, it appears Judge Elaine E. Bucklo had enough of Plaintiff and made the following minute entry.

MINUTE entry before the Honorable Elaine E. Bucklo: Status hearing held on 1/22/2014. Plaintiff’s motion to dismiss “Doe Defendants” with certain Internet Protocol addresses is granted. Upon reflection, this court’s oral decision to set this case for trial is vacated. After nearly a year, plaintiff has neither served various defendants, nor substituted actual names of people for “Doe.” Plaintiff is given until January 30, 2014 to file proof of service on all defendants. After that, any defendant not served will be dismissed per Fed. R. Civ. P. 4. The case is set for hearing on February 4, 2014 at 9:30 AM. Doe Defendants 7,14,46,49,59,61 and 102 are dismissed with prejudice. Mailed notice (jdh)

Doesn’t sound good for Plaintiff.  So on 28 Jan 14 (two days before the cut-off), Troll Hierl informs the court they have met the courts requirement (“Plaintiff is given until January 30, 2014 to file proof of service on all defendants“) because they sent the remaining 62 defendants a WOS/Complaint.   StatusRep_03840(IL)

Well, Judge Bucklo wasn’t buying this “Too Little, Too Late” bit of gamesmanship, and issued the following on 29 Jan 14.   CaseDismissed_03840(IL)

MINUTE entry before the Honorable Elaine E. Bucklo: This case was filed on 5/23/2013. I allowed discovery and gave plaintiff until 8/2/2013 to amend its complaint to name the actual defendants. I extended that time until 10/10/2013. Plaintiff never amended its complaint. It turns out that plaintiff never served most of the defendants. In response to my notice that I would dismiss this case under Fed. R. Civ. P. 4, unless plaintiff promptly filed its proof of service, plaintiff says that it will ask for a waiver of service from the defendants. This is not good enough. Plaintiff has flagrantly violated Fed. R. Civ. P. 4. This case is dismissed. Civil case terminated. Mailed notice (jdh) 

CS1This is the essentially a Bench Bitch-Slap for Troll Hierl and TCYK.  “Flagrantly violated Fed. R. Civ. P. 4.”  Way to go Troll Hierl and Parkhurst.  Now hopefully more of the ILND judges will take notice.  To me this clearly indicates these Copyright Trolls are not trying to find out who the true infringers are and are only interested in squeezing out settlements from the ISP subscribers under threat of a law suit.

So it looks like 72 Does (out of 113) were dismissed from the case (correct me if I’m wrong).  Let do some Copyright Troll math – If Plaintiff/Troll was able to get $7,500 settlements (TCYK_7.5K_SetteLtr) from the 41 previously dismissed Does, they would have taken in $307,500.  Even if they only got $3,750 per settlement, that is still over $150,000!  You can see why even with a Bench Bitch-Slap like this, there is money to be made.

Now Plaintiff can still refile a new case(s) against the Does – mass or single, but that would be a foolish waste of time and money.  Without filing named defendants cases against the 62 defendants (which they have names for), they would simply be showing how weak their case is.  Also naming a defendant simply because they are the ISP subscriber is bound to lead to motions for sanctions against Plaintiff for violation of Fed. R. Civ. P. 11 (See section (b) ).

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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5 Responses to Waiver Of Service & Judge Kills TCYK, LLC, case 1:13-cv-03840 (ILND) – “Too Little, Too Late”

  1. that anonymous coward says:

    One does wonder how many cases are well past the 120 day mark, and why extensions are granted over and over.
    Keeping Does dangling in legal limbo, in some cases closer to if not over a year, is unacceptable.
    Does wait for the other shoe to drop and to be named, in some courts, only then can they file motions to defend against allegations that do not pass the smell test.
    In the mean time they are barraged via email, postal mail, telephone and any other avenue the troll can dream up to pressure them into settling to protect their good name. Outright lies about being liable for open wifi are told in these letters, but so very rarely are these officers of the court called to answer for these false statements not supported in the law.
    In the past I’ve used much more ‘colorful’ language to describe the 120 days, and one does wish that more Judges would adopt my motto of ‘File or F-Off’.
    Give the sheer numbers of people who are having their lived turned upside down, perhaps it is time for more courts to question what is really happening in these cases, and force the trolls to keep up with the massive amounts of IP addresses they are filing against. If every Doe targeted demanded trial, there are not enough court dates or trolls to allow everyone a day in court.

    • DieTrollDie says:

      I have it on good authority that the judge in this case is extremely nice and easy to work with. It looks like they kept feeding her a line and pushing to see how far they could get. It really shows how insulting these Trolls are – not just to the Does, but to the legal system and the judges. They probably could have gotten away with less long-term trouble by simply dismissing the remaining Does. Greed stopped them from reaching this simple logical conclusion and they sent out the WOS. Sometimes it seems that the Trolls are their own worst enemy. 🙂 I like you motto – File or F-Off!

      DTD 🙂

  2. DieTrollDie says:

    Note: Last night (just prior to publication), I had a Doe in a TCYK case (not sure which one) comment –

    “I was just served the newest TCYC judgment. I have 60 days to return the Waiver of Service of Summons. I am not at all versed in the lawyer terms and lingo, if there is anyone out there that could help I would be forever greatful.”

    First off, if this is part of “this” case, I would ignore the WOS – The Case Is Dismissed. Done. If it is for another TCYK case, I would consult with a lawyer who knows and works these types of cases/Trolls.

    This is NOT a summons. This is simply the Troll trying to make it easier for him to obtain a default judgement if you will not settle (My Opinion). Don’t make it easy for the Troll.

    Signing the WOS IS just as serious as getting a summons/complaint served on you. I said “SIGNING” the WOS – Not getting one in the mail. Once you sign the WOS, you have 60 days to respond/answer the complaint. If you DO NOT sign the WOS, you are under NO time obligation to do anything.

    I’m sorry to equate this to a game, but in its simplest form it is one. The Troll knows the rules of the game and has home field advantage. You need to understand the rules and play hard. The advantage the Does generally have against the Trolls is that they really do not want to go to the discovery phase, much less a full trial. Look at the record for this TCYK case – this is so clear.

    DTD 🙂

  3. Pingback: Dallas Buyers Club LLC Settlement Letters & Waiver of Service (4:14-cv-00248(TX) & 2:14-cv-00384(OH)) | DieTrollDie

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