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.
Now 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)
This 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) ).