Case Update – Elf-Man LLC v. Defendant Lamberson – # 2:13-cv-00395 (WA)

19 Mar Update

I have a short update on the Elf-Man LLC v. Lamberson case.  On 7 Mar 14, Troll VanderMay replied to Defendant Lamberson’s response to her motion to add a ‘John Doe’ defendant to this case.   Doc_34_00395(WA)

…In the event that discovery indicates that some other party is the direct infringer and that Defendant is not liable as a contributory infringer, Plaintiff should be permitted to name such potentially liable person(s) in this action. Why Defendant would object to the naming of an additional Defendant that could result in a motion to dismiss him from this action is perplexing at best.

I love the use of ‘could’ in the last sentence.  How about you say this Troll VanderMay – “Defendant will be dismissed from this case if discovery indicates some other party is the direct infringer and Defendant is not a contributory infringer.”

On 17 Mar 14, Judge Thomas Rice ruled on 3 pending procedural motions (Two from Plaintiff & One from Defendant).   Order_Doc_35_00395(WA)

  1. Plaintiff’s “Motions in Response to Defendant’s First Amended Answer” (ECF No. 20) – DENIED
  2. Defendant’s Motion to Dismiss or for Leave to File Second Amended Answer (ECF No. 21) – DENIED in part/GRANTED in part
  3. Plaintiff’s Motion to Add Additional Defendant (ECF No. 28) – DENIED

The judge felt this case was best served by denying Plaintiff’s special motion to strike and allowing Defendant to file an amended answer.

Accordingly, the Court will deny Plaintiff’s special motion to strike and will grant Defendant’s motion for leave to file a Second Amended Answer. Defendant shall file his Second Amended Answer on or before March 24, 2014. In view of this resolution, the Court declines to address the remaining arguments raised in Plaintiff’s motion to dismiss (ECF No. 20). In the event that Plaintiff wishes to challenge any counterclaim or affirmative defense raised in Defendant’s Second Amended Answer, it may do so within the timeframe provided by Rule 12(b).

The motion to add the additional Phantom Doe Defendant was also denied, with leave to review at a later date if Defendant Lamberson is found not to be the infringer.

…but at this juncture Plaintiff’s proffered reason for adding a party is entirely speculative. In the event that discovery reveals that someone other than Defendant Lamberson copied Plaintiff’s movie, Plaintiff may move to add that person as a defendant at that time. Notwithstanding the deadline set forth in the Scheduling Order, the Court may add or drop a party “at any time, on just terms” under Rule 21. Fed. R. Civ. P. 21. Just terms for adding a new party would likely require the simultaneous dismissal of Plaintiff’s claims against Defendant Lamberson. {my emphasis]

So by Monday, 24 Mar 14, Defendant must file his Second Amended Answer (& assuming counterclaims).  Following that, Plaintiff will have 21 days to respond to the counterclaims or file some other motion to delay this case.  In the mean time, Plaintiff should be working to provide the various outstanding discovery items to the Defense.  I haven’t seen anything to say the depositions and forensic analysis took place, so I will assume they haven’t.

From what I can see, Judge Rice is not going to accept any obvious delays and gamesmanship from either side.  This puts Troll/Plaintiff in a difficult position, as going forward with discovery may produce evidence that does not support their allegations.  What to do, what to do.  😉

DieTrollDie 🙂

————————————————-

I have another update to the Elf-Man case against Mr. Lamberson, Case # 2:13-cv-00395.  Here are the previous posts on this case – DTD 1   DTD2.  There has been a decent amount of activity, so I will try to keep it short and to the point.

The motion to add an addition unknown Defendant (AKA: Phantom Doe) is an attempt to keep the case open in light of the possibility that the discovery (deposition and forensics) will come up with nothing.  This is a very “Prenda-like” tactic and a sign of weakness.  Unless they can show Mr. Lamberson committed the copyright infringement or at least took some action (knowingly) to allow another person to do it, Plaintiff will not be in a good position.  I will suggest reading this motion and then Defendant’s response (Doc #33) together.  Defendant’s attorney, J. Christopher Lynch does a good job of telling the court that adding the ‘unknown’ Doe would be a bad idea.  You can also see that Plaintiff is likely worried about attorneys’ fees following a summary judgement.

In other words, either Mr. Lamberson is liable, or he is not – and this will be decided in this severed case. If plaintiff has evidence that some other person has liability, then it can proceed and bring a new action against that person with a new statute of limitations clock. If plaintiff discovers that Mr. Lamberson somehow acted in concert with another person in a manner that violates the Copyright Act, then plaintiff could move to amend at the time that has been discovered, using real liability evidence as the basis for such a motion. This would allow Mr. Lamberson to confront that evidence in a substantive manner and not in a response to a generalized motion to add a fictitious party as is the case in the present Motion. But if plaintiff desires to “drop” Mr. Lamberson because in the end there is no evidence that he is liable under the Copyright Act, then Mr. Lamberson becomes a prevailing party who can request defense attorneys’ fees under Fogerty v. Fantasy, 510 U.S. 517 (1994), and he should be able to do that unfettered in his severed action.

“Adding” a fictitious party would prejudice Mr. Lamberson. If plaintiff discovers no evidence against Mr. Lamberson, and Mr. Lamberson prevails by summary judgment, then Mr. Lamberson would have to await conclusion of the entire matter in order to pursue costs and attorneys’ fees, or to await plaintiff’s appeal of his summary judgment.

The Troll response to Defendant’s first amended answer and counterclaims is long-winded and a bit of a pain to read.  I’m not a fan of Troll VanderMay’s writing style.  I will leave the assessment of Plaintiff response to others to comment on.  I think the various pending aspects of discovery are going to add weight to Defendant Lamberson’s claims.

The minutes from the telephonic discovery hearing are interesting.  There wasn’t a great amount of detail, but it appears (correct me if I’m wrong) that the judge approved and denied various Request For Productions (RFP) from Plaintiff.  As the 25 Feb 14, letter sent to the court by Attorney Jeffrey Smith (Defendant) is not available, I do not know the details of each RFP.  I don’t know if the deposition(s) and forensic examination of Lamberson’s system have happened, but his attorney did tell the court that Lamberson has made himself available to Plaintiff (See Doc #33).  The following part appears to be referencing Plaintiff’s BitTorrent technical monitoring apparatus – Darren Griffen, Crystal Bay Corp (CBC).

Maureen VanderMay addressed the Court as to the status of plaintiff’s responses to discovery. The Court and Ms. VanderMay discussed the status of the investigators as fact witnesses and Requests for Production 19-22.

Next is the Stipulated Protective Order that was signed by both parties and approved by the judge.  Nothing shocking here, as it allows both sides to mark certain items as confidential, while allowing the other party to dispute any claims of confidentiality.  I’m sure Troll VanderMay will try to mark as many items as possible as confidential.  Plaintiff does not want the details of their operation to be exposed to people such as myself.   😉    They know full well that such information will be exposed to the light of day and it will hinder their business model.  I hope that Troll VanderMay/Plaintiff understand that for each time Defendant has to respond to an over classification, the cost of Defendant’s attorney fees goes up.  Catch – 22

I expect that once Plaintiff produces the discovery items, there will be some discussions on how to settle this.  I hope a settlement does not happen, but you never know.  Much will depend on how deep the pockets of Plaintiff are, as well as if they want to bow out or fight a losing battle.  Common sense is something that is often in short supply.   More to come…

DieTrollDie 🙂   “This isn’t the state of California, it’s a state of insanity.” – General Joseph W. Stilwel {1941 – the movie}

WBKJ1

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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