Update – “Buyer’s Remorse?” – TCYK LLC Case 2:13-cv-01020 (IAND)

Here is a short update on this rather active TCYK, LLC, case.  On 26 Mar 14, Pro Se Defendant Phillip Reinert filed his answer to Plaintiff’s Amended Complaint.   Doc35_Answer_01020(IA)   Mr. Reinert denies the allegation and requests a jury trial.

So now we have Three Pro Se defendants in this case (Doonan, Davidson, & Reinert).  Note: Troll/Plaintiff made a motion to dismiss Mrs. Doonan, but the court has not issued an order on it – the docket still show Mrs. Doonan as an active Defendant.

The clock is ticking Troll Hamilton.  What are you going to do???  How much will depositions and forensics cost you?  Much more than the $1,500 you were seeking.  The court will soon tell you to “Put up OR Shut up.”

DTD 🙂

———————————————————

You will hear me from time to time mention that the actions (or in-actions) of a Troll/Plaintiff can be a good indicator of their intentions and plans.

It has come to my attention that a recent Troll filed Motion to Dismiss in case TCYK, LLC v. Rexin, et al, 2:13-cv-01020, may had something a little more to it than what appears.   Doc33_VolDismiss_01020(IA)

In this motion, Troll Hamilton, requests the court to dismiss three of the Defendants (Fox, Doonan, & Jennings) With Prejudice. When I saw ‘With Prejudice,’ I assumed the three defendants came to some sort or arraignment with Plaintiff. Historically we see a ‘With Prejudice’ dismissal for agreements/settlements and ‘Without Prejudice’ dismissal when a Plaintiff decides to dismiss a Defendant (as it is in their best interest) without obtaining a settlement/agreement.

The interesting bit in all this is on 26 Feb 14, Mrs. Doonan filed an answer to Plaintiff’s complaint that was served on her.   Doc29_Answer_01020(IA)   The local Sheriff’s Office has the record of the service performed at the request of Troll Hamilton.  Note: Plaintiff has not filed the proof of service for Mrs. Doonan.  Now notice the time frame between Mrs. Doonan’s answer and the motion to dismiss – 8 days.  It is a bit shocking to see a Troll/Plaintiff move so fast.  Now if there had been some sort of agreement between Plaintiff and Doonan, I would expect to see a joint statement seeking dismissal based on this – we haven’t.  A possible reason for the rapid dismissal can be found in FRCP 11(c)(2).

(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion. {My emphasis}

So the rapid dismissal (less than 21 days after the answer) may be an attempt to avoid possible FRCP 11(b) sanctions.  Rule 11(b) requires a party to certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

RemorseTrollThe biggest problem the Trolls have with Rule 11(b) is at 11(b)(3).  This part requires that they certify that after they conduct a reasonable inquiry, they have evidence to support naming a defendant OR that a subsequent investigation will likely produce evidence to support naming/serving the Defendant.

For a majority of these cases, I don’t believe the Trolls do any type of inquiry/investigation beyond collecting the public IP addresses from BitTorrent and seeking early discovery of the ISP subscriber records.  This in no way justifies naming/serving the ISP subscriber as the infringer/Defendant.  It is ONLY a starting point for the investigation into who the infringer is.  To name/serve a defendant only because he/she pays the ISP bill is reckless.

Troll/Plaintiffs will say that conducting an investigation is expensive, time-consuming, and does not serve justice efficiently.  The cost and time required to run an adequate investigation can be significant, but it does serve justice in protecting the innocent.  The costs to the Plaintiff should in no way be used to justify the circumvention of the rules.  Rule 11 was written so to ensure that legal pleading are based on facts and not simply used as a tool to bully and extort settlements from people (my opinion).

Here is a recent court order in a Malibu Media case (reported by Sophisticated Jane Doe) that shows the ISP records alone are insufficient to identify the Defendant.  OrderDismissed_20213(FL)

Plaintiff has shown that the geolocation software can provide a location for an infringing IP address; however, Plaintiff has not shown how this geolocation software can establish the identity of the Defendant. There is nothing that links the IP address location to the identity of the person actually downloading and viewing Plaintiff’s videos, and establishing whether that person lives in this district.

So what does this rapid motion to dismiss by Troll Hamilton show???  I believe somebody bought a lemon of a case and now has buyer’s remorse.  Simply naming the ISP subscriber as a Defendant is a foolhardy move that will eventually backfire.  Be careful Troll Hamilton, sanctions can be a bitter thing to swallow.

If the dismissal of Doonan is an attempt to avoid possible Rule 11 sanctions, then Troll/Plaintiff still has to deal with the Answer filed by Defendant Davidson on 26 Feb 14.   Doc30_Answer_01020(IA)   As of 24 Mar 14, 26 Days have passed since that answer was filed.  The last action on the docket is by Troll Hamilton – a 19 Mar 14, Motion to Dismiss Defendant Mary Elder (Without Prejudice).   Doc34_VolDismiss_01020(IA)

DieTrollDie 🙂      “Who’s the more foolish, the fool or the fool who follows him?” – {Obi-Wan, Star Wars}

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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