Well it was certainly something I didn’t want to see, but the judge in this case decided to allow Troll/Plaintiff to dismiss Defendant Lamberson WITH prejudice. Doc_73_Dismissed_00395(WA) The judge also decided to dismiss the counterclaims of Defendant Lamberson (without prejudice). Previous articles on Elf-Man in WA – 1 & 2.
The court stated they were doing this because:
- Defendant Lamberson agreed to the dismissal (conditionally – only if Plaintiff pays his attorney fees/costs)
- Plaintiff dismissal request was “with prejudice,” preventing them from going after him later.
Note: the court DID NOT award Defendant Lamberson the requested $100,000 in attorney costs and fees as part of the dismissal. When you read the order, you will see that the court was trying to avoid a possible appeal issue dealing with such an award condition. I did find it very interesting to see what “words” the court used when it talked about this matter –“… imposition of sanctions against an attorney.”
The Court declines to grant Lamberson’s request that the Court impose payment of costs and attorney fees as a condition of dismissal—rather than allowing dismissal followed by a request for attorney fees. See Heckethorn v. Sunan Corp., 992 F.2d 240, 242 (9th Cir. 1993) (holding that district court’s condition that plaintiff’s former counsel pay attorney fees to the defendant had no basis because Fed. R. Civ. P. 41(a)(2) is itself not a specific statutory authority for imposition of sanctions against an attorney). Rather, the Court will entertain Lamberson’s timely motion for attorney fees and costs if there are independent grounds for asserting the same.
As the court said it would “entertain” a timely filed motion for attorney costs and fees, I expect one will be filed soon. As the dismissal of Lanbersen is “With Prejudice,” he is now considered the prevailing side and is entitled to reasonable costs and fees. As of 3 Jul 14, Defendant Lamberson’s attorney costs were up to $111,725 (see para #37, page 14, Doc # 68 Doc_68DeclLynch). Note: Defendant Lamberson was given a reduced rate by Attorney Lynch. If the fees had been charged at a normal rate, I expect the total would be closer to $200,000. Elf-Man LLC may turn out to be a loss for the Plaintiff/German Firm.
Now if the Troll/Plaintiff is smart, they will accept whatever award the court allows and try to slink away as quietly as possible. As I don’t think they are too bright, they are likely to claim any award is excessive because Attorney Lynch ran up the costs/fees when there was no need. I don’t think the judge will buy this and it will just mean additional fees to be added to the total. Sure guys, follow the example of Prenda Law. That worked out so well.
What this dismissal (and pending award) will do is make filing any new Copyright Troll BitTorrent case in WA using the German BitTorrent monitoring firms (IPP/Guardaley/Excipio) to be a really stupid move. I think the Trolls already figured this out, as the Lamberson case was the last one to be filed in the jurisdiction (filed on 21 Nov 13).
The information disclosed in the Lamberson case will have a far-reaching effect. With the exception of Malibu Media LLC and Dallas Buyers Club LLC, we have not seen any new Plaintiffs. Malibu Media is fighting hard in MD and I expect attorney Morgan Pietz is taking the information disclosed from the Elf-Man cases and making good use of it. We have a hearing on 30 Jul 14, that should be interesting to say the least.
I also wonder if/when we will see any filings with new names (firms & personnel) for the German BitTorrent technical monitoring apparatus. Maybe we can think up a new name for their shell… For the Elf-Man cases we had the shell company of Crystal Bay Corporation (CBC) and the mysterious Darren Griffin. How about Mike Hunt? Anybody seen Mike Hunt? – OK bad joke. 😉
DieTrollDie 🙂 “Well that’s great, that’s just fuckin’ great, man. Now what the fuck are we supposed to do? We’re in some real pretty shit now man…” – Aliens – Hudson