Motion For Fees/Costs & Sanctions X2 For Elf-Man LLC – Lamberson Case # 2:13-cv-00395 (WA)

I assumed the motion for attorney fees and costs would soon be filed in the Elf-Man LLC v. Lamberson case, 2:13-cv-00395.  What I did not expect (and was nicely surprised) was for there to be TWO additional motions filed by attorney Lynch.

Motion For Attorney Fees   Doc_75_FeesCosts_00395(WA)    Doc_76_Decl_Lynch_FeesCosts_00395(WA)    Doc_77_BillCosts_Statement_00395(WA)

Motion For Sanctions Pursuant To 28 USC § 1927   Doc_78_Mot_Sanctions_28USC1927_00395(WA)   Doc_79_Decl_Lynch_Sanctions28USC1927_00395(WA)

Motion For Sanctions via Rule 11   Doc_80_Mot_FRCP11_Sanctions_00395(WA)   Doc_81_Decl_Lynch_FRCP11_00395(WA)

The various exhibits are attached, so the documents are a bit long – but so fun to read. 🙂

Here is the bottom line for these motions.

Motion For Attorney Fees/Costs$191,230 attorney fees + $1,405.19 for costs = $192,635.19.  The attorney fees will also likely go up when attorney Lynch files a reply to any Troll/Plaintiff response to these motions.  Attorney Lynch asked the court to require Plaintiff immediately pay the judgment or be required to post a bond.   In addition, they also requested the court hold BOTH APMC LLC and Plaintiff responsible for paying any judgment.

Finally, Mr. Lamberson requests that any award herein become a judgment against plaintiff and its “representatives,” including APMC, LLC, the financier of the case and real party in interest. AMPC stood to collect first had Elf-Man LLC prevailed, so APMC should stand to pay first when Elf-Man LLC loses.

Motion For Sanctions Pursuant To 28 USC § 1927 – Attorney Lynch states that under 28 USC § 1927 and the courts inherent authority, APMC LLC, Vision Films Inc., Elf-Man LLC, and Plaintiff’s counsel should be sanctioned for their recklessness and “bad faith” in litigating this case.

Here, the conduct of plaintiff and its counsel is subject to sanctions under both tests. Plaintiff was reckless in its undertakings, multiplying the proceedings. There is repeated evidence of bad faith, including concealing a real party in interest. Plaintiff’s decisions were uniformly inconsistent with the genuine interests of Elf-Man, LLC, a schism that led to withdrawal of counsel. This is improper purpose, and improper purpose is bad faith under the authority. APMC, LLC, Vision Films, Inc., and plaintiff’s counsel should be with Elf-Man, LLC before the Court. Here are ten representative examples of multiplication of the proceedings:

The Ten examples are – Multiplication #1: The First Amended Complaint; Multiplication #2: Where are the valid summonses?; Multiplication #3: Where is the Copyright Certificate?; Multiplication #4: Who “Observed Infringing”?; Multiplication #5: Where are the Initial Disclosures?; Multiplication #6: Where is the Discovery?; Multiplication #7: Where is the Technical Report?; Multiplication #8: Where is the Investigator Explanation?; Multiplication #9: Where are the Investigators?; and Multiplication #10: Who is APMC?

Attorney Lynch also quotes Judge Otis Wright (Ingenuity 13 (Prenda Law) v. John Doe, 2:12-cv-08333), in his assessment of the flawed mass-defendant BitTorrent law suit that Elf-Man LLC is akin to – Elf-Man is the same, only the stigma is banality, not pornography.“

Motion For Sanctions via Rule 11 – Attorney Lynch request FRCP 11 sanctions be imposed for Troll/Plaintiff’s failure to withdraw the First Amended Complaint.

Rule 11(b) requires (i) certification of a reasonable inquiry, plus that (ii) the pleading is not for improper purpose, (iii) the claims are warranted by law, and (iv) the factual contentions have evidentiary support. Ms. VanderMay’s signature on the First Amended Complaint and failure to withdraw it violate Rule 11(b). Bad faith is not required. Truesdell v. S. Cal. Permanente Med. Grp., 209 F.R.D. 169, 174 (C.D. Cal. 2002) (citing Ninth Circuit cases).

The Conclusion sums it up perfectly.

Ms. VanderMay’s federal lawsuits against over 60 people in this District within one week of her admission were signed without basis or adequate investigation under Fed. R. Civ. P. 11. Objective counsel would have sought the jurisdictional copyright certificate and submitted it. Objective counsel would have supported a motion for Expedited Discovery with foundational witness testimony. Objective counsel would have researched copyright infringement, contributory copyright infringement and other secondary copyright infringement liability to confirm that none of those avenues of liability applied to the facts at hand. Objective counsel would listen and adjust when Judge Lasnik expressed concern sua sponte that plaintiff’s counsel cannot meet her Rule 11 obligations. Objective counsel would have understood emphatic pleas of innocence as a sign that there may be a problem with the case, not that there was not a problem. Objective counsel would take advantage of an accused defendant’s offer to demonstrate his innocence, especially when paired with an express allegation of a violation of Rule 11.

What Now???

TORP_Town1Now attorney Lowe has 14 days to respond to these motions – 4 Aug 14.  At that time attorney Lynch will have 7 days (11 Aug 14) to reply to any response Troll/Plaintiff makes. Following that, the court will rule in 30 days or less (approx. 11 Sep 14). There is also a chance for oral arguments, but that will only happen if the court orders it.

I can only see Troll/Plaintiff making the tired claim that attorney Lynch’s fees/costs are excessive and that he multiplied the proceeding to raise them to up.  I don’t expect the court will give this much weight, but the worst that will happen is the court may reduce some of the fees/costs, but probably not very much.

The issue of sanctions IAW FRCP 11, 28 USC § 1927, and the court’s inherent authority are what is going to be interesting.  This court has access to the document under the protective order, as well as a good understanding of how Troll/Plaintiff has played this game and abused the legal system for profit (My Opinion).  I don’t expect a Judge Wright Photon Torpedo, but I am hopeful.  😉  Please take a read of all the documents/exhibits and give me your thoughts.

DieTrollDie 🙂   The hard part about playing chicken is knowin’ when to flinch.”  – {Capt. Bart Mancuso – The Hunt for Red October}

Previous Elf-Man Article.

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 -
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6 Responses to Motion For Fees/Costs & Sanctions X2 For Elf-Man LLC – Lamberson Case # 2:13-cv-00395 (WA)

  1. KS says:

    Very clever. These motions put the very issues BACK ON THE TABLE that the Plaintiff sought to run from when they filed for dismissal of the case.

  2. WDS says:

    May Mr. Lamberson be awarded every cent, plus an equal amount for each of the 2 sanctions motions.

  3. Anon E. Mous says:

    There s a lot of ammunition in these documents for costs and sanctions that are going to haunt the trolls not only in any further ELF-MAN LLC cases but in other torrent cases as well.

    As for Mrs Vandermay what comes around goes around, and Karma is sprucing up to look it’s best when it visits Mrs Vandermay. The Judge smells the stench from these cases and remarked as much in court documents. The trolls have been gaming the system and it is starting to backfire now.

    Now does anyone honestly think that Troll Vandermay and the other trolls filing these type of cases will learn and stop before they end up like the Prenda gang? In my opinion I doubt it, the lure of easy cash is hard to resist for this group, so they will try and tweak things to keep the money train rolling.

    I would hope this Judge pulls a Judge Wright and refers them all to the US Attorney General and the IRS for investigation as well as to the appropriate state bar associations they belong to.

    I will be keeping an eye on this to see how this pans out, I sincerely hope the Judge serves some Justice and does not let them slink away encouraged to keep the troll lawsuit going, last thing we need is the Troll’s feeling empowered.

    • DieTrollDie says:

      Very true- karma is a bitch. I think some of these attorneys who jumped on this figured they were “Not like Prenda” and safe from any blow-back. Think again. If we are lucky enough to see Troll Vandermay be sanctioned, I think it will make it even harder for the Masterminds to find lawyers willing to do this work. The award of fees/costs and any sanction is going to have a greater affect on these mass Doe cases, as well as Malibu Media IMO. It will be hard for them to claim that because they are real Plaintiff with a real movie, that the stink of Prenda and copyright trolling in general doesn’t apply. Other attorneys will follow Lynch’s lead and cite this case. Judges will see that one of them ruled this way and look at the details of their cases. I think we are at an important stage. 🙂

      DTD 🙂

  4. WDS says:

    This case was sloppy even for your typical bit torrent copyright case. They didn’t even put together the documents to pretend that there was a real case there. No copyright certificate, no declaration from an investigator that they can pretend will eventually show up to testify. This case is just begging for sanctions.

  5. Rumplestein says:

    Although sloppy mess made by Vandermay’s bullying tactics, the defendant’s attorney’s point out Malibu Media are the same game. Except with the Field’s and Lipscomb one knows where the money is and they can’t hide offshore. There seems to be a blue print almost as rich as Blue Beard’s treasure map.

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