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Archive for the ‘Judge Kollar-Kotelly (DC)’ Category

With the flick of a wrist and the power a pen, the West Coast Productions, Inc. v. Does 1-5,829 case is dead.

I don’t know whether I should be saying congratulations to the Cashman Law Firm, PLLC clients who are now dismissed from the case, whether I should be writing an obituary on what was one of the longest-lasting monster bittorrent cases, or whether I should be skeptical and cautious at such a simple and eloquent end to such a violent case.

This case had everything wrong with it. Improper joinder, improper jurisdiction, even the content it accused internet users of downloading was distasteful. “I don’t like ugly biker chicks, I’d never download their films,” a Doe Defendant once told me.

On top of everything wrong with it, this case had baggage, namely West Virginia’s West Coast Productions, Inc. lawsuits with Kenneth Ford at the helm, all of which went bust last year.

But it wasn’t jurisdiction or joinder which caused to downfall of this case; it was failing to name and serve defendants within the 120 day limits as dictated by the Federal Rules of Civil Procedure, Rule 4(m). Judge Kollar-Kotelly, realizing that the plaintiff attorneys were using the courts to extract settlement agreements, decided to implement and enforce this rule forcing the case to shut down.

The last stab to the case was a September 1st, 2011 deadline where the plaintiff attorneys were ordered to name and serve defendants, and to report to the court by the end of today who they have named and served.

I was sure that they would at least name the John Doe Defendants who lived in the District of Columbia, and they would in turn ask the court for more time. But instead, they named NOBODY. They merely packed up their bags, closed up shop, and dismissed the case.

What does this mean? Could it mean that the plaintiff attorneys do not have the resources, the time, the patience, or the energy to take clients to trial? Or, did West Coast Productions, Inc. say “enough is enough; we’ve made enough money in settlements — let’s close up shop.” It cannot be that easy.

Here is my take. Before they sue each and every one of the defendants in smaller groups in the correct courts — a tactic that Steele Hansmeier, PLLC and other plaintiff attorneys have caught onto — they had to kill the big bad monster of a case. After all, it would be bad to sue the same defendant in two cases at the same time for the same alleged act of infringement.

So for now, those of you who were defendants in this case, you are no longer defendants, and I congratulate you on your victory. I would whip out the champagne bottles and celebrate, but be very aware that there is one more West Coast Productions, Inc. v. Does case lurking in this same DC court. West Coast Productions, Inc. (1:11-cv-00055), our case’s little brother is still alive and well. While Judge Kollar-Kotelly has taken the sword to slay the extortion machine that was our West Coast Productions, Inc. case, so far, Magistrate Judge John Facciola has been merely pushing paper on the other West Coast Productions, Inc. case.  Really, nothing of substance has been going on there.

What about the letters and the phone calls you all have been receiving?  Should you ignore them?  Probably not.  For the most part, the plaintiff attorneys at Dunlap Grubb & Weaver, PLLC have your contact information, and they plan to use it.  Expect multiple “scare” letters saying, “we plan to sue you unless you pay us $3,500 (or more) by XYZ date.”  Then expect to get additional letters for higher amounts.  As far as whether this is a bluff or not, it is best to be prudent and to watch where they are suing in order to determine where they have hired local counsel.  For example, if you are watching the copyright cases on RFC Express (http://www.rfcexpress.com), and you see that one of Dunlap Grubb & Weaver’s cases — whether West Coast Productions, Maverick Entertainment Group, Call of the Wild, etc. etc. — has been filed in your home court, that should be a red flag that you might be sued yourself.  Lawyering up (e.g., hiring an attorney) at this point if you have not already done so, or even proactively settling might be a wise option.  However, if you see no lawsuits of theirs in your state, my opinion is that there is no need to feed their war chest with your settlement dollars.

I have attached the dismissal letter below for your viewing pleasure. Simple. Voilà!

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On July 12th, 2011, we were all in dismay as to how Judge Kollar-Kotelly allowed the West Coast Productions v. Does 1-5,829 (1:11-cv-00057-CKK) case (in the US District Court for the District of Columbia) to stay alive, especially after imposing a hard deadline enforcing FRCP Rule 4(m) on the plaintiff attorneys which came and went with no comment, no order, essentially leaving us all wondering whether an order of hers actually was something to be taken seriously or not.

Well, today I would like to congratulate many of our clients at the Cashman Law Firm, PLLC on their dismissal from the case. Up front, this is not a complete dismissal, as a number of our clients are still putative defendants in this case.

That being said, as we know, Judge Kollar-Kotelly’s latest order still stands. BY AUGUST 15TH, 2011, PLAINTIFFS MUST NAME AND SERVE (or dismiss) ALL OTHER DEFENDANTS OR ELSE THE CASE WILL BE DISMISSED.

There was no indication as to why they did this today rather than in the next few weeks. My only guess (which is a weak one at best) is that when either the judge or the plaintiffs finally dismiss the case in its entirety, it might look better for the plaintiffs — in terms of preventing FRCP Rule 11 sanctions (should the court or any attorneys bring this up) for filing a frivolous lawsuit and not even naming one defendant after all these months — that the final dismissal be of just a handful of defendants rather than thousands of pages of IP addresses. That would certainly look bad.

I have attached a copy of the dismissal letter below for your viewing pleasure. To those of you who have been dismissed who are not our clients, please allow me to congratulate you on your victory.

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I cannot believe I am saying this, but the West Coast Productions v. Does 1-5,829 (1:11-cv-00057-CKK) case filed in the US District Court for the District of Columbia is still ALIVE.

In short, Judge Kollar-Kotelly has made no secret of the fact that she is beginning to tire of this case. In her most recent order yesterday, she wrote, “the Court shall not permit this case to languish on its docket indefinitely.” (p.3).

In addition, she has made no secret that she has every intention to enforce FRCP Rule 4(m) in order to dismiss this case if the plaintiffs do not name or dismiss defendants within her new deadlines. Following her scant 3-page ruling are eighteen (18) pages of IP addresses in large print belonging to John Doe Defendants who are now dismissed. Surprisingly, none of them belong to our clients.

What we can pull from this order are a whole new set of deadlines that the plaintiff attorneys must adhere to (or maybe we might see yet another extension in a few months).

In short, here is what “must” happen according to her current order:

By July 15th, plaintiffs must file a report with the court indicating who has been dismissed, who they are waiting to hear from, etc. This is nothing so exciting; no doubt the plaintiff attorneys will comply.

By July 29th, plaintiffs must name and serve defendants — and they must file proof with the court that they have complied by August 3rd. My guess is that nobody will be named and served, but a few defendants will be dismissed, and we will see yet another extension request early August.

NEW DEADLINE: BY AUGUST 15TH, 2011, PLAINTIFFS MUST NAME AND SERVE ALL OTHER DEFENDANTS OR ELSE THE CASE WILL BE DISMISSED [AGAIN].

In short, I am disappointed by this wimpy excuse for a ruling. If the judge had some spine she would have stuck to her hard deadline of “name or dismiss by June 30th, or else.” Giving in again and again as far as I am concerned is like telling a child “no, you cannot have that lolly pop,” and then giving it to them. What makes the plaintiff attorneys at Dunlap Grubb & Weaver, PLLC think that if they do not adhere to this deadline that the judge will not extend it yet again?

Maybe this is her plan. Pretend to be against the plaintiff attorneys, but continue to give them as much leeway as they need to collect the thousands-of-dollar extortion payments from each of the thousands of Doe Defendants while she screams about deadlines and court dockets, threatening that she is going to dismiss the case under FRCP Rule 4(m).

Okay, so now what. John Doe defendants who have spoken to me, your case is still alive. This means that the plaintiff attorneys will be contacting you, they will continue to be demanding settlement amounts from you, etc. etc. Their game is now well known.

Obviously it is a basic ethical rule that as soon as I give them notice that I am your attorney, all their calls and “solicitations” must stop. In addition, any correspondences must go through me. This allows me to act as a barrier between you and the plaintiff attorney so that you won’t say anything incriminating, and it allows me to interact with your opponents on your behalf. There are obviously other things I do as your attorney, but bottom line, your judge has given them carte blanche to do whatever they want until this new deadline.

In short, no dismissal.

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[7/10 Update: As of this morning, there is *still* no new activity in this case.  I will continue to monitor the docket, and as soon as I see anything, I will be sure to post about it.]

A lot of people have been asking about the West Coast Productions v. Does 1-5829 case (1:11-cv-00057-CKK) in the US District Court for the District of Columbia. As per our most recent article on the case, the deadline for Judge Kollar-Kotelly’s 5/11 Order (Doc. #72 in the case docket) requiring all remaining defendants be named and served or dismissed by June 30th has passed and there has yet to be a decision.

I will post an article on this site as soon as a decision has been rendered. For those of you that will be dismissed, allow me to congratulate you now.  For those of you that may remain defendants (if a dismissal does not occur or should the case continue on), should you realize that you still need an attorney, you may schedule an appointment for me to answer questions about your case at http://www.cashmanlawfirm.com.

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Congratulations to the newest group of clients who have been dismissed in the West Coast Productions v. Does 1-5829 case (1:11-cv-00057-CKK) in the US District Court for the District of Columbia.

NOT ALL DEFENDANTS HAVE BEEN DISMISSED.  THE CASE IS STILL ALIVE.

As we previously discussed, Judge Kollar-Kotelly set a 6/20 deadline where plaintiff attorneys were ordered to either name and serve defendants identified in their 6/1 statement or else she would dismiss them on her own just as she did previously.  In short, the judge is pressuring the dismissal of unnamed John Doe defendants through the Federal Rules of Civil Procedure, Rule 4(m), which gives the plaintiff attorneys 120 days to amend their complaint and name the defendants, or else they must dismiss them from the case.  In the past, where judges have blindly granted extensions to this rule (which are to be granted freely according to the rules), there is a slight trend beginning to form where judges are using this same Rule 4(m) to force the plaintiff attorneys to “name or dismiss” John Doe Defendants.

Similar to a criminal who releases hostages in order to improve their bargaining power and good faith with the authorities, on the SAME DAY the plaintiff attorneys at Dunlap Grubb & Weaver dismissed these hundreds of defendants, they asked for yet another extension of time to name and serve defendants.  Until Judge Kollar-Kotelly grants this, her 5/11 Order (Doc. #72) requiring all remaining defendants be named and served or dismissed by June 30th still stands.

The interesting side note here is that while in the past neither they nor the courts have acknowledged that they were suing people for the purpose of soliciting settlement agreements to the tune of thousands of dollars from each defendant, in their extension request, the plaintiff attorneys casually mentioned that they needed the extension to attempt to send letters to the defendants with the intention of having them settle their cases.  This appears to be the first admission where they admit to the court that they are soliciting settlements, whereas in the past, both the plaintiffs and the judges have been turning a blind eye to the fact that this is happening.

The dismissal letter can be found below.  I congratulate all the defendants who have been dismissed, and I look forward to see what happens on June 30th.

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[NOTE TO CLIENTS: Regarding the article below, if you are one of those who have been dismissed, I will be sending you a congratulations letter shortly, and I will tell you what the next steps are and what to expect from Dunlap Grubb & Weaver, PLLC.]

Congratulations to our clients who have been dismissed in the West Coast Productions v. Does 1-5829 case (1:11-cv-00057-CKK). I must say up front that NOT ALL DEFENDANTS HAVE BEEN DISMISSED.  In short, this dismissal is merely Judge Kollar-Kotelly enforcing her 5/11/2011 order where she ordered the plaintiff attorneys at Dunlap Grubb & Weaver, PLLC to either name and serve the defendants identified in their 4/15 statement by 5/16 or else she will dismiss them on her own.  Like Judge Shadur has done to dispose with John Steele’s CP Productions v. Does case in the U.S. District Court for the Northern District of Illinois a few months back, Judge Kollar-Kotelly is employing the same Federal Rules of Civil Procedure, Rule 4(m) to dismiss these defendants.

The case itself is still alive.

As for what to expect next, there are a series of dates to watch for.  Firstly, Judge Kollar-Kotelly has set a 6/1 deadline for the plaintiffs to give her a status update as to the various Does still pending in the case.  Nothing of relevance will happen here.  Then, by 6/20/2011, plaintiff attorneys must either name and serve the defendants identified in their 6/1 statement or else she will dismiss them on her own just as she has done here.  Since they have a few days to inform the court of what they have done, we will likely see an order similar to the one we see today on 6/28/2011.

I have attached the order below for your viewing.  To those of you who are not one of our Cashman Law Firm, PLLC clients, please use the attached document to view whether your accused IP address is one of the IP addresses which are now dismissed.  If so, I congratulate you on your dismissal.

Last, but not least, on an ethics note.  It has been brought to my attention that it is the practice of some of unscrupulous attorneys to send out what are known as “scare letters” demanding thousands of dollars, even after a dismissal.  While this is obviously not legal advice, if I received such a demand letter after being dismissed from a lawsuit such as this one, I would immediately contact Judge Kollar-Kotelly’s chambers at (202) 354-3340, and I would ask to fax in a copy of the letter I have received so that the court can be made aware should the plaintiff choose to send such a letter.

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[UPDATE: I just found out that Judge Howell wrote almost identical opinions in the Voltage Pictures, LLC v. Does 1-5,000 (1:10-cv-00873-BAH) case and the Call Of The Wild Movie, LLC v. Does 1-331 (1:10-cv-00455-BAH) case to the opinion she wrote in the Maverick Entertainment Group v. Does 1-2,115 case, as described below.]

No doubt there will be many questions about the new order in the now Maverick Entertainment Group v. Does 1-2,115 case (1:10-cv-00569-BAH) — same case, new number of defendants from the recent dismissals. In addition, there is new news in the West Coast Productions v. Does 1-5,829 case (1:10-cv-00057-CKK).

First, the Maverick Entertainment Group news. Today, Judge Howell mentioned in her order that no jurisdiction nor any joinder arguments will be entertained by the court until defendants are named in the case. This twenty-six page ruling is essentially the same as her previous ruling, but this time she explicitly said that once defendants are named, they will have these defenses, and chances are they will be meritorious. To use her words, “[t]he putative defendants’ argument that they are improperly joined may be meritorious should they be named as defendants in this action.” (emphasis added, p.11)

*Surprisingly missing from her opinion was the elephant in the room — the settlement demand letters.* Judge Howell goes on to say, “…the putative defendants are not subject to the plaintiff’s subpoenas, and therefore do not face any ‘annoyance, embarrassment, oppression, or undue burden or expense’ from the plaintiff’s discovery request (as per Fed. R. Civ. P. 26(c)(1)).” I cannot possibly believe Judge Howell does not know that the plaintiff attorneys are demanding settlements from defendants.

They say justice is blind, but not stupid. Perhaps a few of us attorneys and our clients should send Judge Howell a sampling of the settlement letters our clients have received over the past few months.

Next topic, the West Coast Productions case. In short, yesterday, Judge Colleen Kollar-Kotelly ordered that certain defendants should be named and served with process by May 16th, 2011 or they should be dismissed. My guess is that that they will dismiss these defendants so that the case will remain alive.

In addition, the judge ordered that by June 1st, 2011, the plaintiffs need to give the court an accounting as to which of the defendants have been dismissed; which of the John Does have been disclosed by the various ISPs, and which they are still waiting for; and, which John Does cannot be named because the ISPs no longer have their contact information (e.g., likely because they purged the records after six months according to each ISP’s IP retention policy).

Last, but not least [and this is the juicy part], the judge ordered that by June 20th, the plaintiffs should either name their defendants or dismiss them. She is doing this by way of FRCP Rule 4(m), which is the way Judge Shadur dismissed the CP Productions, Inc v. Does case in the US District Court for the Northern District of Illinois just a few months ago.

In short, it seems as if the DC court is getting tired of these cases. Judge Beryl Howell (the former copyright lobbyist) is sticking to her guns and not dismissing these cases and she is turning a blind eye to what the plaintiff attorneys are doing. Yet, possibly due to political pressure, she has softened her approach and has conceded that as soon as plaintiffs start naming defendants, she may start severing and dismissing them for lack of jurisdiction and/or improper joinder. [She also gave one strong evidentiary hint as to the weaknesses of these cases, but we will deal with that in another article if and when it becomes relevant.] Similarly, in this same court, Judge Colleen Kollar-Kotelly seems to also be tiring of these cases. Instead of playing chicken with the plaintiffs in a “don’t name or else” stance as Judge Howell has done, Judge Kollar-Kotelly seems to be going the route of Illinois Judge Shadur in using FRCP Rule 4(m) to dispose of the case.

This is all good news. I am happy to share it with you.

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