sdny-15-cv-02604-doc-23

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Case 7:15-cv-02604-KMK Document 23 Filed 10/09/15 Page 6 of 8 open the door to abusive settlement tactics. See On the Cheap, LLC v. Does 1-5011, No. 10-4472-BZ, 2011 U.S. Dist. LEXIS 99831, 2011 WL 4018258, at *3 & n.6, 4 (N.D. Cal. Sept. 6, 2011) Nothing currently prevents Plaintiff from sending a settlement demand to the individual that the ISP identifies as the IP subscriber. That individual “whether guilty of copyright infringement or not” would then have to decide whether to pay money to retain legal assistance, or pay the money demanded. This creates great potential for a coercive and unjust “settlement.” Pac. Century Int’l, Ltd. v. Does 1-101, 2011 U.S. Dist. LEXIS 124518, *7-9 (N.D. Cal. Oct. 27, 2011) (emphasis added). Again, no one has forced Malibu Media to litigate against an unknown party. Rather, Malibu Media admittedly lacks knowledge of the correct identity of the proper party to begin with. Defendant, herein, was sued not on the basis of his allegedly infringing activity, but due to his status as subscriber of the IP address utilized. V. None of Malibu Media’s 4,902 Cases Have Ever Proceeded to Trial. Malibu Media claims “a proven track record of litigating and prevailing in its cases.” Doc. 20 p. 15. In support, it cites a laundry list of cases that are either unresolved, settled or were voluntarily dismissed. In particular, Malibu Media claims to have “won the first ever BitTorrent copyright infringement lawsuit to reach trial.” In keeping with its tradition, Malibu Media overstates the significance of what has been panned as little more than a show trial. In fact, the trial came to be precisely because the court therein found Malibu Media’s conduct indicated a lack of intent to litigate its claims or to proceed to to trial. [I]t appears that Plaintiff has served the subpoenas allowed by this Court on the ISPs, and has received information enabling Plaintiff to serve the Complaints on certain John Does. However, the record does not show that Plaintiff has, in fact, served a Complaint on any John Doe. Malibu Media, LLC v. John Does 1, 6, 13, 14 and White, 902 F. Supp. 2d 690, 693 (E.D. Pa. 2012); id. at 695-696 (“Plaintiff’s counsel candidly advised the Court that the Plaintiff's strategy is, after initiating the lawsuits, to seek leave to serve third-party subpoenas on the ISPs to obtain identification information for the IP addresses specified in Exhibit A to the Complaints. … In this fashion, Plaintiff has initiated hundreds of lawsuits in various district courts throughout the country, but has not yet proceeded to trial in any case.”). In the course of pre-trial procedures, two of the defendants in White settled, leaving three defendants for trial. Prior to the June hearing, Malibu Media informed the court 1) it had settled with two of the remaining defendants but wanted a “final judgment” to enter against them; and 2) Bryan 6
Case 7:15-cv-02604-KMK Document 23 Filed 10/09/15 Page 7 of 8 White, the third defendant, had reached a high/low agreement with Malibu and wouldn’t be paying the whole damages amount, regardless of how the court ruled.2 White, No. 12-cv-2088, ECF Nos. 100, 101 & 102 (E.D. Pa. June 17, 2013). See also Exhibit A (Transcript of June 18, 2013 hearing). Lastly, the only party to actually put on witnesses was Malibu Media, but there was no cross examination, no testing of their evidence or methods. In sum, all of the defendants stipulated to liability and the amount of damages due before the hearing. There was nothing at issue during the one-day bench trial—neither liability, nor sufficiency of the evidence, nor damages. “A single trial almost two years ago against three defendants, all of whom admitted to liability and two of whom settled as to damages prior to trial, is of little relevance to the present inquiry.” Malibu Media v. Ramsey, No. 14-cv-00718-TSB, CM/ECF No. 15 p. 17 n.12 (S.D. Ohio May 26, 2015). claims at trial. If anything, Malibu Media has “a proven track record” of avoiding discovery and litigating Malibu’s corporate strategy relies on aggressively suing for infringement and obtaining accelerated discovery of the IP address holder’s identity from the ISP. It then seeks quick, out-of-court settlements which, because they are hidden, raise serious questions about misuse of court procedure. Malibu Media v. John Doe 66.108.67.10, No. 15-cv-04369, 2015 U.S. Dist. LEXIS 87751, *10 (S.D.N.Y. July 6, 2015). “In fact, most cases are voluntarily dismissed by Malibu Media pursuant to Rule 41(a)(1)(A)(i) without obtaining a summons, but presumably after Malibu Media has used the third-party subpoena to obtain a settlement.” Malibu Media v. Ramsey, No. 14-cv-00718, CM/ECF 15 p. 5 (S.D. Ohio May 26, 2015). “In the more than 60 Malibu Media cases before this Court, Malibu Media has not shown any indication that it intends to prosecute the merits of its copyright infringement claims.” See e.g. Malibu Media v. Downs, No. 14-cv-00707, CM/ECF 17 p. 17 (S.D. Ohio May 26, 2015). CONCLUSION Malibu Media’s Complaint is premised upon conjecture and requires the kind of speculation that the Supreme Court has prohibited. Read in its entirety, the Complaint is a patchwork of guesses and contradictions. Thus, plaintiff has failed to adequately allege an actionable claim. Defendant 7
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