The most hilarious part is that the defendant wasn’t even represented — he fought pro se instead. This tells volumes about the quality of Malibu’s “investigation” and “proof.” What we witness is a bluff on a massive scale, nothing more.



This is a relatively new case, filed by a copyright troll Christopher Fiore (or to be precise, by the Miami’s troll center using Fiore’s ECF login) on 2/28/2014 — Malibu Media v. John Doe (PAED 14-cv-01280). The defendant decided to fight rather than to pay up: on 4/3 he filed a motion to dismiss the action and quash the subpoena, which was denied on 5/19. As it happens in these shakedown cases, trolls obtained the Doe’s identity and started pressuring him to settle outside of the court: well-oiled extortion machinery in action, nothing new.

The Rule 4(m)’s 120-day time window to serve the defendant was about to expire three weeks after Comcast sold out its customer’s identity to the troll, so on the last day (6/30/2014) the troll moved for an extension in order to have more time to apply pressure. That extension was granted on 7/9, setting 7/30 as a new service deadline. Business as usual: the majority of judges rubber-stamp those extension motions without reading, and they do it again and again.

Not this time. Judge Stewart Dalzell, presented with the extension request for the second time (which Judge Restrepo from the same district would consider as a mere beginning of the long and happy journey), actually questioned the validity of the delay. And he wasn’t happy:

(m) We find that Malibu’s failure to serve within the time we specified was not reasonable because it knew the defendant’s identity for three weeks before the expiration of the Rule 4(m) period and offers no reason for its failure to serve him, and accordingly we find that Malibu has not shown good cause; (n) However, we will exercise our discretion under McCurdy and grant Malibu a last extension to August 11, 2014 to serve the defendant, after which this matter will be dismissed without prejudice;

So the defendant was served, and he answered the complaint on 9/2/2014, denying any wrongdoing.

Because of this judge’s intolerance to frivolous delays, this case progressed rather quickly: the defendant submitted his hard drives to Malibu’s “expert” Patrick Paige, who searched and… found nothing. Well, he found some evidence of Bittorent activity from 2010 and a file with the name “Angelica – Good Night Kiss,” which is the name of one of XArt’s hardcore porn flicks. Paige didn’t specify that this file contained the entire movie or even a part. Do you believe that if it was the case, the trolls wouldn’t shout about it? Me neither. This file certainly wasn’t a media file (or a piece) — as the defendant explained later, it might have been a Google cache of a search resulted from a research after the defendant was hit with the lawsuit.

Also, there was an evidence of USB drives connected to defendant’s computers, and those drives were not offered for inspection. Of course the trolls cried “spoliation!” This hysterical accusation didn’t have any effect on the judge, as we will soon see. The defendant himself didn’t oppose to supplying the portable drives — he didn’t think that he did something wrong at all: initially he was only asked for hard drives. He even offered the USB drives for inspection later.

So, having nothing in their hands, the trolls proceeded to pound the proverbial table — they subpoenaed Comcast for the defendant’s data usage and possible DMCA notices. Such request is essentially an admission of the king’s nakedness: the only reason for requests like this is to continue the pressure in a hope that a troll’s victim will break down and pay the ransom. This is not a new strategy.

Scroll down, and you will see that the judge was not impressed either by the spoliation claims, or by the “circumstantial evidence” (an unethical tactic, for which Malibu was sanctioned in the past):

That Malibu Media chose not to ask for the missing storage devices after their existence became evident to its expert in no way bolsters its hollow claim. Nor are we impressed by the histrionics over alleged spoliation. Malibu Media, as the party seeking a spoliation sanction, bears the burden of proving there has been spoliation. […] Malibu Media makes much of what it called “additional evidence,” that is, indications that Doe used his computer to infringe others’ works between 2005 and 2010 — well before the period at issue in this case — and then sought to scrub the traces. Such efforts do nothing to establish Malibu Media’s claim as to its copyrighted works. It is well-established that the statute of limitations to bring claims under the Copyright Act is three years. 18 U.S.C. § 507(b). Therefore, the use and ownership of Doe’s computers before 2011 are irrelevant here as a matter of law. […]

On 12/16/2014 the defendant was deposed; he stayed strong and maintained his innocence.

So, finally, both Malibu and the defendant filed the motions for summary judgment (both under seal), and today Judge Dalzell granted the defendant’s one, denied the plaintiff’s. The Memorandum and Opinion is beautiful in its detailed debunking of plaintiff’s grossly unsubstantiated claims:

[…] Malibu Media cannot prevail here because it does not identify any evidence upon which a jury could reasonably find for it. Malibu Media has failed to raise a genuine issue of material fact as to its copyright claims. As is well-established, a fact is “material” if it “might affect the outcome of the suit under the governing law.” […] None of plaintiff’s responses in opposition is material in the absence of evidence that Doe downloaded or distributed any copyrighted Malibu Media works-a complete failure of proof concerning the essential element of its claim. Malibu Media has failed to show that there is a genuine issue for trial. Plaintiff’s efforts to shift its burden of proof onto the defendant are unavailing. However troubling Doe’s evasive and shifting answers may be, none animate “disputes over facts that might affect the outcome of the suit” that would preclude summary judgment. […] We will therefore grant Doe’s pro se motion for summary judgment.

Judge shopping?

I decided to look at the other Malibu cases assigned to Judge Dalzell that were dismissed on July 2014 and later. It turned out that all the cases assigned to this judge are currently closed, and only two from the list were settled, the other defendants are apparently dismissed solely because the cases were assigned to an “inconvenient” judge: I have an impression that the coward trolls ran from this judge at the first opportunity. In my opinion, this is a blatant judge shopping. Correct me if I’m wrong:

14-cv-02478 (4/29/2014) 7/15/2014: The judge grants the second motion for extension of time, setting 8/29/14 as a deadline. 7/17/2014: Ten days later Malibu dismisses the defendant without prejudice.

14-cv-01659 (3/20/2014) 7/11/2014: The judge grants the second motion for extension of time, setting 8/15/14 as a deadline. 7/17/2014: Six days later Malibu dismisses the defendant without prejudice.

14-cv-01978 (4/3/2014) 8/01/2014: The judge grants the second motion for extension of time, setting 8/27/2014 as a deadline. 8/27/2014: On the deadline Malibu files the third motion for extension of time, but without waiting for the order, two days later (on 8/29/2014) dismisses the defendant without prejudice.

14-cv-02762 (5/14/14) 7/15/2014: The judge grants the second motion for extension of time, setting 8/29/14 as a deadline. 8/28/2014: One day before the deadline Malibu dismisses the defendant without prejudice.

14-cv-02471 (4/29/2014) 7/10/2014: Malibu moves for ex-parte discovery, which is apparently granted (the order granding discovery, Doc. 5 is missing from Pacer). 9/19/2014: The defendant settles with Malibu, dismissed with prejudice.

14-cv-02537 (4/30/2014) 8/01/2014: The judge allows ex-parte discovery, ordering the service to be effectuated by 9/13/2014. 9/15/2014: Two days after the deadline Malibu dismisses the defendant without prejudice.

14-cv-03803 (6/19/2014) 7/17/2014: The judge allows ex-parte discovery, ordering the service to be done by 10/17/2014. 9/19/2014: The defendant settles with Malibu, dismissed with prejudice.

14-cv-05122 (9/05/2014) 1/7/2015: The judge denies the motion for extension of time, closing the case. 1/9/2015: Two days later Malibu (unneccesarily) dismisses the defendant (probably because of the mess in the trolls’ backoffice).



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