At the end of a case, although a litigant may be disappointed in the outcome, he should still leave the courthouse feeling that he has been treated fairly.

From the opening brief in CA6 16-3628

As I wrote in my 6/11/2016 post “Righting the wrongs: Malibu Media defendants appeal bad rulings,” in Malibu Media v [John Doe] (OHSD 14-cv-00821), a competent defense by Booth Sweet caused the troll to cowardly cut and run, i.e. after plaintiff’s walk-away offer was rejected by the defendant, Malibu moved to dismiss the case without prejudice — to avoid paying loser’s fees.

To our astonishment, Magistrate Judge Terence P. Kemp allowed the dismissal, ignoring well-documented and well-presented evidence of plaintiff’s discovery shenanigans. The order reads like the judge was annoyed by aggressiveness of the defense and simply wanted this case out of the docket — damn the merits.

Initially the opening brief was due on 8/3/2016. However, the deadline was extended a couple of times because the defendant requested the district court to supplement the record with the statements of proceedings: i.e., to put in writing what happened during two phone conferences.

After the district court satisfied the defendant’s requests, no more extensions were allowed, and the opening brief was finally filed today.

Denying any chance of recovery under § 505 after Malibu voluntarily dismissed its suit provides an escape hatch encouraging abusive behavior and vitiate the application of § 505 where it is needed most, and leaves [John Doe] nothing but a pyrrhic victory in a meritless case. As discussed above, when confronted with a meritless suit, defendants face the dilemma of settling for anything less than the cost of litigation or litigating at great expense. Malibu has further leveraged the lopsided, upfront costs of discovery with the goal of forcing early settlements while assuming little risk. The possibility of incurring fees under § 505 has the potential to help balance the litigants’ positions and discourage meritless suits. Problem is Malibu starts with the conclusion a defendant is the infringer, then works backwards ignoring or discounting anything that does not fit that narrative. Disallowing [John Doe]’s potential recovery after a voluntary dismissal eliminates any chance of balance, especially where the most abusive litigation strategies always end in settlement or dismissal before trial. Such a result is manifestly unjust and would all but force defendants like [John Doe] to settle regardless of the underlying merits of the case.

In addition to the claim that the court abused its discretion “to grant voluntary dismissal based on findings of fact without citations to the record, and for which there is no credible evidentiary support,” the defendant also contests earlier dismissal of his non-infringement counterclaim, quoting Judge Alsup’s well-reasoned recent decision to keep an identical counterclaim alive.

As it is always the case with Jason Sweet’s pleadings, this brief is easy to read even for a lay person. As for the bittorent defense attorneys, I hope this document provides new facts and ideas aimed at defeating the troll.