A very strange mystery document has turned up in Elektra v. Santangelo. This is the case in which Judge McMahon denied the RIAA's motion to dismiss "without prejudice", and said that it either had to prepare for trial and go to the pretrial conference on April 13th, or it had to enter into a stipulation of dismissal with prejudice no later than April 1st.
According to the court records the following bizarre mystery document was filed by the RIAA late Friday:
Mystery Document (Stipulation of Dismissal Signed by Richard L. Gabriel only and filed as a "Notice")
The lawyers among you will understand how bizarre this is. For the non-lawyers:
1. After the answer has been filed (which happened a long long time ago in this case) the only way a stipulation of dismissal can be entered into is if all parties sign it; this document was not signed by defendant's lawyer;
and
2. There is no such thing as electronic filing of a stipulation in this Court; any stipulation is supposed to be submitted to the Stipulations and Orders clerk by email for submission to the Judge.
* Document published online at Internet Law & Regulation
Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
19 comments:
I was for the war, until I was against it. Oh, sorry, that was somebody else trying to play both sides of an issue.
How about: We were for suing this defendant, until we actually had to go to court over it.
I can only guess that he was trying to ensure he beat the deadline by showing his "intent" to comply with the judge's orders to dismiss with prejudice, or prepare for trial, and couldn't get opposing council's signature in time. Rather than be late, he submitted an invalid document to show his "good intentions."
May just be me, but looking at that gives me the idea he was really scared of missing a deadline.
Of course, opposing council might want it to include an agreement of attorney fees paid before signing, but that's pure speculation on my own part.
This really has been a Heck of a Week for the good guys. Thanks for all the entertainment to the rest of us.
I bet that this is something that the RIAA has typed up just in case that the judge deined the Plaintiff's motion to dismiss without prejudice. They filed it without Mr. Glass's signature.
The judge will see this and throw it out.
Mr. Gabriel did this unilateral move just to make sure for himself that he had all his stuff packed in on time.
He still needs some more practice to do it orderly though!
I think the RIAA does not want to face trial and lose, and wants to pull a fast one by using a controversial tactic to end the case. I think they are afraid that Patti may win, or that this case recieved so much media attention by Patti standing up and fighting instead of paying Settlement Support Center.
Just ONE "not guilty" or "not liable" precedent will endanger the campaign for the RIAA, or cost them a lot of money with others trying to defendant.
Stephenh brought up an interesting question among the people looking over my shoulder this morning.
Ray, has the RIAA ever taken one of these to trial? If so hwo did they do?
I deleted a couple of misleading posts.
I am not aware of any case having gone to trial (which is not to say there haven't been any, I just don't know of any).
If the RIAA has had trials and lost, they haven't told me.
If they had had trials and won them, I think they would have mentioned it by now.
"I deleted a couple of misleading posts."
Yes. Mine.
I suppose being unwilling to have the RIAA associate a handle with my posts has its downsides like not being able to create a history of posts so that Ray won't think I'm an RIAA troll.
I don't know what could have been "misleading" about my post. It certainly wasn't pro-RIAA, nor have any of my posts been (check my posts by IP). I would think that a post by Ray explaining why my post was "misleading" would have been more informative than merely deleting it.
I noted that to a non-lawyer the RIAA stipulation to withdraw with prejudice didn't seem that odd. This was not a defense of Mr. Gabriel but an acknowledgment that Ray's explanation of how unusual the filing was key to understanding the post in context because to a neophyte the stipulation seemed to be what the Judge had asked for in the March 19th Order:
"...then the parties need to file a stipulation of discontinuance with prejudice by April 1, so Mrs. Santagelo's can prepare his contribution to the pre-trial order and other papers required by the courts rules." March 19, USDJ
I was very surprised to have my post characterized as misleading. Lacking a full understanding, certainly, but misleading?
I don't know if Ray was implying that a "misleading" post would be a posts by an RIAA troll, but I would very much be offended if that were the case. And to those who might say "thou dost protest too much," I would say that to say nothing at all would be to protest too little.
My guess would be that the RIAA lawyer messed up. They wanted to wait as long as they could before committing to dismissal with prejudice, and then when they did commit they found they couldn't get a signature from the defense attorney as quickly as needed. The filing is a (possibly vain) attempt at CYA, something they can hold up to the judge and go "But we tried to make it by the deadline, honest we did!".
It is obviously up to the Judge, but if I read things right, they missed the deadline (because the filing is not proper) and thus this case is likely to actualy sit in front of a Jury
Dear anonymous,
I wasn't saying "RIAA troll". When I mean "RIAA troll" I say so.
I meant there was something in the post that was inaccurate and hence misleading to other readers.
I don't remember which yours was. I remember that one of them incorrectly gave the impression that there could be any rational basis for a lawyer filing a bizarro document like the one that was filed.
I'm already spending way too much time on the blog stuff already, I can't go into detailed commentaries on incorrect posts...
You just can't discontinue with prejudice UNLESS THERE'S AN AGREEMENT BETWEEN THE LAWYERS FOR BOTH SIDES. PERIOD. PROBABLY DEFENDANT'S LAWYER WOULD SIGN SUCH A STIPULATION IF THE RIAA IS WILLING TO WRITE A CHECK FOR $100K OR SO IN ATTORNEYS FEES.
Although they have missed the deadline, it would never be too late to enter into a settlement. The judge isn't going to try the case if both sides are willing to settle.
I'm sure the RIAA could get out of it by writing a nice big check for the attorneys fees.
Am I missing something here? Do we really believe that Patti would have instructed her lawyer to sign this document when she clearly has the RIAA on the run?
No way did she instruct her lawyer to sign it.
Mr. Gabriel seems to be losing his bearings altogether.
But what else can one expect from someone who sues MS victims, displaced Hurricane survivors, young children, stroke victims, and people who never even used a computer?
"You just can't discontinue with prejudice UNLESS THERE'S AN AGREEMENT BETWEEN THE LAWYERS FOR BOTH SIDES. PERIOD. PROBABLY DEFENDANT'S LAWYER WOULD SIGN SUCH A STIPULATION IF THE RIAA IS WILLING TO WRITE A CHECK FOR $100K OR SO IN ATTORNEYS FEES."
Thank you for the clarification. I enjoy following this slow moving and fascinating soap opera/David vs. Goliath battle but their are nuances that I completely miss as a non-lawyer. Your comments (when you can make them) are extremely helpful to understanding what's going. on.
Thanks for the blog. It is not only fascinating, but clearly a help to others who are being unfairly targeted by an organization that seems to act a lot like a vexatious litigant, in my non-lawyer's private opinion.
vexatious litigant = spoiled child, in terminology for the rest of us.
you're welcome, anonymous....
why don't you register so i don't have to call you anonymous....
Judge McMahon ruled that the RIAA must proceed to trial unless a stipulation of discontinuance with prejudice is filed by April 1st.
Do we take it that as the mystery document did not meet the requirements of the court then we proceed by default with both parties attending the April 13th status conference with a pretrial order in hand?
yes they are supposed to go to the pretrial conference on april 13th prepared to submit their pretrial order....
but if they reach a settlement and enter into a stipulation of discontinuance with prejudice, or if they stipulate to discontinue the case with prejudice except for the attorneys fees issue, i'm sure the judge will be pleased to accept such a stipulation even though the deadline has passed...
one less case on the trial calendar is always welcome....
one less case on the trial calendar is always welcome....
Agreed - but it is perhaps more important to find the tap (fawcett)at the other end and turn it off!
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