Saturday, October 13, 2007

Michelle and Bobby Santangelo Move to Add Counterclaims for Conspiracy to Commit Extortion, Deceptive Trade Practices, Copyright Misuse & Other Claims

In Elektra v. Santangelo II, the RIAA refused to consent to the defendants amending their answer to assert expanded counterclaims, forcing defendants to make a motion for leave to amend.

The new counterclaims include civil conspiracy to commit criminal acts (use of unlicensed investigators, extortion, and computer fraud and abuse), computer fraud and abuse, copyright misuse, and trespass to chattels.

(Ed. note for the non-lawyer: it is unusual in federal litigation for a party to refuse to consent to the other party's amending his pleadings, especially at an early stage of the litigation, since there is a strong preference in the federal courts for pleadings to be freely and liberally amended at any stage. See, e.g., UMG v. Lindor, 2006 WL 3335048 (EDNY November 9, 2006) (pdf), holding that "leave to amend should only be denied if there is a good reason for it, such as futility, bad faith, undue delay, or undue prejudice to the opposing party". However, the RIAA lawyers do not appear to follow this rule, and routinely deny such consent, even where -- as in this case -- hardly anything substantive has occurred.).

Defendants' Memorandum of Law in Support of Motion for Leave to File Amended Answer and Counterclaims*
Exhibit A -- Defendants' Proposed First Amended Answer and Counterclaims*

* Document published online at Internet Law & Regulation

Commentary & discussion:

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