Tuesday, November 13, 2007

Defendant Moves to Dismiss With Prejudice in Interscope v. Kimmel case in Binghamton, NY

In Interscope v. Kimmel, pending in Binghamton, New York, the defendant has moved to dismiss with prejudice, based upon the RIAA's having brought a total of four (4) actions against him, having withdrawn the first three.

Declaration of Richard A. Altman in Support of Motion to Dismiss*
Memorandum of Law in Support of Motion to Dismiss*

* Document published online at Internet Law & Regulation

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3 comments:

Anonymous said...

Most batters are out after three strikes. The RIAA doesn’t seem to think this rule applies to them either.

I like how the phantom – phony, if you prefer – initial ex parte case that the RIAA never has any intent of actually pursuing can now count against them. I’ve always felt it was misuse of the judicial process to file a suit solely to discover private and privileged information, only to dismiss that clearly flawed suit, but then be able to use that information in later harassing actions and suits. The first suit should have never been allowed to proceed to expedited discovery, or if it did, the information gleaned should have been limited to use in that suit alone. While I’ve never seen that happen, at least here that first suit is counting for something against the RIAA.

Requiring that first suit to be dismissed WITH prejudice would be a good step towards ending this madness.

Depending on how you read this, EVERY RIAA case that is dismissed WITHOUT prejudice on the second, individually filed, case against a defendant would meet the Two Dismissals rule, effectively making the second case a dismissal WITH prejudice, and entitling the defendant to be considered the prevailing party – with all that entails.

Anonymous said...

Wouldn't this also apply to the case where the parent was at first sued, and upon discovery they filed suit against the child? If so, that would be 1) John Doe action to determine subscriber, 2) Initial action against parent, 3) Action against children. If Im counting correctly, as soon as they dismissed as to the parent, that rule said "Game Over".

If the Judge follows the plain language of the rules about both this matter and the invalid joinder issue, looks to me like they might have to file individual suits against the John Does in the first instance and to follow that case through to trial. Of course in many instances, they will have to have that case transferred to the proper venue of the Defendant, Im guessing that this type of action would not count as a strike.

By making them actually follow through with a "Full Court Press" case from the beginning this will actually work against the RIAA, especially in the College enviroment. I say that because odds are soon they will nail someone big and powerful, like the son/daughter of a Senator. Someone who might consider changing the law to allow the very conduct they complain of.....

Ray Beckerman said...

Dear Anonymous -M-,

I rejected your comment because a lot of your guesses were wrong, so that a reader not knowledgeable about these cases could easily be misled by them.

If you want to understand what the ex parte "John Doe" proceedings are, read here.

The RIAA has absolutely no more information when it brings the 'named defendant' case than it had when it brought the 'John Doe' case, except the name and address of 'John Doe'.

There is nothing whatsoever 'standard' about what the RIAA is doing. It is bizarre, and unlawful.

Sorry, I didn't understand the rest of your questions.