As some of you may know, the Federal Rules of Civil Procedure mandate that a second voluntary dismissal, regardless of whether the plaintiffs denominate it as "without prejudice", operates as an "adjudication on the merits".
In all of the known cases, the RIAA's litigation process starts out with a "copyright infringement" against the defendants, naming them as "Does".
Almost all of those "Doe" cases are voluntarily dismissed by the RIAA.
Then a second action is brought against "Doe" in his or her name (the "named defendant action").
In my professional opinion, if the named defendant action is voluntarily dismissed, that dismissal operates as an adjudication on the merits. The RIAA ignores this principle, and commences a third action.
Only one defendant is known to have challenged such a third "bite at the apple". The defendant in Interscope Records v. Kimmel, where the new action was actually a fourth "bite at the apple". The judge, in a cryptic order, rejected the defendant's challenge, without explaining why.
Nevertheless, Fed. R. Civ. P. 41 is quite unambiguous, and should bar any third action.
In Warner Bros. Records v. Weiner, where the named defendant action was voluntarily dismissed, after the pro se defendant had moved to dismiss for lack of jurisdiction, we have been advised by an anonymous, pro-RIAA "troll" attempting to post disinformation to the comments section of our original post on the second voluntary dismissal, that the plaintiffs are indeed planning to file a third action, this time in Virginia. (The first 2 actions were in Massachusetts).
One of our faithful readers has been kind enough to go into PACER and retrieve the complaints in Action Number One against Sara Weiner and in Action Number Two against Sara Weiner.
Let's hope Sara, or an attorney representing her if she is fortunate enough to obtain legal representation, gets a hold of these earlier complaints and brings them to the attention of the court in Virginia.
Complaint in Action Number 1
Exhibit A
Complaint in Action Number 2
[Ed. note. The RIAA may argue that the "Doe" action wasn't really a copyright infringement action, it was a "discovery action". But that would mean that their attorneys would have had to have lied to the Court in the first action, and we know they would never do that. -R.B.]
Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player
Friday, May 15, 2009
First 2 complaints against Sara Weiner now available online, Warner Bros. Records v. Weiner
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8 comments:
A student would likely fail civ pro if he/she thought the pleading and discovery stage were synonymous. While they are related, a complaint is NOT a discovery action. What a joke!
The Doe dismissal is a very interesting issue though. Aren't defendants typically referenced at some point as Doe #X in the following action? If so, I'd say it is clearly a second dismissal - adjudication on the merits.
-B
B:
In #2, there is no mention of "Doe #X". The plaintiffs make use of passive voice ("was identified") to avoid the issue.
I'm interested to see if plaintiffs will ever be in a position where they have to argue that Weiner is not Doe. In this case, as in Kimmel, we can't help but wonder, "If Defendant isn't Doe, who the heck is?"
XYZZY
Perhaps I should have examined the documents closer before posting.
Doe is never identified by "doe" in the second complaint, but there is a link created by identifying Does by IP address.
-B
xyzzy -
I'm not sure they would even make the attempt.
My read of it is, if they ever did argue that named defendant Weiner was not doe #x, then (and Ray, please correct me if I'm wrong on this point) whatever strength their evidence might have had in first place, because a mis-identification should (at least in my non-professional opinion) serve to impeach their case in toto because they've got the wrong defendant.
-Quiet Lurker
[..]we know they would never do that.[i.e. lying to a court of law]-R.B.
You must be new here!
--
A_F
*SCNR*
I can't wait to see this play out here in my native Virginia. Our courts are notorious for not tolerating shenanigans.
@anonymous
so I guess you already faxed a notice about this post here on RIvTP to STEVEN R WEINER,ESQUIRE FAX NO: 4137322946 from where Sara Weiner had her court papers faxed in the second action?
I tried but my german mailprovider's "email to fax service" seems to work unfortunately only on national numbers, not on international Numbers. :-(
"Discovery action?" DMCA 512(h), which authorized pre-litigation subpoenas to identify alleged infringers, was struck down as unconstitutional years ago (RIAA v. Verizon (2003)). So a federal lawsuit is a federal lawsuit, no matter how much a plaintiff still wishes it were an extrajudicial DMCA 512(h) subpoena request.
If anyone should be offended by a plaintiff who regards the court as a cut-rate 512(h) subpoena mill while also wielding the court as an oppose-everything-then-dismiss-at-the-last-minute cost bludgeon against defendants who don't settle, it should be the judges. The courts exist to make whole deserving parties, not to enrich parties that game the system.
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