In a Massachusetts case, Warner Bros. Records v. Weiner, after the pro se defendant moved to dismiss for lack of personal jurisdiction, the plaintiffs have voluntarily dismissed without prejudice.
Notice of Voluntary Dismissal Without Prejudice
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Friday, May 08, 2009
Warner Bros. Records v. Weiner is voluntarily dismissed after pro se defendant movest to dismiss for lack of personal jurisdiction
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30 comments:
Is this Good?
Bad?
Or just.. postponing the inevitable extortion to come?
It's inevitably bad for the putative defendant. All it means is that the complaint will be refiled in a jurisdiction that does have personal jurisdiction over him or her.
Sebastien: The old location was presumably highly impractical for defendant. So the result is good for defendant. It doesn't stop plaintiffs from bringing legal action in a more suitable venue, though.
XYZZY
now wait a minute!
Unless Defendant Weiner personaly called the RIAA and told them that IP nnn.nnn.nnn.nnn was used by this defendant, there was already 1 (one) case where Weiner was Doe Number X.
Once Plaintiffs got the Data from ISP that Doe Number X's Internet protocol address nnn.nnn.nnn.nnn is defendant Weiner Plaintiffs did no longer pursued that doe case -> Dropping of lawsuit number one that was.
Now lawsuit 2 were it was "Defendant Weiner with IP nnn.nnn.nnn.nnn at tt:tt:tt" instead of Doe Number N with IP nnn.nnn.nnn.nnn at tt:tt:tt in the previous case is dropped too!
That's already 2 lawsuits against Defendant Weiner for the alleged same alleged wrongdoings.
And now maybe even a third one before yet another court?
I thought you have laws against such stuff?!
Alter_Fritz:
It seems that plaintiffs can only voluntarily dismiss twice, after which they can no longer bring a case. In this case, defendant moved for dismissal.
http://www.law.cornell.edu/rules/frcp/Rule41.htm
XYZZY
XYZZY
ja, I noticed that defendant moved here,
but it was not the court that acted upon her move and not a judge that ordered the dismissal for lack of personal jurisdiction.
It was Plaintiffs that said we throw the towel a second time.
that must be a different situation then it would be when the court had ordered the dismissal, must it not?
If not, then it would mean, that defendants would hurt them self if they would move for dismissals them self to force the Plaintiffs to do something indirectly by "threatening" them that a judge might do something that would hurt their modus operandi, would it not?
xyzzy -
if (and I do mean, if) I'm reading it right, plaintiffs brought suit against defendant
1 - as an unnamed doe defendant with ip address of (number)
plaintiffs dismissed voluntarily as to doe with ip addresss of (number) having obtained defendant's name by discovery [their usual methods]
2 - as a named defendant weiner with ip address of (number)
defendant weiner filed a response for the limited purpose of opposing personal jurisdiction (is that the right term of art here?)
defendants voluntarily dismissed as to named defendant weiner.
Dollars to doughnuts, plaintiffs are liable to file the same or similar case in the proper district. I seriously doubt they're liable to back down and walk away now. They've too much time invested.
It's an open question in the back of my mind whether defendant can claim 2 dismissals since one of those suits was against a john/jane doe.
Ray, what is your opinion on that and whether a voluntary dismissal for improper venue/lack of jurisdiction would serve to impeach plaintiffs case. My thinking is, if the plaintiffs didn't make the effort to get the right address, then how accurate is the rest of the information contained in their complaint.
-quiet lurker
Ray, what is your opinion on that and whether a voluntary dismissal for improper venue/lack of jurisdiction would serve to impeach plaintiffs case. My thinking is, if the plaintiffs didn't make the effort to get the right address, then how accurate is the rest of the information contained in their complaint.1. There is no such thing as a voluntary dismissal for improper venue/lack of jurisdiction. There is only a voluntary dismissal.
2. The law is that a second voluntary dismissal operates as an adjudication on the merits.
3. This is the second voluntary dismissal.
4. In my opinion, any third action is barred. (But see Interscope v. Kimmel which ruled otherwise but gives no hint of the Court's reasoning. In my opinion Kimmel was incorrectly decided.)
5. A lawyer has a duty to bring an action in a court which has jurisdiction.
I stand corrected.
XYZZY
Comment rejected. Factually & legally incorrect, also probable troll.
1. There is no such thing as a voluntary dismissal for improper venue/lack of jurisdiction. There is only a voluntary dismissal.As do I.
-Quiet Lurker
I rejected a second anonymous comment from the RIAA troll, this one asking me to produce "binding authority" for my opinion that the third action is barred.
He or she is clearly an RIAA lawyer because he or she knew that a third action is being filed, and knew where it is being filed.
The "binding authority" is of course Fed. R. Civ. P. 41.
The only decision I know of on the subject is Interscope v. Kimmel, which I mentioned in my earlier comment, which gave no reason for its decision, and which -- in my professional opinion -- was incorrectly decided.
The troll predicts that he will have no trouble getting his new case filed in Virginia.
Which is of course true unless defendant were one of the lucky few who might be able to obtain suitable legal representation.
Ray said that the "RIAA-Troll" claimed he will have no problems to file a new case and Ray conceded to that statement mentioning that this could be correct if defendant has no legal representation.
Can this be correct? Someone mentioned to me sometime back, before the law everybody is equal and...
...well, Sara had her courtpaper(*) faxed from a guy whose faxmachine identification stated:
STEVEN R WEINER,ESQUIRE FAX NO: 4137322946I guess it's a relative of her, so I shouldn't be too hard for one of the readers of this blog who has a line in the US to dial this faxnumber and give him a hint regarding the respective FRCP rule (like xyzzy did for me and where I seems to be even smarter then the from Ray alleged RIAA lawyer troll since I had seen the controlling authority on first glance: But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.)
Sara should be able to cite the rules even as a pro se defendant to the court in Virginia. And unless the courts in the state mentioned are not fair and not law abiding just because someone comes pro se then this should be working
(*)
http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/warner_weiner_090501DeftsMotDismiss.pdf
hth
--
A_F
As Mr. Kimmel's attorney, I might add to Ray's comment about the Kimmel case that there were actually FOUR cases brought against my client, in three different district courts, and yet the judge refused to dismiss the fourth one. He basically said that we had waited too long, but of course Rule 41 says nothing about when the motion to dismiss need be brought...and four is more than three...
To add insult to injury, the judge had directed the lawyers to come to Albany for oral argument (me from New York City, Reynolds from Colorado), and after letting us talk, read his already-written decision into the record in front of us.
A_F, the law doesn't exist in a vacuum; rights have to be enforced. It is very difficult for a non-lawyer to oppose an adversary represented by counsel, even disreputable counsel like the type the RIAA dredges up (including the coward who keeps posting anonymous trolls here).
Richard, thanks for giving us some more detail. It was quite evident that the judge in Kimmel was not giving defendant a fair shake.
They are clearly playing games in this case, as they served the Defendant in VA a case in MA, which we all know is clearly wrong. The process server was sent to VA with that paper, and the lawyers involved in this case clearly knew it. Isnt that grounds for a sanction, as they KNEW the Defendant was NOT residing in MA. Of course they could have dismissed prior to service, and the Defendant might not have ever known..... Or maybe they hoped the Defendant would not know of their right to be heard in the district of their residence, or that they would get another default in their cap.
Another bit of info from the motion: Prior to living in Virginia, Defendant lived in New Hampshire. Thus, this case NEVER should have filed in MA, since she never lived there.
Hopefully by now someone has faxed the rule 41 rule to that number. A link to this discussion would also be useful.
A properly formatted motion to dismiss for rule 41, citing the case numbers from the earlier 2 cases, and maybe the two vol. dismissal motions attached thereto would go a long way to maybe getting that Court to do the right thing.
Ray, do you have a copy of the complaint for the case just dismissed in MA, and can you put it up? It would be useful to determine who the ISP was, and identifying the style and case number of the first John Doe Case. Or maybe someone here knows that info? A copy of the original John Doe case with date, time and IP address that matches the second case would go a long way to establishing she was in fact sued as a Doe.
As someone in the US, I would be glad to fax the Defendant with all the needed info once we can assemble it here....
I do hate bullies. I also hate those who skirt the Court rules that require 1 defendant = 1 lawsuit and not multiples.
Since Ray, you have been checking around, I wonder have they filed any multiple doe suits in that district in Texas? Would love to see them get busted...
Of course we all know if they had followed the rules, they would not be having this problem. We also know it would greatly increase their expense, as I doubt they actually file case #2 against anyone but a small percentage of people.
Albert
Albert, I'm not at liberty to do what you're asking.
Ray,
I have a copy of the PDF complaint from Pacer of 12/10/2008 if you want a copy.
The IP in question is a class B beginning with 129.64, which is Brandeis University.
The date/time alleged is May 21, 2007 at 1:21:05 EDT. and they claim Gnutella
The FIRST lawsuit was filed against her on 01/30/2008 in the District of Mass, case # 1-08cv10139. She was Doe # 3
The SECOND lawsuit was also filed in the District of Mass., Case # 1-08cv12046. She was named in this case. The time/date/ip address match to the second the time/date/ip of the First (Doe) suit.
The Plaintiffs have voluntarily dismissed both the FIRST and SECOND lawsuit. That second dismissal under the rule acts as a final, and they cannot file again in Virginia in accordance with that rule.
They HAVE had their 2 bytes of the apple like we all suspected.
Since Ray could not post the complaint, I looked it up on Pacer, and obtained the IP address. Looking at the correct date range, checked all doe cases and looked at the exhibit "A" for any of them that had all the record plaintiffs listed in this case. I skipped any that were missing the plaintiffs in this case.
During my research, I discovered between 6/14/2007 and 1/30/08, not only Brandeis was targeted, but also MIT, Tufts, Boston College, Boston University, in many cases more than once. Since Brandeis never seemed to have very many Does, I did not download a couple of the lists that had 20 and 27 pages each, since Pacer charges per page. Thus I do not know who those cases were directed at.
Clearly they have been outed in this case.
Hopefully the Defendant knows of this blog, or otherwise knows what to do if they refile the case. As of today, it has NOT been filed in the Eastern District of Virginia.
Maybe a friendly phone call would be in order.... :)
Albert
Albert, I can post the complaint if you like. Just email it to me.
I rejected a third comment from the troll, who angrily, albeit illogically, argues that the RIAA should be able to file a third action.
His, her, or (more likely) its, main argument is that the plain meaning of the Rule needn't be followed since the 1st Circuit -- in SONY v. Tenenbaum -- refused to apply the plain meaning of the District Court rule.
I.e., the troll is arguing that judges should disregard the plain meaning of rules, and that the rule itself is not "binding authority".
There is only one class of person ignorant enough to make such an argument.
Well, my reading of the districts seems to say that Virgina is in district 4, not district 1, thus that troll is wrong again. Of course plain reading of the rule is important. Also, I do not think a district 4 court will find that district 1 decision binding....
Maybe the troll is the VA council, doesn't HRO hire local ones to take care of each case? It is not our fault that their case is sunk before it is even given to them.
We are just reporting on the state of events and the rule, which clearly tell anyone that can read plain english that another case is NOT going to fly...
Albert
In the future, please either post my comments, or reject them without commentary. It's highly unprofessional to not only distort arguments through paraphrase merely to suit your agenda, but also to manipulate your users by presenting statements, regardless whether you agree with them, taken wholly out of context.
Above comment appears to be from the same anonymous troll.
Dear anonymous cowardly troll, please in future identify yourself instead of hiding behind the cloak of anonymity to spread your disinformation.
Dear anonymous cowardly troll, please reread our comment policies, especially 3, 4, and 8.
Do you get it now?
There are enough places on the internet where fakes can spread disinformation; this is not one of them.
For the benefit of my readers, and not for the benefit of the troll, I am going to here repeat verbatim in italics the troll's moronic observations.
I recall that you also believed the binding rule in Tenenbaum's case allowed for broadcasting, and look how that turned out. This is the troll's comment on my statement that the plain meaning of the rule should control. Sounds like a brilliant argument.
The fact is that there is not a single case or piece of scholarship that you can point to that applies Rule 41 where the initial filing is a John Doe discovery action, therefore your opinion is just that.According to the court papers signed under penalty of perjury and under constraint of Rule 11, the John Doe action was a copyright infringement action. It was not a "discovery action". Any lawyer who knows the law knows that there is no such thing as a "discovery action" in federal practice. Accordingly, there are 2 possibilities: either (1) it was a copyright infringement action, or (2) it was a discovery action, in which case a number of lawyers deliberately lied in their court papers hundreds and hundreds of times. So my question to the troll is: on what basis do you allege that they were "discovery" actions? Are you one of the people who defrauded the Courts?
And yes my "opinion" is "just that". I specifically said it was my "opinion", and said it not once but twice. Here's what I wrote in my earlier comment: "In my opinion, any third action is barred. (But see Interscope v. Kimmel which ruled otherwise but gives no hint of the Court's reasoning. In my opinion Kimmel was incorrectly decided.)" So your revelation that it was an "opinion" is just brilliant.
And the one court that ruled on the matter, regardless of the brevity of the order, disagreed with you (no surprises there either).No kidding. I'm the one that mentioned that decision, so why are you repeating what I've already said?
The policies underlying the Rules of Civil Procedure simply don't comport with your positionWhich policies are those that encourage plaintiffs to repeatedly file cases without bothering to find out if they have a case or if the Court in which they are bringing suit does or does not have jurisdiction?
no rational judge is going to throw a case out because the plaintiff has to amend the address after their first named filing. There was no amendment of an address. Why are you lying? [Oh I just remembered why you are lying? You are an RIAA troll, and lying is the only thing you know how to do.]
One important reason for me not to post comments from RIAA trolls like that is time. I really don't have time to correct all their lies; they can tell 2 or 3 lies in a single sentence. They are the masters of falsehood.
There are established procedures by which a plaintiff may ask for a transfer to a court of competent jurisdiction, right?
When a plaintiff hits the "reset button" and files a new case every time there's a problem with the old case, it looks like corner-cutting and disrespect for due process to me. Precisely what the two-dismissal rule was intended to address.
My distinct impression is that they deliberately bring the first action without regard to jurisdiction; they do not want the John Does defending the case. They want to make defense as inconvenient as humanly possible.
You can tell from the IP address which state it's in, and which region of the state... so it would be an easy matter for the initial John Doe case to be brought where the alleged 'infringer' lives.
In regard to IP addresses, there is a registration center for each part of the world, where the contact information for the person responsible for registering a range of IP addresses is publically available thru a server called a "whois" server.
In our part of the world, arin.net is in charge. However, the contact info in whois is JUST the administrative contact info, it is NOT required to reflect geography in any way.
An extreme example from my past: I used to work for Philips, which is a worldwide company with their headquarters in Netherlands. If the IP's we used in the US, which were part of the total IP range issued to the company worldwide were checked, they would have shown Netherlands. Thus, anyone who did use the IP's to download music would have very likely got a free pass from RIAA, because they would have thought they were overseas.
In the case here, looking up the info for the IP shows Brandeis University. Since all their locations are in one district, someone could assume they must be there.
Even in the University case, this is not always true. An example would be University of Phoenix. They also have a campus in Orlando FL. So, knowing it was University of Phoenix cannot pin-point where the computer with that IP address is.
Even in my own case, looking up my IP whould show an ISP in the Southern district of my state, but I am actually in the Central District.
Other information, such as locators in some ISP's Reverse DNS address can sometimes pinpoint the IP location a little closer. As an example, the reverse for Bellsouth has the 3 letter Airport Code for where it is located. A traceroute also might reveal the reverse DNS names for routers along the way, giving some clues as well
Without inside information from the ARIN listed contact, there is no way to pinpoint the exact location of an IP. A good guess can be made most of the time, and in the case here, there is NO excuse as they SENT that process server to the address in VA with the MA process.
I suggest that the venue chosen is most likely the location of the ARIN contact, or the corporate contact for the company listed in the ARIN record. This is because Boston College, who refused to honor process issued by the DC Court, and got a MA judge to quash it. They were then forced to file in MA. By starting at the ISP contact's district, they can be assured that the ISP cannot get it quashed. I dont think they care about the Defendant, as even after they find out where the Defendant is, they never seem to serve them with the original Doe suit......
Albert
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