Wednesday, October 25, 2006

RIAA and Tallie Stubbs Battle it Out in Oklahoma; RIAA Trying to Withdraw "Without Prejudice" So it Won't be Liable for Attorneys Fees

An interesting battle is going on in Oklahoma in Warner v. Stubbs.

Regular readers may recall that in Capitol Records v. Foster, the judge held that the RIAA's discontinuance of the lawsuit "with prejudice" was the same as a win for the defendant, and made her a "prevailing party" eligible for attorneys fees.

When they ran into Marilyn Barringer-Thomson, the same lawyer who was representing Debby Foster, in their next go-round, the Stubbs case, they immediately sought to discontinue the case. In one part of the motion they said it was "with prejudice"; in another part they said "without prejudice".

Apparently mindful that discontinuing "with prejudice" could subject them to liability for attorneys fees in the Stubbs case, they quickly sought to correct their motion to say "without prejudice", and the judge allowed them to make that correction:

Order permitting correction.

Ms. Barringer-Thompson opposes that, saying the RIAA's motion, saying the dismissal has to be "with prejudice".

Here are some of the latest salvoes fired in that ongoing skirmish (the terminonology used in these Oklahoma cases is different than that used by New York lawyers such as myself, so I apologize if I've incorrectly named some or all of the document):

October 1, 2006, Defendant's Objection to Plaintiffs' Reply*
October 10, 2006, Plaintiffs' Response to Defendant's Objection*
October 24, 2006, Defendant's Reply to Plaintiffs' Response*

* Document published online at Internet Law & Regulation

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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


Vikas said...

As I understand it, the RIAA is seeking dismissal under a court order and therefore not under the provisions of FRCP R.41(a)(1).

Under Rule 41(a)(2), the dismissal under a court order will be "upon such terms and conditions as the court deems proper." Courts usually allow dismissal without imposing conditions unless defendant has suffered prejudice. (Moore's Federal Prac. Para 41.10). The prospect of having to defend suit in another forum is not prejudice. How would you say your client, the defendant, has suffered prejudice and consequently that the court should only dismiss with prejudice?

Alter_Fritz said...

Vikas you ask at the wrong place!
Ask Marilyn D. Barringer-Thomson, she's the defendant counsel in the case at issue!

karson said...


You posted some documents that I gathered before (I was that poster in the Ars forums; I didn't realize they were popular till I checked the server logs) -- and I retrieved a few more documents for you concerning this case.

The plaintiffs filed their motion as one "Without Prejudice" (as the title of the motion indicates), however they made a typo in their prayer claiming that it was "with prejudice."

The judge corrected this mistake in her order granting the motion.

This is Stubbs' answer which scared the RIAA into filing their motion the next day. There where 4 exhibits attached (I only grabbed one):

Exhibit 1: Holmes Roberts & Owens 6-21-06 letter to Tallie Stubbs - 3 pages

Exhibit 2: Tallie Stubbs' 7-7-06 written response to Holmes Owens & Roberts - 5 pages

Exhibit 3: Declaration of Tallie Stubbs - 3 pages

Exhibit 4: Amici Brief in Capital Records v. Foster, Case No. 04-1569-W filed 8-1 - 20 pages

Simon Barrett said...

Hi there, I just discovered your fine site. I have been watching, and writing the occasional article about RIAA. I do not have the depth of knowlege, nor the dedication that you obviously have, but you might get a chuckle at my lastest offering on this subject.

keep up the good work!

Alter_Fritz said...

could you please be so kind and grab also the Tallie Stubbs letter written to the RIAA-lawfirm?
IMO what was answered to them in the first place might be interesting for other innocent defendants that battle against the RIAA in your courts.

raybeckerman said...

Dear "karson":

Good work.

Thanks very much.

Best regards,


karson said...

As requested, Exhibit 2. Her letter is only 1/2 a page -- the rest is the certified e-mail receipt and a copy of the e-mail sent.

Alter_Fritz said...

thanks karson
I would say this is very easy to understand english what tallie wrote there.
If I can, then a native english speaking RIAA-Lawyer should also be able to understand these easy english words of her!

My unimportant opinion is that the RIAA should not be let off the hooks now without having them payed the defendants costs. Maybe even the RIAA lawyer that wrote the Demanding letter should be liable with his own personal income? :-P