Thursday, April 17, 2008

RIAA sues homeless man; makes 'sewer service'; Magistrate recommends Rule 11 sanctions; Judge says no but denies default judgment

In Warner v. Berry, where the RIAA was suing a man who lives in a homeless shelter, the Magistrate Judge -- Hon. Kevin Nathaniel Fox -- recommended that the plaintiffs' application for a default judgment be denied, and that the plaintiffs be ordered to show cause why they should not be sanctioned under Rule 11. The Judge agreed that the default judgment should be denied, but chose not to sanction plaintiffs' attorneys.

The facts were as follows:

On April 9, 2007, the RIAA's process server had posted a copy of the summons and complaint on the door of the defendant's apartment, which the RIAA knew was not a good address.

On April 17, 2007, the plaintiffs requested a 60-day adjournment of a scheduled conference because their "attempts at service at Defendant's last-known address were
unsuccessful."Plaintiffs stated they were "now conducting a thorough address
investigation to locate a current address at which to serve Defendant before the
June 13, 2007 service deadline."

On April 25, 2007, Plaintiffs' process server executed an affidavit of service,
declaring that on April 9, 2007, at 3:50 p.m., she posted the summons by affixing
one copy "in a conspicuous place on the property known as: 1713 Adee Ave Apt. 1
Bronx, N.Y. 10469", which was the address they knew was a bad address.

Meanwhile, Magistrate Judge Fox observed that at the time of Plaintiffs' April 17, 2007, letter to this Court, which sought an adjournment of the pretrial conference so
that Plaintiffs could locate Defendant's current address, Plaintiffs "had already
resorted to the 'affix and mail' method of service because they affixed the
summons to the defendant's last known residence on April 9, 2007."

The Magistrate Judge found that "[b]y affixing the summons on April 9, 2007, the
plaintiffs demonstrated they never intended to conduct 'a thorough address
investigation ...' because they employed the 'affix and mail' method of service
without exercising due diligence to effect personal service pursuant to CPLR s
308(1) and (2)." Magistrate Judge Fox concluded that Plaintiffs' representation
to this Court to the effect that they intended to conduct an investigation to
locate Defendant's current address implicated Fed.R.Civ.P. 11(b) because it was
made for the improper purpose of unnecessary delay.

District Judge Harold Baer, Jr., agreed with the Magistrate in most respects, but declined to issue Rule 11 sanctions, because he felt the lawyers' misrepresentation was the result of sloppiness rather than an intention to mislead, "giving them as officers of the Court the benefit of the doubt":

While Plaintiffs' lawyers should be faulted for failing to keep closer tabs on
their process server and for failing to better supervise their paralegal, their
actions do not rise to the level of a Rule 11(b) violation. Plaintiffs' lawyers
might have been sloppy in their attempts to serve Defendant, but giving them as
officers of the Court the benefit of the doubt, all their representations to this
Court were, to the best of their knowledge, information and belief, not for the
improper purpose of unnecessary delay.

Opinion and Order denying default judgment* (2008 WL 1320969)

* Document published online at Internet Law & Regulation

Commentary & discussion:
The Inquirer
Ars Technica
Blogger News Network
Mangas Verdes (Spanish)


Keywords: 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


Anonymous said...

That's all the RIAA story is: Benefit of the doubt after benefit of the doubt after benefit of the doubt. All this after Lies to the court after lies to the court after lies to the court. And never any sanctions to encourage them to clean up their act.


raybeckerman said...

Flurry of comments rejected for assortment of reasons.

Reluctant Raconteur said...

One advantage of being in so many different courtrooms, nobody develops a sense of history with the plaintiffs, unlike followers of this blog, who would understand that the events here are entirely consistent with the RIAA modus operandi.

Can't let the fact that the defendant no longer has an ISP account, a computer or for that matter a home deter RIAA style justice.

Ray, I get the impression that section 11 sanctions are in fact very rare. Are there any statistics?

raybeckerman said...

Dear russell

Rule 11 sanctions are very rare.

However with judges starting to mention them in connection with the RIAA, and with the RIAA lawyers' constant daily violations of Rule 11, it's bound to start happening if it hasn't already.

Judge Kravchuk's recommendation in Arista v. Does 1-27 is still on the table, remember.

I think Magistrate Fox had it about right.

raybeckerman said...

By the way, Judge Baer gave them "the benefit of the doubt".

A couple of points about that:

1. He's not saying Magistrate Fox was wrong; he's just saying he'd like to give a different interpretation to the RIAA's misstep.

2. If he ever catches them again.... I wouldn't want to be in their shoes, because I don't think he's going to give them "the benefit of the doubt" a second time.

raybeckerman said...

Like, for instance.... what if they have another case before Judge Baer. And the complaint says they "detected an individual". And then one day the Judge comes across the sworn testimony of Dr. Doug Jacobson and of Jennifer Pariser admitting they didn't detect an individual.

I would not want to be in the shoes of the lawyer from Holmes Roberts & Owen or Robinson & Cole on the day that that happens.

Reluctant Raconteur said...


It seems to me that the only thing that has prevented sanctions so far is the fact that most of these judges have only one RIAA case in front of them.

I think it is a natural tendency to give warning before acting on a severe penalty like sanctions.

However, if the joinder issue can be agreed on as being unacceptable, and the RIAA decides to pursue the cases, it is only a matter of time before the hammer falls.

StephenH said...

I agree that one should not be able to serve someone at an address the plaintiffs know that a person no longer lives at. I beleive that if this is done intentionally, a default judgement should not be issued. Instead, judges should postpone the case until the person is served at their correct address. In this case, that address is a homeless shelter. I would penalize all plantiffs that if they intentionally serve someone at the wrong address more than three times for the same case, and the plantiffs knew it was wrong before they served them, the case should be dismissed with prejudice and no attorneys fees awarded.

Anonymous said...


You bring up a great point about no computer. How do you image a hard drive of a computer that no longer exists?

Or will the RIAA claim that he dumped the computer and went homeless only for spoilation of the evidence that would have convicted him, and therefore he's GUILTY!


Anonymous said...


From this side of the line, Rule 11 sanctions ought to be a lot more common than they are. If they were, lawyers in general might have to show more integrity than the general public often believes they do, and the public perception of lawyers and judges as an Old Boy's School only concerned in watching out for each other might improve.


Anonymous said...

Let me try this in the right place.

This is the second time this defendant has had his case dismissed without prejudice.

The first time was as a joined set of Does after his identity information was revealed to the RIAA goons.

The second time was just now here after a failure to serve him properly.

Isn't there a Two Strikes and You're Out rule to prevent endless harassment of a defendant by protecting against a constant stream of suits filed, and then dismissed? I'm sure I read something about that some months ago in anther RIAA instigated case.

And Ray, regarding your comment about the problem these plaintiffs would face if they ever try this in front of this same judge again, I'm far more doubtful than you are. Until the sanctions hammer does fall, and fall hard, I'm not ready to believe any of these judges are willing to rein in these plaintiff lawyers. YMMV.


Reluctant Raconteur said...


This seems to be like convicting someone of armed robbery based solely on the fact that the gun was registered to him. No other evidence (like him being present at the robbery)is necessary.

I didn't notice but do they claim that he 'continues to infringe'?

What I don't understand is the mentality that causes them to pursue hopeless cases like this.

If there are in fact millions of people who infringe using p2p, it should be relatively trivial to find someone else to go after.

Anonymous said...

I really enjoy the "blame the paralegal and process server" defense. Maybe the RIAA will continue to use this defense in Oregon.


Anonymous said...

russell, it's easy to explain the mentality that allows them to go after hopeless cases like this one:
no mentality.
In the RIAA's rush to pump out as many cases as possible, it looks like their cases are completely automated until the lawyer makes face-to-face contact with a judge or magistrate, and no real effort made to confirm anything until they are compelled to.

If you look at the trend, I believe you can see this is true. It also points to the proceedings opening with the lie that they have all the evidence to convict, which most people who read this blog believe anyways. With that kind of (illegal?) system in place, it explains their spamigation's often ridiculous targets. It also points to the fact that they haven't been doing any good faith investigation or submitting real, confirmed, admissible evidence.

To date, has anyone tried to point this out, successfully or otherwise? I can't recall attm...


Justin Olbrantz (Quantam) said...

The RIAA's entire strategy is based on trivial economics: they are trying to get the most bang (that is, to generate the most fear of using P2P) for their buck. This requires cutting every corner possible. Not caring whether they are suing the right person, and operating under the assumption of guilty until proven innocent, cuts down on investigation costs. Suing preferentially those who don't have the financial means to defend themselves in court cuts down on attorney costs. Not following various laws cuts down on all sorts of things, such as licensing costs.

The record labels have been pinching every penny they give to artists, while insisting that they themselves get every penny they don't deserve. It's no surprise that their legal strategy is also constructed around similar principles.

Anonymous said...

Can't say i disagree with any of you, the RIAA is seriously going to far by trying to pull this stuff right in front of the judges' eyes. The courts should definetly bring section 11 down on the RIAA, maybe that will slow down their harassment of these individuals.

From a somewhat more emotional standpoint, sueing a homeless man? Not only is that coldhearted to an extreme but, if this were made more known, how would the public,especially internet culture, react to this? This could be a catastrophe waiting to happen for the RIAA.

I'll see what I can do to circulate this news a little bit.