You are on page 1of 11

Case 1:11-cv-23035-DLG Document 41 Entered on FLSD Docket 03/22/2012 Page 1 of 11

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO 11-23035 GRAHAM/GOODMAN BOY RACER, INC., a foreign corporation Plaintiff, v. JOHN DOES 1-34, Defendants. __________________________________/ DOE 32S RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR SANCTIONS [D.E. 36] Defendant, John Doe #32, identified in the Complaint as IP Address 98.254.35.208 (Doe 32), through counsel, files this Response in Opposition to Plaintiffs Motion for Sanctions Under the Inherent Power of this Court1 [D.E. 36], and states: INTRODUCTION Plaintiffs request for this court to invoke its inherent power and impose sanctions for Doe 32s Notice of Filing Admission of Plaintiffs Counsel2 [D.E. 32] that placed Plaintiffs counsels sworn declaration3 in a federal court in California into this case is baseless, improper and must be denied. Plaintiffs desire to limit the information provided to this Court that is highly relevant to the nature of these proceedings is suspect. Indeed, the Prenda Declaration was submitted by Plaintiffs counsel in response to another federal District Courts order to Plaintiffs counsel to disclose the number of anonymous defendants it served in over one hundred other pending copyright infringement cases. Notably, Prendas Declaration included this action. [D.E. 32-1 at 6]. Doe 32s filing of Prendas Declaration to support the need for protection in this The Motion for Sanctions will be referred to as the Motion. The Notice of Filing is referred to as the Notice of Filing. 3 The Declaration is also referred to as Prendas Declaration or the Declaration.
2 GM 8695213v3 1

Case 1:11-cv-23035-DLG Document 41 Entered on FLSD Docket 03/22/2012 Page 2 of 11

copyright trolling action for potential unnamed defendants is relevant and appropriate. In no way does the act of filing a Declaration filed in another related federal court case serve as a predicate to satisfy Plaintiffs very high burden, including evidence of bad faith that is required to invoke the courts inherent powers. Therefore, Plaintiffs Motion for Sanctions must be denied. In addition to not meeting the required standards for a sanctions motion, Plaintiffs Motion fails to explain the following issues it suggests apply here: How is the Prenda Declaration, which lists this case by name and case number, unrelated to this case? The portion of the Notice of Filing that Plaintiff alleges is false? The portion of the Notice of Filing that Plaintiff alleges is misleading?

Instead, Plaintiffs Motion is simply an attempt to misdirect the Courts attention from Plaintiffs conduct in hopes that the substance of this action can remain, or be put back in the proverbial bag. Plaintiff does not offer any evidence to contradict or otherwise clarify Prendas Declaration. The fact remains that Plaintiffs counsel is also attorney of record for the 118 cases that are listed in Prendas Declaration. Plaintiffs counsel admitted that in the cases it listed in its Declaration4, the Plaintiff failed to serve the defendants by the date of the Declaration. [D.E. 321 at 9]. The Notice of Filing brought this admission to the attention of this Court and cannot be used to support an improper Motion for Sanctions. In addition, Doe 32 should be awarded its attorneys fees and the expenses associated with the defense of Plaintiffs baseless Motion. BACKGROUND FACTS Plaintiffs Motion is replete with incomplete and incorrect facts. Initially, Plaintiff never explains how the Prenda Declaration is unrelated to the present case; particularly when this case is specifically listed on page 6 of the Declaration. Plaintiff further fails to discuss how the Notice of Filing Admission of Plaintiffs Counsel is blatantly false or misleading to this Court.
4

The earliest case listed in the Prenda Declaration was filed on September 2, 2010. The most recent case listed was filed on January 30, 2012. [D.E. 32-1 at 5, 7]. 2
GM 8695213v3

Case 1:11-cv-23035-DLG Document 41 Entered on FLSD Docket 03/22/2012 Page 3 of 11

Also, Plaintiff misquotes both (i) its own Declaration and, (ii) the one sentence in the Notice of Filing that Plaintiff seems to have found so objectionable. Finally, Plaintiff multiplies its errors with the references contained in footnote one of its Motion because three of the four cases identified in footnote one were not listed in the Prenda Declaration and each is distinguishable from the instant action. A. Plaintiff misquotes itself and the Notice of Filing The crux of Plaintiffs Motion is that the Notice of Filing omitted a portion of the introductory sentence of paragraph 9 of Prendas Declaration. The material part of that introductory sentence is the second clause, which states our records indicate that no defendants have been served in the below-listed cases. [D.E. 32-1 9]. This admission is plain and simple. The final sentence of the Notice of Filing states, Prenda Law has affirmatively admitted it has not ever served a single defendant in any of the 118 pending copyright infringement lawsuits it has filed across the United States. [D.E. 32]. While the Notice of Filing did not directly quote Prendas Declaration (and did not purport to do so), the substance and meaning of Prendas Declaration remains unchanged by the description in the Notice of Filing. Specifically, as of the date of Prendas Declaration, none of the defendants, listed in paragraph 9 of the Declaration, in the 118 cases, which date back to September 2010, had been served. Ironically, Plaintiffs protest includes misquotes of both its own counsels Declaration and the Notice of Filing. The comparison of the actual sentences in the original documents and Plaintiffs quotation of these sentences in the Motion demonstrate Plaintiffs sheepish attempt to blur the facts for the Court in an attempt to make much ado about nothing. Same language misquoted by Plaintiff in the Motion for Sanctions our records indicate that no defendants have of all the cases filed, 118 of them do not have been served in the below-listed cases [D.E. an infringer named yet [D.E. 36 at 4]. 32-1 at 5]. Actual language of the Prenda Declaration 9 3
GM 8695213v3

Case 1:11-cv-23035-DLG Document 41 Entered on FLSD Docket 03/22/2012 Page 4 of 11

Similarly, Plaintiff misquotes the Notice of Filing in its Motion. Compare: As misquoted by Plaintiff in its Motion for Sanctions Prenda Law has affirmatively admitted it has all 118 cases ever filed by Plaintiffs counsel not ever served a single defendant in any of the do not have an infringer named. [D.E. 36 at 118 pending copyright infringement lawsuits it 4]. has filed across the United States. [D.E. 32]. Ultimately, Plaintiffs counsels admission to the Northern District of California speaks for itself. Neither the Motion nor the Notice of Filing can change Prendas admission and bringing that admission to the Courts attention does not support a motion for sanctions under any procedure. B. Defendant made no attempt to mislead the Court by filing Prendas Declaration The sole and proper purpose of filing Prendas Declaration was to apprise the Court of the existence of similar anonymous Doe defendant cases, Plaintiffs conduct in light of those other similar pending cases, and Plaintiffs previous representations to this Court that the purpose of its expedited discovery prior to the Rule 26(f) conference is to permit this case to proceed forward. Plaintiff made two statements to this effect in its memorandum in support of its Motion for Leave to Take Discovery Prior to Rule 26(f) Conference. [D.E. 4]. First, Plaintiff stated, the present lawsuit simply cannot proceed without discovering the identities of the Defendants. [D.E. 4-1 at 5]. Next, Plaintiff stated the purported goal of the expedited discovery is to name [the defendants] in this lawsuit. [D.E. 4-1 at 5] (emphasis added). In light of the numerous cases filed by Plaintiffs counsel, including other cases for this same Plaintiff, the Court should have all relevant information before it in order to evaluate the propriety of the Plaintiffs invasive discovery requests as Plaintiff is trolling for defendants to supposedly name in its cases. Plaintiffs assertion that the purpose of the Notice of Filing was to suggest that Plaintiffs counsel has never named and served an infringer in any of its cases nationwide is incorrect and 4
GM 8695213v3

Actual sentence in the Notice of Filing

Case 1:11-cv-23035-DLG Document 41 Entered on FLSD Docket 03/22/2012 Page 5 of 11

unsupported. [D.E. 36 at 2]. The Notice of Filing neither says nor implies such a conclusion. The actual Prenda Declaration was put before the Court so the Court could assess the Declaration in conjunction with the posture of this case. The Notice of Filing directed the Court to the portion of the Declaration that applies to the current stage of this matter, namely the present investigation into the Doe defendants and the status of similar investigations in other cases. C. The duty to identify blatantly false rests with the Plaintiff and its counsel. Plaintiff never explains how anything in the Notice of Filing is blatantly false. This is a puzzling statement by Plaintiff because the Declaration was made and filed in California by their counsel. If any falsity exists in Prendas Declaration, Prenda Law has the obligation to correct it. However, Prenda Law makes no attempt to correct the purported falsity or even explain what it is. Additionally, Plaintiff offers no evidence in support of its assertion that anything is blatantly false. There is nothing blatantly false in the Notice of Filing as the Notice of Filing was limited to the cases listed in Prendas Declaration. D. Prendas attempt to revise its sworn Declaration with distinguishable references in footnote one highlight the spurious nature of its Motion. The cases offered by the Plaintiff in footnote one of its Motion are distinguishable from this matter and should not be factored into the analysis of Plaintiffs Motion. In footnote one of the Motion [D.E. 36 at 3], Plaintiff claims that the cases referenced by Doe 32 in its Amended Motion to Quash [D.E. 26] contradict the information in Prendas Declaration in that they show that anonymous defendants have been identified in four copyright cases. However, each is a different type of case than the one pending before this Court as can be seen upon closer inspection of the four cases. Based on the dockets of each case, the first two cases, Achte/Neunte Boll Kino v. Michael Famula case number 11-0903 (N.D. Ill.) and Achte/Neunte Boll Kino v. Daniel Novello case 5
GM 8695213v3

Case 1:11-cv-23035-DLG Document 41 Entered on FLSD Docket 03/22/2012 Page 6 of 11

number 11-0898 (N.D. Ill.) are both original actions against an individual defendant and are not continuations of Doe defendant cases. More interestingly, neither the Famula nor the Novello case is part of the list provided in the Prenda Declaration. The third case, Boy Racer, Inc. v. Philip Williamson, case number 11-3072 (E.D. Cal.) is also an original lawsuit filed against an individual defendant that is not a continuation of an existing multiple Doe defendants case. Like Famula and Novello, Williamson is not listed in the Prenda Declaration. Copies of the docket for the Famula Novello, and Williamson cases are attached as Exhibit A. The final case identified in footnote 1 of the Motion, Hard Drive Productions, Inc. v. Syed Ahmed et al., case number 11-2828, (N.D. Ill.) is the only case that was continued from a multiple Doe defendants case. However, the cases docket does not show that the Clerk of the Court issued a summons to Syed Ahmed or that a return of service on Syed Ahmed was ever filed. Regardless, the Ahmed case was closed on February 15, 2012.5 Thus, the Notice of Filing Admission of Plaintiffs Counsel was and remains entirely accurate in its assertion that according to the Declaration no defendant had been served in the 118 pending cases that Prenda identified in its Declaration at the time the Notice of Filing was entered into this cases record. Plaintiffs triumphant allegation that one anonymous defendant was served in a Doe defendant proceeding is at best a pyrrhic victory. There are 118 cases listed in paragraph 9 of the Prenda Declaration. The total number of anonymous defendants in these cases is 15,944. Assuming Ahmed was in fact served, of which Plaintiff provided no proof, then the service rate on anonymous defendants would rise to 1 of 15,944 or .000062 of all anonymous defendants.

A copy of the Ahmed case docket is attached hereto as Exhibit B. 6

GM 8695213v3

Case 1:11-cv-23035-DLG Document 41 Entered on FLSD Docket 03/22/2012 Page 7 of 11

PROCEDURAL HISTORY OF THE MOTION FOR SANCTIONS On March 8, 2012, Joseph Perea, Esq., on behalf of Prenda Law, telephoned undersigned counsel. In this conversation, Attorney Perea demanded that the Notice of Filing [D.E. 32] be withdrawn within sixty minutes of the phone call or else a Motion for Sanctions would be filed. Undersigned counsel responded with a request for both the reason that the Notice of Filing should be withdrawn and the alleged legal basis for the sanctions. Attorney Perea only stated that the Courts inherent power would be invoked, but did not provide any explanation of the reasons why Prenda Laws own Declaration was false. Attorney Perea also did not explain what facts would demonstrate that the Notice of Filing was incorrect. Plaintiff made no further attempt to confer and sent no written request for retraction other than the Motion it filed approximately four hours after Attorney Pereas call. MEMORANDUM OF LAW There is no basis for the Court to impose any sanctions against Doe 32 or its attorneys in this case. The Notice of Filing was filed in good faith for a proper purpose and included copies of the original documents filed in response to another federal District Courts order. Doe 32 and its counsel made every attempt to put complete information before this Court. Any use of the Courts inherent power is extraordinary and absent proof of bad faith, the Court should not use its inherent power to strike the Notice of Filing or otherwise impose sanctions. 1. The Court should not exercise any inherent power to sanction. Any inherent power to sanction requires a finding of bad faith, which is absent in this case. Byrne v. Nezhat, 261 F.3d 1075, 1106 (11th Cir. 2001). Doe 32s filing of the Prenda Declaration was made in good faith. Plaintiffs bald assertion that the filing was made in bad faith lacks any supporting information to substantiate the allegation. Indeed, the Notice of Filing

7
GM 8695213v3

Case 1:11-cv-23035-DLG Document 41 Entered on FLSD Docket 03/22/2012 Page 8 of 11

did not attempt to color Prenda Laws admission in the Declaration. The Notice of Filing also did not address the question of whether or not alleged copyright infringers were ever named in any lawsuit. The material part of Prendas Declaration was the admission that no defendants have been served in the below-listed cases. [D.E. 32-1 at 9]. The strength of the courts inherent power requires that its exercise be made with restraint and discretion. Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991). The courts inherent power may be used in narrow circumstances to impose the sanction of attorneys fees. Id. at 45. However, Plaintiff neither suggests nor explains why sanctions would be appropriate in this case, particularly under the auspices of the Courts inherent powers. The Notice of Filing is completely distinct from the situation in Chambers where the defendants and counsel abused the entire judicial process with a series of meritless motions and pleadings and delaying actions. Id. at 38. Chambers expressly found that the District Courts exercise of its inherent power; as opposed to Rule 11, was appropriate because the defendant (1) attempted to deprive this Court of jurisdiction by acts of fraud, nearly all of which were performed outside the confines of this Court, (2) filed false and frivolous pleadings, and (3) attempted, by other tactics of delay, oppression, harassment and massive expense to reduce plaintiff to exhausted compliance. Id. at 41. The Motion makes no similar accusations against Doe 32 or its counsel, nor could it legitimately do so. Chambers noted that the courts use of its inherent power is particularly appropriate when the offending party has practiced fraud upon the court. Id. at 42. The filing of Prendas Declaration was not a fraud and there was no action or intent to deceive this Court. In contrast, the objective remains to inform the Court of the numerous cases filed across the United States by Prenda Law. The second objective is to inform the Court of the decisions made in other

8
GM 8695213v3

Case 1:11-cv-23035-DLG Document 41 Entered on FLSD Docket 03/22/2012 Page 9 of 11

jurisdictions on similar questions of law and fact that are now pending in this action. Additionally, Prendas Declaration and the Northern District of California Courts Order that directed the Declarations submission were attached to the Notice of Filing. The plain language of the Declaration was placed in the record for the express purpose of allowing the Court to review its content and decide how Prenda Laws representations in the Declaration supported or undermined the positions asserted in this action. Thus, there is no reason for the Court to exercise its inherent power to impose a sanction on Attorney Yolofsky, the Greenspoon Marder law firm or on Doe 32. The Court should not strike the Notice of Filing because it is the admission of a party opponent, it relates to the pending action, and is part of the record in another proceeding. 2. Plaintiff improperly circumvented Rule 11. Plaintiffs superficial pretext for invoking the Courts inherent powers is not excused by its abject disregard to even attempt to follow any portion of the requisite Rule 11 procedures, which were fully available to address any concerns of an allegedly improper filing. The Notice of Filing constitutes what is called an other paper under Rule 11(b). The Advisory Committees comments to the 1993 amendments to Rule 11 state that [t]he rule applies only to assertions contained in papers filed with or submitted to the court. However, Plaintiff supposedly opted not to proceed under Rule 11, even though it covers the conduct alleged to have been improper, because of the very specific safeguards in the time constraints associated with Rule 11s mandates. Moreover, if Rule 11 is appropriate to address the allegedly sanctionable conduct then the Court should rely on the Rules, not its inherent power. Chambers, 501 U.S. at 50. Despite its decision not to invoke the appropriate federal rules, Plaintiff and its counsel are still governed by those same procedural rules. Indeed, the Advisory Committees admonition to stop and think before making legal or factual contentions is particularly apt in this instance. The foregoing is

9
GM 8695213v3

Case 1:11-cv-23035-DLG Document 41 Entered on FLSD Docket 03/22/2012 Page 10 of 11

not provided to at all suggest that it would have been appropriate for Plaintiff to seek sanctions pursuant to Rule 11. Ultimately, there is no basis for any sanctions pursuant to either Rule 11 or this Courts inherent power. 3. The Court should award Doe 32 its attorneys fees and the expenses related to opposing Plaintiffs Motion for Sanctions. Rule 11(c)(2) permits the Court to award the prevailing party in a motion for sanctions its reasonable attorneys fees and expenses incurred for the motion. Hamm v. TBC Corp., 345 Fed. Appx. 406, 411 (11th Cir. 2009). Plaintiffs Motion has no support in either fact or law. The Motion never explains how the Notice of Filing was unrelated to this case, blatantly false, or misleading. Moreover, Plaintiff failed to adhere to the procedural requirements for a sanctions motion. Accordingly, Doe 32 should not bear the financial burden of Plaintiffs errant tactical decision to file its baseless and improper Motion. Thus, the Court should award Doe 32 the reasonable attorneys fees expended in the defense of Prenda laws Motion for Sanctions and both Plaintiff and its counsel should be liable for the payment of Doe 32s attorneys fees and expenses. Fed. R. Civ. P. 11(c)(1). CONCLUSION Plaintiffs Motion should be denied because there is no basis for the Court to impose any sanction on Doe 32 or its attorneys. The Notice of Filing presented to the Court a sworn document filed by Plaintiffs counsel in response to another federal District Courts order to disclose the number of defendants served by Plaintiffs counsel in pending anonymous infringement cases. The Notice of Filing was made in good faith and for a proper purpose. Plaintiff should never have filed its baseless Motion. Thus, the Court should deny the Motion and award Doe 32 its reasonable attorneys fees and the expenses associated with the defense of this meritless motion. 10
GM 8695213v3

Case 1:11-cv-23035-DLG Document 41 Entered on FLSD Docket 03/22/2012 Page 11 of 11

Dated: March 22, 2012

Respectfully submitted, By: /s/ A. J. Yolofsky___________ Joseph A. Yolofsky Florida Bar No. 911321 aj.yolofsky@gmlaw.com GREENSPOON MARDER, P.A. 200 East Broward Blvd. Suite 1500 Fort Lauderdale, Florida 33301 (954)527-2477; (954)333-4077 Attorneys for Defendant, Doe #32

CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on March 22, 2012 we electronically filed a true and correct copy of the foregoing Response in Opposition to Plaintiffs Motion for Sanctions Under the Inherent Power of this Court with the Clerk of Court using CM/ECF. We also certify that the foregoing document is being served this day on all counsel of record via transmission of Notice of Electronic Filing generated by CM/ECF.

By: /s/ A. J. Yolofsky___________ Joseph A. Yolofsky Florida Bar No. 911321 aj.yolofsky@gmlaw.com GREENSPOON MARDER, P.A. 200 E. Broward Blvd., 15th Floor Fort Lauderdale, Florida 33301 (954)527-2477; (954)333-4077 Attorneys for Defendant Doe 32

11
GM 8695213v3

You might also like