An Ohio Judge Timothy Black clearly understands the shakedown nature of the Malibu Media/XArt pornotrolling cases, and he is irritated. Judge Black admonished the troll on more than one occasionin the past, and I find it astonishing that Malibu’s local, telephonophob Yousef Faroniya, and hispuppeteers in Miami continue playing games with this judge.
Today Judge Black issued orders to show cause in two Malibu Media v. Doe cases assigned to him (OHSD 14-cv-00707 and 14-cv-00718). This is the third OSC in each case. The first one was about Malibu not serving the defendants timely. The second OSC dealt with Malibu’s delay to apply for entry of default. And the third one was issued today — to show cause why these two cases shouldn’t be dismissed for failure to timely move for default judgement — despite explicit orders to file such motions within 21 days.
Judge’s patience is surprising, borderline frustrating, but as we read past the first three pages, it becomes clear that his patience is so thin that the next violation, no matter how small, will be disastrous for Faroniya and Lipscomb. What started as a narrow, case-related stuff, developed into a holistic, damning description of the troll’s modus operandi:
The Court does not view Malibu Media’s conduct in this action in isolation. Rather, the Court views it as part of an unmistakable pattern that has emerged in other actions before this Court and in context of observations made by multiple other federal judges in cases involving Malibu Media.
This Court has observed the conduct of Malibu Media and its counsel of record in over 60 cases filed in this District in the past twelve months. This is not the first case in which Malibu Media has filed a summons return well after the date of service. Counsel appears to have made a misrepresentation in seeking an extension of time to complete service in two cases. The Court also issued an order to show cause after counsel publicly filed a defendant’s name in direct violation of two orders unambiguously ordering counsel to file that information under seal.
Malibu Media v. John Doe (OHSD 14-cv-00493) is one of the cases I list on the “Cases to watch” page. A mere fact that the defendant is represented by Jason Sweet means that it is worth attentively watching how this case progresses.
I wrote about this lawsuit half a year ago. That post was mainly about the defendant’s argument that the plaintiff didn’t need to know the Doe’s identity because his/her attorney would happily accept the service. The motion exchange revealed that Malibu’s local Yousef Faroniya is merely a stooge who files shakedown lawsuits and forwards email to/from the troll center in Miami. Not surprisingly, he avoids talking to the opposite party’s attorneys at all costs; hence I named the post “Copyright troll Yousef Faroniya and his telephonophobia.”
Normally I would edit the post to append a new information, but because at least three major events happened since my last update, a new article is appropriate. These events are:
the judge’s order denying the defendant’s motion to quash, and striking parts of the plaintiff’s complaint;
the defense’s motion to dismiss for failure to timely serve;
the plaintiff’s violation of the court’s order and the resulting motion to show cause.
Unfortunately, Judge Timothy Black was not persuaded by Sweet’s argument and on 1/21/2015ruled that the plaintiff is entitled to know the defendant’s identity. Nonetheless, while the judge didn’t explicitly order not to identify the defendant publicly at that time, the tone of the order suggested the assumption that the defendant would proceed pseudonymously.
Denying the motion to quash didn’t mean that Judge Black was happy with the plaintiff’s conduct. The following paragraphs from the complaint piqued his attention:
25. IPP’s software also logged Defendant’s IP address being used to distribute third party files through BitTorrent. This evidence indicates that Defendant engaged in BitTorrent transactions associated with 2732 files between 06/23/2013 and 05/13/2014. Collectively, this evidence is referred as the “Additional Evidence”.
26. Plaintiff has the Additional Evidence on a document and can produce it.
27. The Additional Evidence demonstrates that Defendant is a persistent BitTorrent user.
28. Many of the titles to the third party works may also be relevant to proving Defendant is the infringer because they correlate to the Defendant’s hobbies, profession, or other interests.
Those who follow these cases remember that Malibu Media and its attorney Mary K. Schulz wassanctioned twice in Wisconsin for filing an infamous irrelevant and scandalous “exhibit C” — the list of filenames, many of which are embarrassing, purportedly shared from the defendant’s IP address. The judge thought that the above paragraphs from the complaint are nothing but a concealed “Exhibit C,” so he sua sponte ordered to strike this travesty.