Judge Beryl Howell CREATES A SPLIT in the DC Court.

There is a balancing act in this post as to how to make it NOT deathly boring, and how do I convey the information you need to understand what you have in front of you. Here we go.

Judge Beryl Howell once again issued a scathing opinion favoring copyright trolls and ruling against John Doe Defendants, their ISPs, the EFF, and everyone in favor of making these cases go away once and for all. However, there is a twist here in her decision, so read on.

In the AF Holdings LLC v. DOES 1-1,058 case (Case No. 1:12-cv-00048-BAH, Doc. 46) in the U.S. District Court for the District of Columbia, Judge Howell wrote a 42 page opinion essentially regurgitating all of her opinions of “judicial economy,” “personal jurisdiction,” “joinder,” whether an ISP has standing to file a MOTION TO QUASH on behalf of their subscribers’ arguments, and whether a subscriber’s MOTION TO QUASH is “ripe” for adjudication.

I want to be clear that this order is not written to the John Doe Defendants filing motions to quash, but to the ISPs who filed motions to quash on behalf of their subscribers.  To put it into context, this order is written to the ISPs telling them why they must comply with the subpoenas requesting their subscribers’ information.  However, her opinion has clear implications as to what a John Doe Defendant needs to be aware of if he decides to file a motion to quash in her court.

Restating her opinion of these cases, Judge Howell believes the following:

1) Copyright trolls have a right to sue defendants for sharing content over the bittorrent network.

PERSONAL JURISDICTION
2) “Personal jurisdiction” over a John Doe Defendant is IRRELEVANT before that defendant is “named and served” as a defendant in a lawsuit.

3) The proper place for a NAMED defendant to assert a lack of personal jurisdiction is in a responsive pleading (e.g., the “answer”) under a FRCP Rule 12(b)(2) motion.

4) A motion to quash by an unnamed defendant is NOT the proper place to assert improper jurisdiction.

JOINDER
5) “Joinder” — the question of whether the various John Doe Defendants are properly sued together (e.g., based on the “bittorrent swarm” theory) is IRRELEVANT before those defendants are “named and served” as defendants in a lawsuit.

6) Only NAMED defendants (not ISPs, not John Doe Defendants) may assert improper joinder.

7) A motion to quash by an unnamed defendant is NOT the proper place to assert improper joinder.

“JUDICIAL ECONOMY” (CONVENIENCE OF THE COURT)
8) It is more economical to deal with 1,000+ defendants in one lawsuit rather than dealing with the identical issues in 1,000 lawsuits.

Now essentially, as much as Paul Duffy, John Steele, and everyone at Prenda Law Inc. are overly excited about their wonderful order, there is not much that is new in this order that we didn’t know from Judge Howell’s previous orders.

Her breakdown of WHY MOTIONS TO QUASH DO NOT WORK, however, was astounding.

In her opinion, she states that NOWHERE IN THE FEDERAL RULES OF CIVIL PROCEDURE DOES IT SAY THAT A THIRD-PARTY MAY FILE A MOTION TO QUASH BASED ON IMPROPER JURISDICTION OR IMPROPER JOINDER.

Her words: “The plaintiff is correct that lack of personal jurisdiction and misjoinder are not delineated under Federal Rule of Civil Procedure [“FRCP” Rule] 45 as bases to quash a subpoena issued to a third-party [e.g., an ISP]. Indeed, third-parties cannot assert these defenses as a basis to dismiss the underlying action because, if either of these flaws did exist in the underlying action, they must be raised, and may be waived, by named defendants.  See FRCP Rule 12(b)(2) (lack of jurisdiction must be asserted in a responsive pleading [e.g., in the “answer”]); FRCP Rule 21 (“Misjoinder of parties is not a ground for dismissing an action…)” (emphasis added)

You can find a link to the actual order here.

MY OPINION:
This ruling is just another one of Judge Howell’s many opinions essentially saying the same thing.  The issues that inherently plague these cases (“jurisdiction,” “joinder,”) are unimportant to her, because as far as she is concerned, the copyright trolls have done everything properly according to the letter of the law.  Further, as far as she is concerned, there is no need for these smaller “John Doe 1-5” cases that we see Lipscomb & Eisenberg filing on behalf of Malibu Media, LLC, Patrick Collins, Inc., K-Beech, Inc., and the like.  Rather, just sue hundreds or thousands IN ONE CASE in HER DC COURT and she’ll let it go on indefinitely while the copyright trolls extort thousands of dollars from each defendant.

Further, as I have said before, JUDGE HOWELL (A FORMER COPYRIGHT LOBBYIST) DOES NOT CARE IF COPYRIGHT TROLLS EXTORT MONEY FROM JOHN DOE DEFENDANTS.  She even clearly states it here:

“At this stage, the plaintiff is attempting to identify those infringing… That the plaintiff chooses, after obtaining identifying information, to pursue settlement or to drop its claims altogether is of no consequence to the Court.

MOVING FORWARD FROM THIS CASE:
Luckily, however, Judge Howell is just one judge in one small federal court, and her opinions ARE NOT BINDING on other federal courts outside D.C.  And, even in D.C., we have a clearly an opposing opinion by Judge Wilkins, who has killed a number of bittorrent cases.  In short, Judge Howell has created a CLEAR SPLIT IN THE D.C. COURT which she has certified for interlocutory appeal.

What this means is that D.C. now has two opposing sets of case law, each which says the law is something opposite from what the other says it is.  For this reason, Judge Howell has authorized an immediate interlocutory appeal to a higher court so that these issues of jurisdiction, joinder, and the other issues discussed in the case (not discussed here) can be decided once and for all by a higher court.

26 thoughts on “Judge Beryl Howell CREATES A SPLIT in the DC Court.”

  1. For someone so caught up in the rules and the letter of the law, one has to wonder why she allowed multiple cases to sail past the 120 day deadline to serve or drop the cases.

    IIRC she only did something when there was finally media coverage of motions pointing out it had been on her docket for months past the deadline. She then had extended this deadline for many months longer because the trolls complained the ISPs were slow in providing the information.
    This left unmasked Doe’s sitting on the sidelines being sent “settlement” demands and threatened while more names were generated.
    She seemed to have no problem ignoring the rights of those Does being held in limbo. The trolls had the names they said they would use to file a named case… but never did.

    She also seems to have no issue with allowing these trolls to get these thousands of names and allowing them to keep that information when they dismiss the case. The entire point of this discovery was to get names to put into a “named” case and it had to be done quickly… funny how once they have names they no longer move quickly, and seek to take the information and move outside the “watchful” eye of the court.

    High Court/Low Court anyone?

    1. TAC, I think Judge Howell’s actions are undefendable. I cannot respect a judge that turns a blind eye to what is actually going on and pretends that the law allows such a thing to happen. I have no doubt that her interpretation of the motions to quash are appropriate. However, she is completely ignoring the frivolity of the case in the first place. The law does not allow such abuse / misuse of the legal system. If I were a judge I would force the plaintiff to move forward with their case or else I would sanction them… or at the very minimum, FRCP Rule 4(m) their asses out of court (120 day rule). AND, I would 1) have the ISPs produce only the cities and states of the defendants (not the names, addresses, phone numbers, and e-mails), and I would not let the trolls use the information outside the confines of THIS case. A real judge needs to stop the extortion, not just rule on one NARROW issue in a case.

      1. The fastest way to stop the extortion would be a Judge asking for an outside review of the IP gathering tech they use, rather than accept the word of an “expert” with a financial stake in the case. The error rate, the honey pots, the merits of the evidence would be found lacking…

        It is much to much to hope for as we can’t even get a Judge to sanction trolls who lie about copyright status in their filings. One would think not having a copyright might preclude you from filing a copyright lawsuit… this is not the case. And I’m not even talking about ones where the copyright application is filed 3 months before the lawsuit.

  2. Judge Howell is an exceedingly unpleasant person and not nearly as smart as she thinks she is — not nearly. Fortunately for Obama, he nominated three highly intelligent (and congenial) judges to the D.C. District Court (Boasberg, Wilkins and Jackson), so I suppose it balances out. But this was a mistake.

    1. In no defense of her positions, at least she had the common sense to recognize that she was creating a split in the district, and that she went through the steps to certify an immediate decision of the issues by a higher court. Too bad, however, the issue is “whether there is an undue burden on the ISPs” rather than whether joinder, jurisdiction, etc. is proper in these cases. The higher court could parry the issue and only decide on the ISP burden issue (which would be terrible).

  3. I thought I’d point out that Comcast et al filed a with CACD on the 16th. The Court sent a letter to Paul Duffy telling him he’s not a member of the bar, yada yada. They gave him until September 17th to file for admission. He still hasn’t replied to the petition and replies are due by the 30th. Let’s hope the Court says “Oh, your application for admission hasn’t been processed yet? Too bad. You should’ve foreseen this happening.”

  4. Just checked the CADC docket again, the docket number is 12-8011 which was a PITA to find since querying “Comcast” comes up with tons of cases. Duffy hasn’t even filed a single document. I would imagine that even if he’s not admitted to the court, he’d still be allowed to file a motion for an extension given that the drop-dead for him to file a response to the petition is tomorrow unless something is going on behind the scenes. I just put the petition up on scribd. 79 pages, thank God for PACER’s 30 pages billing policy 😛

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