Beckely v. Raith et al

Filing 61

ORDER DISMISSING ACTION WITH PREJUDICE AS TO ALL DEFENDANTS. Signed by Judge Alsup on November 8, 2013. (whalc1, COURT STAFF) (Filed on 11/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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MATTHEW BECKELY, p/k/a DYLAN
MATTHEWS,
No. C 13-02707 WHA
Plaintiff,

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v.
ORDER DISMISSING ACTION
WITH PREJUDICE AS TO ALL
DEFENDANTS

REINHARD RAITH, et al.,
Defendants.
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As stated at the November 7 case management conference, this action in its entirety is
DISMISSED WITH PREJUDICE. The reasons for the dismissal are as follows.
In broad terms, the complaint alleges that plaintiff is a co-copyright owner of a musical

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work entitled “Louder.” Plaintiff alleges a putative cause of action under the DMCA against

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YouTube for restoring public access to the song after plaintiff sent YouTube DMCA takedown

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notices. Plaintiff asserts copyright infringement, contract, and business tort claims against the

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other defendants based on their use of his alleged contribution to the work.

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Plaintiff is a resident of Michigan who claims to be indigent. He has been unable or

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unwilling to obtain an attorney. In forma pauperis status was authorized based on his apparent

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indigency. He chose to bring suit in California against defendants located in this district, New

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Jersey, Illinois, and Germany. It is reasonable to require the plaintiff to appear in the district in

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which he himself sued, but he has refused to do so. Although plaintiff participated in the
preparation of a joint case management statement, plaintiff refused to appear for a case

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management conference on September 12 (Dkt. No. 34). Plaintiff also failed to appear for an

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ADR conference via telephone on September 11 (Dkt. No. 32). All of this was in violation of

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Civil Local Rules 3-9(a) and 16-10(a).

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A subsequent order dated October 9 excused plaintiff’s repeated failure to appear but

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notified plaintiff that he must appear in person at the rescheduled case management conference

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set for November 7 at 11:00 a.m. Plaintiff was specifically warned that “if he does not appear in

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person at the next case management conference, this action will be dismissed” (Dkt. No. 44 at 4).

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Nothing was submitted by plaintiff to alert the parties and judge of his plans to appear or not

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appear, nor submitted afterwards as to his reasons for not appearing.
On November 7 at the 11:00 a.m. calendar, the matter was called as noticed. Plaintiff

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For the Northern District of California

United States District Court

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was not present. The matter was put over to the end of the calendar to give plaintiff a further

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opportunity in case he was stuck in traffic. At the end of the calendar, the matter was called

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again. Defense counsel for YouTube was present (as before) but still plaintiff was not present.

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Counsel for YouTube was heard. At the conclusion, the action was dismissed for lack of

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prosecution and for reasons to be stated in this order.

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The order dated October 9 also denied plaintiff’s request to have the Court pay for

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service of his complaint on the overseas defendants (id. at 3–4). Although plaintiff has been

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granted in forma pauperis status, the order concluded that under the particular circumstances of

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this action, the cost and burden of proper service under the Hague Convention should not be

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placed upon the taxpayers. The order required plaintiff to notify the Court by November 7 at

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noon whether he intended to incur the expense of serving defendants in Germany. Plaintiff

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failed to respond to the order.

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Accordingly, this order finds that plaintiff has failed to prosecute this action. This
finding, standing alone, warrants complete dismissal.
There is more. Plaintiff has engaged in sanctionable misconduct by sending sexually

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explicit and obscenity-laden emails to counsel for defendant YouTube. In August, plaintiff sent

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unprompted emails to a female associate attorney representing YouTube, stating: “I still think

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your [sic] hot! Can we speak, informally, about Habeas?” and “your [sic] pretty sexy when your
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[sic] prompt and direct” (Dkt. No. 51-1 Exhs. C–D). The emails were followed with another

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unprompted email stating: “Did you learn that in the 1st Circuit?” — apparently a reference to

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the young attorney’s prior clerkship experience (ibid.). A YouTube attorney warned Mr.

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Beckely that any further communications with the associate would result in a motion for

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sanctions and a restraining order.

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In October, counsel for YouTube asked plaintiff to confirm whether he would attend the

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November 7 case management conference. Plaintiff responded with an obscenity-laden answer

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that stated: “FUCK YOU, THE JUDGES UVE CLERKED FOR, AND YOUTUBE. SEE UR

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BITCH ASS IN COURT” [sic.] (id. Exh. B). This was the final straw. Counsel brought all of
the foregoing to the Court’s attention in a filing to which plaintiff did not respond.

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For the Northern District of California

United States District Court

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These communications have and had no place in a United States District Court. Even a

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non-lawyer like plaintiff must know better. That plaintiff had researched the female associate’s

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background in tandem with the sex comments was rank intimidation. This order finds that

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plaintiff’s misconduct, in and of itself, warrants complete dismissal of the action with prejudice.

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Lesser sanctions would be inadequate because plaintiff’s alleged indigency insulates him from

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monetary penalties. Furthermore, because plaintiff is a non-attorney proceeding pro se, the more

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common option of referral to the Standing Committee is unavailable.

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Finally, the Court has reviewed plaintiff’s complaint and finds that, on its face, it is of

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dubious merit. For the reasons stated by counsel at the hearing on November 7, there is little or

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no merit to this case. It would be a waste of taxpayer dollars to continue the in forma pauperis

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expense involved and the large imposition on the private parties named as defendants (some of

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whom have been served). The Court has also considered the other traditional factors that must

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be weighed prior to a sanction of dismissal and finds that they do not disturb the foregoing

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analysis.

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The action is DISMISSED WITH PREJUDICE as to all defendants. Judgment will be
entered in a separate order.

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The Clerk shall inform the Marshal’s Service to cease all efforts to continue serving the
complaint and summons on any defendants.

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IT IS SO ORDERED.

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Dated: November 8, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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