Boy Racer, Inc. v. John Does 1-34
ORDER denying 36 Plaintiff's Motion for Sanctions. Signed by Magistrate Judge Jonathan Goodman on 5/4/2012. (dkc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-23035-GRAHAM/GOODMAN
BOY RACER, INC.,
JOHN DOES 1-34 ,
ORDER ON PLAINTIFF'S MOTION FOR SANCTIONS
This matter is before the Undersigned by referral from the District Court of
Plaintiff's Motion for Sanctions Under the Inherent Powers of this Court.
No. 36] . The motion concerns a notice of filing submitted by John Doe #32.
[ECF No . 32] . In the notice of filing, Doe's counsel attached a declaration filed in
another case by a representative of Plaintiff's law firm . The notice includes a
succinct one-paragraph description of the declaration (with exhibits), and it is this
brief description which is at issue in the sanctions motion . Specifically, Plaintiff
contends that one sentence in the three-sentence notice is inaccurate .
As described below, the Court STRIKES this sentence, but DENIES
Plaintiff's request for sanctions .
John Doe #32 previously filed a motion challenging a subpoena that
Plaintiff issued to an internet service provider seeking subscriber information. In
support of that motion, John Doe #32 filed a notice representing that "Prenda
Law has affirmatively admitted that it has not ever served a single defendant in
any of the 118 pending copyright infringement lawsu its it has filed across the
[ECF No. 32].
Plaintiff requests that the Court sanction John
Doe #32 and strike the notice because John Doe #32 filed it in a bad faith
attempt to mislead the Court into believing that Prenda Law has never served an
alleged copyright infringer.
In support, Plaintiff identifies copyright infringement
cases in which it claims Prenda Law served a defendant.
John Doe #32 contends that his notice accurately describes the contents
of the February 24, 2012 declaration made by Prenda Law's records custodian
and responds that Plaintiff has not identified any specific false statement in the
notice warranting sanctions.
[ECF No. 41].
He also argues that the following
facts support the conclusion he acted in good faith in making the statement: (1)
he attached a copy of the declaration to his motion , thereby ensuring the Court
could examine the source material for itself; and (2) the statement relates to one
of the theories he advanced in opposition to the subpoena .
The records custodian made the declaration in response to an order in an
unrelated case from a California district court to provide, in pertinent part, a "list
of the BitTorrent copyright infringement cases involving multiple joined John Doe
Defendants filed by Plaintiff's counsel's law firm or predecessor firm in federal
court . . . . For each case, indicate how many Doe Defendants were actually
[ECF No. 32-2, p. 1].
The custodian responded that "[a]lthough our
records indicate that we have filed suits against individual copyright infringement
defendants, our records indicate that no defendants have been served in the
below listed  cases ." [ECF Nos. 41; 32-1, p. 5].
After reviewing the notice and the declaration, the Undersigned concludes
that John Doe #32 's notice is potentially misleading in one way and STRIKES the
following sentence from the notice: "Prenda Law has affirmatively admitted that it
has not ever served a single defendant in any of the 118 pending copyright
infringement lawsuits it has filed across the United States."
suggests that Prenda Law has filed only 118 copyright cases ever, has never
served a defendant in any of those cases , and therefore has never served a
copyright defendant. But this sentence is based on the declaration, which was
made in response to a request for information only about cases "involving
multiple joined John Doe Defendants," not all copyright cases Prenda Law has
ever filed or currently has pending.
Therefore, for instance, the records
custodian presumably was not required to list on his declaration the single
defendant Achte/Neunte Boll Kino Beteiligungs GMBH v. Michael Famula case, a
case in which Prenda Law served the defendant.
The Undersigned nonetheless DENIES Plaintiff's request for sanctions
because there is no evidence that John Doe #32 or his counsel acted in bad
faith. While this particular sentence might, upon careful review, be deemed to
have slightly mischaracterized the declaration , there is nothing to suggest that it
was in bad faith.
Moreover, any such finding would be belied by the fact that
John Doe #32 attached the complete declaration for the Court's own review. The
Court also notes that the declaration was clearly relevant to arguments Doe
made in his motion challenging the subpoena . [See ECF No. 26].
The apparent purpose of the notice of filing was to demonstrate Prenda
Law's persistent failure to name or to serve individual defendants . It is clear that
the law firm did not serve a defendant in any of the 118 multiple defendant
lawsuits listed in the declaration . Given the dynamics of this case, however, Doe
#32 may not have realized that the Plaintiff's law firm had served a defendant in
a single defendant copyright infringement lawsuit not included in the 118 multiple
defendant cases listed in the declaration. But this is an innocuous oversight. A
sanctions award based on this statement would be the equivalent of imposing a
significant jail sentence on a driver who left his car for five minutes after a parking
meter expired because he miscalculated the number of minutes for which he
DONE and ORDERED, in Chambers, in Miami, Florida , this
TATES MAGISTRATE JUDGE
Copies furnished to:
The Honorable Donald L. Graham
All counsel of record
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