Malibu Media Picks Fight With Wrong Defendant, Now Facing Abuse Of Process Allegations

Malibu Media continues to burn judicial bridges. This is due to its habit of juggling hundreds of lit torches at any given time. Sooner or later, a few are going to get dropped. The prolific copyright troll continues to issue speculative invoices at the rate of dozens a month. Federal judges all around the country are sitting on backlogs of Malibu Media filings. But one thing remains certain: pushback by defendants tends to result in judicial examination of MM's courtroom tactics. And that's the last thing this serial litigant wants.

When cases are actually examined on their merits, judges have been less than impressed. Some have noticed Malibu Media has little interest in actually serving defendants. Some have refused to let the troll dismiss cases the instant it experiences a little judicial friction. And, in Northern California, a judge has all but banned Malibu Media cases from his courtroom.

Here comes more bad news for Malibu Media. As Sophisticated Jane Doe reports, MM looked ready to cut-and-run on another settlement attempt gone haywire. Instead of making off with some money or its assertions unquestioned, the defendant countersued, alleging abuse of process by the troll. The judge handling the case isn't sold on the copyright infringement counterclaim but isn't going to let MM dismiss the case and bypass possible consequences for its process abuses. The judge also explains why he won't do this with a short rundown of Malibu's trolling tactic. From the order [PDF]:

The Court notes Plaintiff's penchant for litigation, which includes its filing of more than 100 cases in this district, more than 200 cases in the Southern District of Ohio, and hundreds more across the country. See Ricupero, 705 F. App'x at 403. While Defendant's [copyright] counterclaim is redundant, the Court finds that his concern of Plaintiff filing suit in the future without a determination on the merits is very real. The Court, therefore, hereby notices the parties that it will not accept a voluntary dismissal of the instant case unless it is with the consent of both parties.

This prevents Malibu Media from dismissing its lawsuit because things aren't going the way it thought they would. I'm sure Malibu isn't thrilled with this turn of events, because it allows the defendant to move forward with his abuse allegations.

Defendant alleges that Plaintiff "made knowing misrepresentations in its Amended Complaint," that it pleaded copyright infringement "despite knowing that an IP address alone is insufficient to identify an infringer," and that it "intentionally failed to disclose and concealed pertinent and material information regarding [P]laintiff's knowledge of the falsity of certain claims[.]" See Answer at 12-13. Defendant specifically alleges that Plaintiff instituted the action "without any genuine intent to proceed," and that it "used the completed service to publicly shame [Defendant]."

And here it is broken down even further -- pretty much a concise summation of every copyright trolling operation ever.

Assuming that these allegations are true, as the Court must at this stage, Defendant has adequately pleaded a cause of action for abuse of process. The first element, the ulterior motive, is clear: Plaintiff seeks to extort a settlement payment. The second element, the coercive act after the issuance of process, is satisfied by the alleged knowing misrepresentations Plaintiff made in its Amended Complaint.

This is only part of the list of counterclaims [PDF] made by the defendant -- claims that will now be examined by a judge which will likely require Malibu to turn over information it would rather keep secret about its extensive trolling operation.

Plaintiff willfully abused, misused and/or misapplied the process for an end other than that which it was designed to accomplish.

Plaintiff intentionally failed to disclose and concealed pertinent and material information regarding plaintiff's knowledge of the falsity of certain claims and the ulterior or illegitimate purpose for which the Complaints were employed.

Specifically, plaintiff failed to disclose and concealed pertinent and material information that includes but is not limited to the following:

a. Plaintiff instituted the original action without any genuine intent to proceed against defendant herein, but rather as a vehicle to obtain discovery of the identity and contact information of defendant and others;

b. Plaintiff knows it has no basis for naming defendant/counterclaimant as the infringer, yet continues to assert the claims against him;

c. Plaintiff assert its claims in order to influence the conduct of defendant in ways that are not related to the merits of its claims;

d. Plaintiff used the completed service to publicly shame defendant/counterclaimant; and

e. Plaintiff intends the current action to hang as a sword over defendant's head, to extort unwarranted payments to settle claims not supportable as a matter of law.

I would love to see a copy of Malibu's risk/reward analysis. Every lawsuit filed carries with it the chance its malfeasance will be exposed. There are a lot of variables Malibu can't control but it still must see enough profit to offset the risks raised by filing lawsuits by the fistful. But it won't remain that way forever. Trying to convert IP addresses into paychecks is a terrible con and Malibu is no artist.