Malibu Media, LLC v. Doe

          RULING ON DEFENDANT'S MOTION FOR NONSUIT OR DISMISSAL [Doc. 28] AND PLAINTIFF'S MOTION TO COMPEL [Doc. 32]

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         In this copyright infringement action, Plaintiff Malibu Media LLC, d/b/a X-Art.com, ("Plaintiff" or "Malibu Media") asserts that Defendant John Doe has unlawfully distributed ten of Plaintiff's copyrighted adult films by using BitTorrent, a "peer-to-peer file sharing system[ ] used for distributing large amounts of data, including, but not limited to, digital movie files."^[1] Doc. 18-1 (Redacted "Amended Complaint"), at ¶ 11; Doc. 18-2; Doc. 18-3. Pending before the Court at this time are two motions.

         The first is Defendant's "Motion for Nonsuit and/or Dismissal" [Doc. 28] based on Plaintiff's failure to prosecute the action under Rule 41(b), Fed.R.Civ.P. In that motion, Defendant asserts that Plaintiff has failed to: (1) confer, as required by Rule 26(f), Fed. R. Civ. P.; (2) respond to Defendant's "ongoing requests for a settlement demand;" and (3) exercise the "due diligence necessary to properly prosecute the case." Doc. 28, at 1. The second pending motion is Plaintiff's "Motion to Compel" [Doc. 32], which requests that the Court order the Clerk of the Court to send Plaintiff a copy of Defendant's "Sealed Offer of Compromise" [Doc. 30], filed November 25, 2019. Malibu Media alleges that "the aforesaid document was never served on [it], nor has Plaintiff's counsel ever been contacted directly by defense counsel, Michael J. Rose." Doc. 32. at 1. The Court will review and resolve both motions herein.

         II. DISCUSSION

         A. Doe's "Motion for Nonsuit or Dismissal" [Doc. 28]

         In support of his motion for nonsuit or dismissal, Defendant John Doe represents that his counsel has "reached out to the Plaintiff three times requesting to discuss settlement and/or engage in the [Rule] 26(f) Conference." Doc. 28, at 1. However, Defendant argues, rather than discussing settlement or engaging in a planning report conference under Rule 26(f), Plaintiff seeks to "shame" him to pay above fair market value for downloads, as Plaintiff has, "on information and belief," done in "hundreds of similar suits." Id.. Defendant thus asserts that not only has Malibu Media "not prepared or discussed the 26(f) Report," its counsel "has not responded to calls and emails requesting same." Id.

         In particular, Doe's counsel states that for nine months, from service of the Amended Complaint on February 22, 2019, to December of 2019, he made "multiple attempts to contact Plaintiff's counsel regarding both discretionary settlement negotiations and mandatory scheduling functions such as preparing a joint 26(f) report" - all without success. Doc. 34, at 2. As proof of his attempted communications regarding settlement and/or planning, Defendant's counsel, Michael J. Rose, submits his Affidavit, testifying that on April 3, 2019, his paralegal "left a voicemail message for Attorney Kevin Conway [Malibu Media's counsel] to contact [him] on [his] cell phone." Doc. 34-1 (Ex. A), ¶ 5. Then, on June 14, 2019, Rose sent a letter to Conway, requesting that he contact Rose "to discuss a possible resolution to this matter." Id. ¶ 6. Finally, "[a] short time thereafter," Rose attempted to phone Conway, but his call was unanswered and his voice mail message received no response. Id. ¶ 7. In short, according to Rose, none of his "communications regarding logistical litigation management responsibilities . . . were returned or answered." Doc. 34, at 2.

         Consequently, on November 25, 2019, Rose filed on behalf of Doe the present "Motion for Nonsuit" [Doc. 28] and a sealed "Offer of Compromise" [Doc. 30], in the continuing hope of resolving the case expeditiously. In his brief in support of dismissal, Rose summarizes his client's difficult position in this action as follows:

[E]very moment that this litigation continues is another ever-fresh moment of peril of being exposed to shame and embarrassment for the Defendant. The Defendant wants nothing more than for this case to be over, or failing that, at least for the parties to make progress towards a resolution. The Plaintiff allegedly discovered that the Defendant sought out and downloaded, inter alia, "Fit For A F-," "Would You F- My Girlfriend," and "XXX Threeway Games" for his private interests, and publicly alleged this in a lawsuit in federal court. Then, instead of prosecuting its lawsuit, the Plaintiff simply left the Defendant to twist in the wind for nine months. This is a fundamentally unfair misuse of the United States Courts to litigate by ways of threat of public shame, and it has severely prejudiced him by dragging this litigation (and his accompanying shame) on for almost twenty (20) months, with no end in sight, despite the undersigned's best efforts to work towards resolving the matter.

Doc. 34, at 5-6.

         Malibu Media objects to Defendant's "Motion for Nonsuit or Dismissal," challenging Rose's assertion that its counsel, Conway, has failed to communicate. Doc. 33. Malibu Media argues that just four days after Defendant's counsel, Rose, entered his appearance, Plaintiff 's counsel "sent email correspondence . . . acknowledging his representation and extending the offer to discuss settlement." Doc. 33, at 7. Counsel Conway attaches his copy of said correspondence to Malibu Media's "Opposition" [Doc. 33] as Exhibit A. In that email, dated March 17, 2019, Conway writes to Rose:

Your representation has been notated on the above case with 10 infringements. Please let me know if you have any information your client would like to provide at this time or if he is interested in resolving this case without further litigation and would like to discuss settlement. I have no objection to granting you some reasonable ...