United States District Court, D. Connecticut
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 ...