This upcoming Wednesday, August 24 at 10:00am, there will be a hearing in the case of On the Cheap, LLC v. Does 1-5011 on whether the plaintiff has shown sufficient cause why this case should not be dismissed due to misjoinder of defendants and improper venue. An Order to Show Cause was issued by Magistrate Judge Bernard Zimmerman on June 24, 2011 wherein he gave the On the Cheap the opportunity to issue a written brief and to allow for submissions of any opposition briefs in this matter. On July 14, On the Cheap’s lawyer Ira Siegel (who filed 17 file-sharing cases in the Northern District of California since October 2010) filed a brief attempting to show cause why this case should be allowed to proceed. The brief contains more block quotes than I have ever seen before in a court filing. On August 15, The Electronic Frontier Foundation (“EFF”) asked for, and was granted, permission to submit an amicus curiae brief (friend of the court brief) explaining the legal reasons why joinder is improper here and outing the tactics of these file-sharing plaintiffs.
If Judge Zimmerman finds that Ira Siegel has not sufficiently shown that this case is properly joined and in the proper venue, then the case may very well be dismissed and the plaintiff could be forced to sue John Doe defendants individually. It costs $350 to file a case in federal district court. With 5011 Doe defendants, the cost of merely bringing these suits individually becomes prohibitively expensive for the plaintiffs so a dismissal, even without prejudice, could functionally be as good as a win.
If, on the other hand, Judge Zimmerman allows discovery to continue until all defendants are identified and/or named in the case, then this case could remain on the docket for quite some time and identified yet still unnamed Does could still be subject to threatening demand letters (and possibly phone calls) from Mr. Siegel. Though, the fact that Judge Zimmerman issued the Order to Show Cause on his own accord and that EFF stepped in to help those threatened yet unnamed Does does give me confidence in the outcome.
I intend to attend the hearing and will bring updates as soon as I possibly can on the tone of the hearing and whether Judge Zimmerman makes a bench ruling in this matter or merely takes it under advisement, issuing an Order later. Stay tuned to my website and my Twitter feed for the latest on this case and its future.
Extra Note: On Friday, August 19, perhaps in anticipation of the upcoming hearing and its outcome, Ira Siegel DISMISSED 68 Doe defendants from the case with prejudice, meaning he settled with them. This case may have have already grossed Mr. Siegel and his client perhaps at least $68,000 and perhaps at most $150,000. These are guesses based on Siegel’s demands but, to get this much money all without ever naming a single defendant shows the business-model aspect of these cases: 1) Accuse, 2) Identify, 3) Send Demand Letters Threatening Litigation 4) Delay Actual Litigation, 5) Settle 6) ???? 7) Profit.
Just my two cents.