Month: December 2013

District Court Rejects Sanctions Against Lawyer Because Sanctions Won’t Deter Future Misconduct

Segura v. Federal National Mortgage Association, Dist. Court, Minnesota 2013 – Google Scholar.

An attorney, William B. Butler, is noted for foreclosure defense. He is also noted for alleging, again and again, certain defenses that have been rejected by the courts, such as the defense that the bank cannot prove that it has custody of the original note and other similar defenses.

In this case, the court dismissed the complaint with prejudice but declined to sanction Butler. The court reasoned as follows:

Since deterrence is the primary purpose of Rule 11 sanctions and Mr. Butler has been undeterred by the issuance of sanctions, the goal of deterrence “is not served by piling sanctions on Butler, especially when they appear to have little deterrent effect at this time.” Order of 9/5/13 at 11, Murphy v. Aurora Loan Services, LLC, 11-CV-2750 (ADM/JJK) [Doc. No. 185]. Accordingly, while this Court appreciates the seriousness of Defendants’ motion and does not condone the conduct at issue, the Court declines to award sanctions in this matter and denies Defendants’ request.”

This is an unusual rationale for denying a sanctions motion – sanctions don’t work so the court won’t bother with sanctions. I predict an appeal.

Edward X. Clinton, Jr.

Another Federal Court Sanctions Lawyers For Filing Porn Copyright Infringement

MALIBU MEDIA, LLC v. John Doe, Dist. Court, ED Wisconsin 2013 – Google Scholar.

This is another chapter in the legal warfare over copyright infringement in the adult film context. The district court sanctioned counsel for the plaintiff $200 for each case it filed on the ground that the complaint used inflammatory exhibits to intimidate and coerce settlements.

The court explains the rationale:

In these and many other cases filed in federal courts all over the country, Malibu Media is suing individuals for illegally downloading their copyrighted adult films. The pattern that emerged, both here and elsewhere, is that Malibu Media would sue an anonymous defendant associated with an Internet Protocol address and then attach an exhibit to its complaint listing a large number of downloaded titles that do not correspond to the copyrights-in-suit. See Complaints, Exhibit C. Some of these titles are crude, obscene, and pornographic, much more so than the works copyrighted by Malibu Media, a purveyor of “sophisticated erotica.”[1] Thus, an initially anonymous defendant, who may or may not be guilty of infringing Malibu Media’s copyrights, would likely feel pressured to enter a quick settlement to avoid having his or her name associated with a particularly embarrassing list of pornographic films….

Finally, the entirety of Malibu Media’s litigation conduct strongly suggests that Exhibit C was filed for an improper purpose. According to a PACER search, Malibu Media has filed over a thousand cases thus far in 2013.[4] The Court doubts that Malibu Media has the resources to fully litigate even a fraction of this amount of cases. Malibu Media has the legal right to enforce its copyrights, but the sheer number of lawsuits corroborates the Court’s belief that Exhibit C was being filed to coerce quick and early settlements. Malibu Media explains that at the beginning of 2013, it stopped suing people in joined suits and began to sue defendants on an individual basis.”

The adult film infringement cases have spawned a great deal of litigation. Many have come to regard the cases as acts of extortion or as efforts to blackmail and intimidate defendants. The federal courts have begun to ask questions of the lawyers who filed these cases, cases that those lawyers have not been able to satisfactorily answer. Why include an exhibit that the defendant did not download if you are suing for copyright infringement?

Edward X. Clinton, Jr.



District Court Imposes Sanctions for Lawyer’s Failure to Investigate False Signature on Affidavit

Paniagua v. MAX 18, INC., Dist. Court, ND Illinois 2013 – Google Scholar.

The district court has imposed sanctions against a lawyer for the filing of a false affidavit.  The Court concluded that the lawyer failed to make a reasonable inquiry into whether the signature on the affidavit was genuine and imposed a sanction of $1000 on the lawyer. The client was ordered to pay the reasonable costs and expenses of the Plaintiff.

The court explains:

The Court’s inquiry into the circumstances surrounding the creation and submission of the 2012 Kamel Affidavit is not a frolic and detour. It has taken substantial time and resources, and that substantial investment is commensurate with the serious fraud that occurred here. The integrity of the judicial system is compromised when the adversarial process is tainted by fraud, and more so when a member of the bar fails to acknowledge as much.

Having concluded that Mr. Schimanski failed to make an inquiry reasonable under the circumstances before filing the 2012 Kamel Affidavit, and having received no response from Mr. Schimanski with respect to the potential imposition of sanctions, the Court imposes on Mr. Schimanski under Rule 11[1]a fine of $1000 payable to the Clerk, to serve the rule’s deterrent purpose to prevent repetition of the improper conduct. SeeDivane v. Krull Elec. Co., 319 F.3d 307, 314 (7th Cir. 2003). The fine is payable within 14 days of the entry of this order.”

Edward X. Clinton, Jr.