Corri McFadden eDrop Off v. Midley Cases 2:12-cv-04095-GW-FMO and 1:12-cv-03632
24 March 2013
This month we received a flurry of new hits 1 referencing these two lawsuits:
- eDrop Off Chicago LLC et al v. Nancy R Burke et al
- United States District Court for the Central District of California
- Case 2:12-cv-04095-GW-FMO
- Date Filed 05/10/2012
- PDF Copy Civil Docket 05/10/2012-02/12/2013
- eDrop-Off Chicago LLC et al v. Burke et al
- United States District Court - Northern District of Illinois
- Case 1:12-cv-03632
- Date Filed 05/11/2012
- PDF Copy Civil Docket 05/11/2012-01/09/2013
Curious about the hits, we looked up the cases on PACER. As expected, the cases remain ongoing.
- "MOTION by Defendant Midley, Inc. to vacate And Reschedule Status Hearing
(Unopposed) (Citera, Francis) (Entered: 10/09/2012)"
- "MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held on and
continued to 4/3/2013 at 09:30 AM. (or, ) (Entered: 01/09/2013)"
- "MOTION by Defendant Midley, Inc. to vacate And Reschedule Status Hearing
- "Motion Hearing held before Judge George H Wu: Settlement is not reached." 10/29/2012
- "FIRST AMENDED COMPLAINT against Defendants Midley Inc, Does 1-10
inclusive (Discovery) 1 ,filed by Plaintiffs eDrop Off Chicago LLC, Corri McFadden
(pj) (pj). (Additional attachment(s) added on 11/26/2012: # 1 Exhibit A, # 2 Exhibit B,
# 3 Declaration C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (pj). (Additional
attachment(s) added on 12/4/2012: # 7 Exhibit G Part 1, # 8 Exhibit G Part 2, # 9
Exhibit G Part 3, # 10 Exhibit G Part 4, # 11 Exhibit G Part 5) (pj). (Additional
attachment(s) added on 12/4/2012: # 12 Exhibit G Part 6, # 13 Exhibit G Part 8, # 14
Exhibit G Part 8, # 15 Exhibit G Part 9, # 16 Declaration G Part 10) (pj). (Additional
attachment(s) added on 12/4/2012: # 17 Exhibit G Part 11, # 18 Exhibit G Part 12, #
19 Exhibit G Part 13 1 of 2, # 20 Exhibit G Part 13 2 of 2, # 21 Exhibit G Part 14, # 22
Exhibit G Part 15) (pj). (Additional attachment(s) added on 12/4/2012: # 23 Exhibit G
Part 16, # 24 Exhibit G Part 17 1 of 2, # 25 Exhibit G Part 17 2 of 2, # 26 Exhibit G
Part 18 1 of 2, # 27 Exhibit G Part 18 2 of 2, # 28 Exhibit G Part 19, # 29 Exhibit G
Part 20, # 30 Declaration G Part 21) (pj). (Additional attachment(s) added on
12/4/2012: # 31 Exhibit G-1 PART 1, # 32 Exhibit G-1 PART 2, # 33 Declaration G-1
PART 3, # 34 Exhibit G-1 PART 4) (pj). (Additional attachment(s) added on
12/4/2012: # 35 Exhibit H, # 36 Exhibit I, # 37 Exhibit J) (pj). (Entered: 11/08/2012)" (Ed. The Amended Complaint was included, but not the Exhibits.)
- "TRANSCRIPT for proceedings held on Monday, October 29, 2012; 9:11 A.M.." 11/08/2012
- "Plaintiffs' Opposition to Electronic Frontier Foundation's Application for Leave to File
Brief Amicus Curiae Brief Opposition" 11/08/2012
- "The Amicus Curiae's application is DENIED." 12/03/2012
Regardless that the cases remain ongoing, there are interesting tidbits in the November "First Amended Complaint", and in the October 29, 2012 transcript.
"Anyone care to guess who is included in Does 1-10?"
24 July 2012 03:02 PM
Dominque R. Shelton and Erin L. Pfaff, "Attorneys for Plaintiff, Edrop-Off Chicago LLC and Corri McFadden", dropped Nancy R. Burke, but have not dropped the "DOES 1-10 inclusive" from the case. As they have stated:
- "6. The true names and capacities, whether individual, corporate, associate, partnership, limited liability company, or otherwise, of Doe Defendants 1-10, are unknown to Plaintiffs, who therefore sues said Defendants by such fictitious names and will ask leave to amend this Complaint to show their true names and capacities when the same have been ascertained. Plaintiffs allege on information and belief that each of the fictitiously-named Defendants are responsible in some manner for the wrongful conduct herein alleged, and that such wrongful conduct caused harm to Plaintiffs."
- "many others who Plaintiffs do not know their true identities, but will amend the complaint to include them once the identities are known"
When the "individual, corporate, associate, partnership, limited liability company" etal described elsewhere in various legal documents are excluded, we're left with some names.
Just the Amended Complaint document contains the "names" of:
- Four (4) Edrop Off customers
- Six (6) posters to Plaintiff exhibited thread(s)
- One (1) poster to Plaintiff exhibited thread(s), named in Exhibit G
And the attached Exhibits contain many many more "names".
- "evidenced by over 1,000 (and counting) responsive comments"
- "spawned hundreds of additional defamatory comments"
At this moment the answer to 'who is a Doe?' is pure speculation. Only the Plaintiff (Corri McFadden, "Edrop-Off Chicago LLC") attorneys know if any or none of the names in the Amended Complaint and Exhibits are potential "Does", or merely witnesses.
Should the California case reach the discovery phase, then expect real names on the complaint.
Then there's the matter of mentioning the specific web addresses of the threads known as "First Defamatory Thread" and the "Second Defamatory Thread." (Ed. The Plaintiff presents those addresses in available to public court documents.)
The Plaintiff Attorneys link those threads to this statement, "as well as false and defamatory comments posted on other online discussion forums that hyperlink to the defamatory thread." Which presents the possibility of posters "on other online discussion forums" being flagged as potential "Does." Not to mention the possibility of "other online discussion forums" being tagged as "Does."
There are a few "other" websites that have posted those thread addresses. Our unofficial survey indicates most of those "other" websites and threads have vanished. The ones that remain ... we'll see what happens at discovery.
"you might really still want to settle this case. In the end this is just going to go on and on. And there is going to be a huge bill at the end."
Judge George H. Wu, 29 October 2012
The transcript of the forty page 29 October 2012 Court proceeding provides a bit of insight into the settlement process. And costs.
- Dominque R. Shelton, for Plaintiffs:
- "we wrote in our confidential brief to Magistrate Olguin that we would be willing to walk away. And it's also a statement that PurseBlog sent us letters saying we understand that in putting your demand you are trying to get to a walk-away which is unacceptable to them."
- Ian C. Ballon, for Defendants:
- "my client doesn't want to accept the walk-away at this point. Because while we had proposed it many times and we had several runs of settlement negotiations, the walk-away proposal came once the legal fees exceeded $300,000. At that point my client wanted some compensation."
- "the reason we didn't have the mediation -- we were going to mediate even knowing that the plaintiff wanted a walk-away. When the plaintiff changed their position and sent us a letter saying that our position now is we want you to pay $500,000"
Taking an overly simplistic view, over a period of five months at two venues the Defendants legal fees were "$300,000." Or $60,000 a month. While the Plaintiffs legal fees might be "$500,000", or $100,000 a month.
With the case at the ten month mark, imagine what the legal fees are now.
As Judge George H. Wu put it:
- "After this point in time it's going to get even more expensive, because you are talking about two litigations, one here and one in Illinois." 29 October 2012
THE COURT: Before I do that, what's the status at this point in time of the Illinois litigation, anything, or is it still stayed or what?
Ms. Shelton: It's stayed pending resolution of this action, Your Honor.
Mr. Ballon: Your Honor, it's not actually stayed. The plaintiffs' have agreed to continue the hearing in that case after this hearing.
THE COURT: Okay. But what's the pending hearing there?
Mr. Ballon: No pending hearing.
THE COURT: There is no pending hearing.
Mr. Ballon: There is no pending hearing.
Incidentally the transcript contains mentions of actions involving SLAPP and Anti-SLAPP, Communications Decency Act, discovery, case dismissal, case amendment posts, related cases, fascinating discourse, and a good sprinkling of common sense. Far too much to give a good summary. If you want a "feeling" of the case, we recommend reading this document.
We'll close this article, with Judge George H. Wu's closing words:
"The mere fact that some party is unreasonable in their settlement doesn't necessarily mean that there is going to be an adverse consequence because they may ultimately prevail. So that's just what happens in a settlement. And sometimes one party that has the better case decides not to settle and they lose.
That's not uncommon too. So all that being said, the parties should seriously talk about trying to resolve the case. And if you want to I can get involved. I don't mind getting involved but you have to have a written permission from your clients.
Okay. So we have future dates now. We have everything. So go ahead and try to settle. But if not, then there is the dates that we have."
The cases continue.
- eDrop-Off Corri McFadden California and Illinois Lawsuit Dockets
- Corri McFadden eDrop-Off Chicago LLC California Lawsuit Motion To Dismiss DENIED
"Stop. Stop. Stop. Don't keep on saying "with all due respect." It's really kind of insulting."
George H. Wu, United States District Judge
Case 2:12-cv-04095-GW-FMO Document 97 Filed 11/08/12
eDrop Off Chicago LLC and Corri McFadden vs. Nancy R. Burke, Midley, Inc. d/b/a Purseblog.com, and Does 1-10 inclusive