Copyright Infringement Advisor

Anatomy of a Winning Motion to Quash

Posted in Doe Counter-Suits, Porn Industry

Emphasis on the word “winning.” There are quite a few sites out there that offer you a sample motion to quash, but what good is it if it doesn’t win.  In other words, why file anything if it doesn’t have a good chance at winning.

I mentioned before that I’ve started a survey of copyright cases where motions to quash have been filed, and I’m looking at which ones win and which ones lose.  Below is a sample of one that won.

But before you go off and try to just copy it and use it for yourself, let me point out a couple things.  This motion was filed in Celestial, Inc. v. Does 1 – 252; Case No. 2:12-CV-00082 (FLMD).  There were a large number of motions to quash, dismiss, and/or sever filed. The order disposing of those motions only granted the motions to quash, and only then on the basis that the Court lacked personal jurisdiction over those Does who made a showing that they didn’t live in Florida. The Court did not grant any of the motions to sever or dismiss.

So without further ado, here is the motion (followed by the Order granting the motion to quash portion):

Winning Motion To Quash
Order Granting Motion To Quash

  • SJD

    David Tamaroff always introduces new, very well versed arguments, not just explores what was done before him; he is one of the strongest bittorent defense attorneys.

    I see another dimension here: judges are undeniably biased and in many cases literally the same pro se motion that presents the same arguments as an attorney-written one has much lesser chance of success. The most dire example is Florida’s Miami-Dade court where a lot of ill-conceived fishing expeditions take place: 100% of pro se motions are denied there and 100% of attorney-written ones are granted. This leads us to another topic — if a defense attorney is a natural part of a food chain, where is the fine line beyond which he becomes a part of the problem rather than the solution. I don’t think it makes sense to start discussing this huge and sensitive topic right now, but it is worth considering and contemplating.

    Now about your question “…why file anything if it doesn’t have a good chance at winning.”

    Very valid statement today, but a year ago I wouldn’t agree with it because there was another strong argument: to educate judges. Today more than 90% of judges are aware of the scam anatomy, but a year ago it was not the case. So, it made a lot of sense to file a motion just to make a judge aware of what’s going on. Maybe he wouldn’t believe once, twice, but seeing similar arguments over and over again, he would at least look at trolls’ reasoning differently, with a grain of a doubt, unless this judge is unfortunate to bear the name “Beryl Howell”, of course.

    Another reason: to create more work for a troll. This is bordering violation of the Rules of Professional Conduct, but is OK for pro se defendants IMO. Asymmetrical warfare of a hive in a clear “inequality of arms” conditions is valid and ethical, again IMO. Does who overwhelm dockets with motions drive trolls’ profit margin down, which is good. Judges also don’t like extra work when they have real suits in their dockets, thus they have incentives to find an excuse to kill a case.

    And, finally, it just feels good to fight back and defend your dignity.

    • John Whitaker

      As usual, very good advice. As a lawyer who is frequently on the plaintiff’s side and working for a contingent fee, your comments are very accurate. The whole asymmetrical warfare position is dead on.