As some of you may know, the Federal Rules of Civil Procedure mandate that a second voluntary dismissal, regardless of whether the plaintiffs denominate it as "without prejudice", operates as an "adjudication on the merits".
In all of the known cases, the RIAA's litigation process starts out with a "copyright infringement" against the defendants, naming them as "Does".
Almost all of those "Doe" cases are voluntarily dismissed by the RIAA.
Then a second action is brought against "Doe" in his or her name (the "named defendant action").
In my professional opinion, if the named defendant action is voluntarily dismissed, that dismissal operates as an adjudication on the merits. The RIAA ignores this principle, and commences a third action.
Only one defendant is known to have challenged such a third "bite at the apple". The defendant in Interscope Records v. Kimmel, where the new action was actually a fourth "bite at the apple". The judge, in a cryptic order, rejected the defendant's challenge, without explaining why.
Nevertheless, Fed. R. Civ. P. 41 is quite unambiguous, and should bar any third action.
In Warner Bros. Records v. Weiner, where the named defendant action was voluntarily dismissed, after the pro se defendant had moved to dismiss for lack of jurisdiction, we have been advised by an anonymous, pro-RIAA "troll" attempting to post disinformation to the comments section of our original post on the second voluntary dismissal, that the plaintiffs are indeed planning to file a third action, this time in Virginia. (The first 2 actions were in Massachusetts).
One of our faithful readers has been kind enough to go into PACER and retrieve the complaints in Action Number One against Sara Weiner and in Action Number Two against Sara Weiner.
Let's hope Sara, or an attorney representing her if she is fortunate enough to obtain legal representation, gets a hold of these earlier complaints and brings them to the attention of the court in Virginia.
Complaint in Action Number 1
Exhibit A
Complaint in Action Number 2
[Ed. note. The RIAA may argue that the "Doe" action wasn't really a copyright infringement action, it was a "discovery action". But that would mean that their attorneys would have had to have lied to the Court in the first action, and we know they would never do that. -R.B.]
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