Tabberone is pronounced tab ber won
E! Entertainment Television |
Hall Of Shame Member
Added January 22, 2004
Last updated : December 19, 2009
Some background information first.
The members of the different entertainment academies vote on their prospective awards every year. Before they vote on the award, they are obligated to actually have seen the movie, Broadway show, or television show in question. For the movie industry this is easier than for television. As part of awards promotions, the academy members are sent DVDs of the various television shows being considered for awards. With every academy member receiving close to 100 unsolicited DVDs like this every year, it's natural to assume some of these DVDs will get into the secondary market.
That's what is causing the problem. One of the distributors of these DVDs, E! Entertainment Television, is actively engaged in the unlawful practice of terminating eBay auctions featuring these DVDs. E!, (for short) is claiming the usual copyright infringement tripe while pointedly ignoring the rights of individuals.
When someone files a lawsuit the other party (or parties) must be served with a copy of the complaint before the action can move forward. This service varies some from state to state but it is relatively uniform. Individuals usually may be served by mailing a copy of the complaint to their last known address. Corporations are a different matter. A corporation can usually be served by sending a copy of the complaint to a corporate officer, corporate lawyer or designated representative who resides in the state. Since many corporations are difficult to pin down, their addresses being difficult to find and such, designated representatives are often the recipient of the complaints. Many time this "representative" is a professional who represents many companies. These representatives are required to accept service and then forward the complaint to a company representative, usually a corporate officer.
To save time and cut the costs of litigation some, federal rules allow the plainitiff to mail a copy of the complaint to the corporate defendant with a waiver of physical service. The corporation does not have to accept mail service in this manner but it can be held liable for service costs should the corporation decline. That is what E! Entertainment, through their attorney, Jeffrey Lai, after we filed a federal complaint (03-D-2234(PAC)) because E! Entertainment terminated an auction on eBay for a DVD.
It appeared that one Janel Tamares was the corporate asshole in charge of abusing legitimate sellers on the internet. In the only reply we were able to get from E! Entertainment, our good buddy Janel Tamares stated"
Please note that the E! DVD contains a warning which states, "Distribution or sale expressly prohibited." This warning is located on the DVD itself next to E!'s copyright notice along the outer edge of the DVD.Since E! Entertainment refused to talk about the issue, we sued. When we called E! Entertainment on January 13 to inquire about their intentions concerning accepting service, we were told they were seeking outside counsel on the matter. On January 22, 2004, when we called to again inquire, we were told to get a US Marshall for service. Is E! as stupid as they act?
According to the California Secretary of State's web site, E! Entertainment Television, Inc., is corporation #C1272418, date filed March 25, 1985, and shows the Agent For Service of Process to be Jeffery R Lai. The telephone conversations confirmed the registered agent for E! Entertainment, Jeffery Lai, had received the mailed copies of the complaint and the Request For Waiver of Service. Jeffery Lai, was also in-house counsel for E! Entertainment. So why would in-house counsel, and registered agent, refuse service? Because he's a flaming asshole.
The registered agent had no reasonable reason to refuse service by mail. Personal Service was effected on Tuesday, January 27, 2004, by registered process server, Mark Valenti, of Los Angeles, California. Mark informed us that he was told by the secretary that Jeffrey Lai was unavailable. When he asked for another lawyer, he was told they were all out and that he should come back another time so a lawyer could read the papers and decide if they wanted to accept them. Mark then asked for an officer of the company and the secretary refused to call one. Mark then found an employee who was willing to identify himself and served the papers. All perfectly legal under California law.
To what purpose was all of this? Is Jeffery Lai so arrogant and have so little regard for the legal system that they play this charade? It is petty and an insult to the courts. On February 12, 2004, sixteen days after service, we filed a Motion For Costs with the court. As of that date we had not been contacted by any attorney representing E! Entertainment.
On February 12, 2004, while returning home, we were informed that the law firm of Snell & Wilmer, LLP of Denver, Colorado, had taken over representation in the case. They immediately wanted us to send them a waiver of service or they would file a motion contesting service. We pointed out to them we didn't want to allow them a waiver because we felt it would compromise our motion for expenses.
On February 18, counsel for E!, Michael Martin, of the law firm of Snell & Wilmer, LLP of Denver, Colorado, filed a Motion To Dismiss, Or In The Alternative, To Quash Service For Insufficiency Of Service Of Process. We considered this motion a delaying tactic and filled with deliberate distortions of fact, or as the common folk say, he lied and lied and lied to the court.
Lie # 1. The first thing a lawyer will request from a client is all pertinent papers received concerning the case as well as the position of the other side. Michael Martin knew, and reasonably had to know, that service was made by a licensed process server in California. Licensed process servers know the rules and simply do not jeopardize their business by not following the rules. So Michael Martin's characterization that the process server "discarded a summons and complaint at Defendant's Los Angeles reception desk" was a deliberate lie and additionally was defamatory to the process server. The actual wording, claims the "plaintiffs" effected service when in fact Michael Martin knew it was a licensed process server.
Lie #2. The next lie told by Michael Martin, of the law firm of Snell & Wilmer, LLP of Denver, Colorado, was to quote a case from the Eastern District of Wisconsin that claimed "[A]bsent actual authority to act as an agent for the service of process, an agent is not authorized to accept service on behalf of her principal." But the service was in California and the above quote was based upon Wisconsin law and not California law. Now why would Michael Martin do that? Because he could not find a suitable quote from California courts and he needed something to support his lie that service was not proper. Except that under California law is was proper.
In other words, merely leaving a complaint and summons with a receptionist with upon whom Defendant has conferred no authority to accept service does not meet Fed.R.Civ.P.4(h)'s requirements. Such 'sewer service' constitutes shoddy practice. It delays the process of justice and must be discouraged. This court has discretion to do just that."Sewer service"? The licensed process server served E! according to California law as allowed in Fed.R.Civ.P.4(h):
Lie #4 and Lie #5. Really pouring it on, Michael Martin gives us a two-fer when he then claimed:(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and — if the agent is one authorized by statute and the statute so requires — by also mailing a copy of each to the defendant; or....
Nor does this slipshod tactic comply with California's laws governing service of process. California law required Plaintiffs to serve their complaint and summons upon either (i) Defendant's statutorily-designated agent for service of process, or (ii) Defendant's 'president... vice president,... secretary or assistant secretary,... treasurer or assistant treasurer, a general manager, or a person authorized by [Defendant] to receive service of process." CCal.Civ.Proc.Code § 416.10.This quote is really misleading. While CCal.Civ.Proc.Code § 416.10 does say the above, Michael Martin omitted any reference to CCal.Civ.Proc.Code § 415.20 specifically states:
415.20. (a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof.Wow. That effectively negates the previous claims made by Michael Martin, of the law firm of Snell & Wilmer, LLP of Denver, Colorado. If Michael Martin was unaware of CCal.Civ.Proc.Code § 415.20, which we seriously doubt, Jeffery Lai, in-house counsel for E! certainly did know of it and was obligated to tell his attorney of it. But since Michael Martin signed the document, he was attesting that not only was he telling the truth (stop laughing) but that he knew all pertinent statutes. This "slipshod tactic" fully complied with California law. Another defamatory statement about the process server.
Lie #6. Perhaps Michael Martin thought if he repeated the same lie by rewording it that it would have more effect.
None of Defendant's officers or appointed agents specified in § 416.10 were at the reception desk at which Plaintiffs left their summons and complaint. Plaintiffs chose an impermissible means of service under California law, meaning service was also improper under Fed.$.Civ.P.4(h).Michael, Michael, Michael. You poor lad. CCal.Civ.Proc.Code § 415.20 contradicts your assertions, whoops - sorry, your lies once again. You so desperately want to be loved, don't you?
Lie #7. Poor Michael finally acknowledges there is a process server involved and the existence of CCal.Civ.Proc.Code § 415.20. But then he attempts to refute what happened ignoring the fact that under California law the professional registered process server is considered on par with a sheriff or other law enforcement officer when it comes to service. Refuting the process server's statement of delivery requires incontrovertible proof not just the whining statement of a laying lawyer.
Lie #8. Done subverting California law in the eyes of the Tenth District, Mike turns to a plea for sympathy, arguing, "After the complaint and summons that Plaintiffs left at Defendant's reception desk finally worked its way to Defendant's counsel, almost all of Defendant's 20-day time period to answer Plaintiff's complaint had lapsed."
He did call us about a waiver on February 12. And he was told his client refused to sign a waiver and told us to serve them. We were not inclined to agree to a waiver that had been refused before. Service was made January 27. Add ten days for service to be effective under California law, which dictates service under federal law, Shit-for-brains Martin had until February 26 to respond. A full 14 days from the time he called us. Was that enough time? It certainly was. Martin filed his perjurous Motion February 18. Instead of wasting his time on the Motion he could have worked on other things besides calling us "obstreperous" and lying to the court. On March 10, 2004, he withdrew the Motion.
On March 29, 2004, Martin filed a Motion To Dismiss. E! Entertainment fought back with the argument:
Plaintiffs' Complaint is premised upon their contention that the "first Sale Doctrine" shields them from claims of copyright infringement in connection with the auction of a copyrighted E! DVD on eBay. However, the DVD they attempted to auction was not subject to a first sale. It was distributed without charge to members of the Academy of Television Arts and Sciences ("ATAS") and the National Academy of Television Arts and Sciences ("NATAS") solely for promotional purposes in connection with the Emmy awards. As the copyright owner, E! expressly reserved all rights including any rights of distribution. It specifically prohibited any further distribution or sale. Because Plaintiffs cannot claim valid ownership of the DVD, they cannot invoke the first sale doctrine, and their claims fail as a matter of law.Our contention was that the DVD was sent unsolicited to unknown recipients and therefore under postal regulations the DVDs were gifts and no longer subject to the control of E!. See UMG Recordings vs Troy Augusto --F.Supp.2d --, 2008 WL 2390037 (C.D. Cal. June 10, 2008). The wording on the DVD is not legally binding upon the recipient or any subsequent owner of the DVD. See also Softman Products v Adobe Systems, 171 F. Supp. 2d 1075 (C.D. Cal. 2001) concerning the first sale doctrine.
We made these same arguments but they were dismissed off-hand by Magistrate Judge Patricia Coan in favor of anything claimed by the lawyers for E! We believe Magistrate Judge Patricia Coan had a pro se bias based upon her rulings. However that may be, she ruled in favor of E! saying we did not have lawful possession of the item in question. Lawful possession to re-sell the item. We are sure a court of appeals would not agree with her but we declined to continue. Magistrate Judge Patricia Coan is no longer on the bench for which many people should be thankful considering her bias.
It has come to our attention that one Jeffrey Lai is no longer with E! Inquiring minds would
like to know why? Has Jeff done something rash? Did he leave voluntarily? Was he let go?
He's no longer the registered agent for E! Maybe Jeff left because, as he stated in his affidavit,
he can't seem to get his mail delivered in-house? Or was it because in our opinion he out-right lied
about the service issue?
Considering he had knowledge of the complaint and then vigorously attempted to avoid service, in our opinion, shows his low level of ethics. Was the corporate mentality that prompted this his alone or was he just following procedure? A registered agent ducking service - not a good image for E!
In an effort to provide a balanced view, we make the following offer to anyone who feels they have been wrongly accused on this web site.
If you, or your company, have been referenced on these pages, and you would like the chance to post a rebuttal, we will post your rebuttal (provided it is in good taste) so others can read it. The rebuttal must be submitted in a format that can easily be converted into HTML. We reserve the right to alter the rebuttal to make it more readable. However, we will not alter the content (unless there is offensive material to be removed). We also reserve the right to comment on any rebuttal received. Emails protesting the content of this web site may be treated as rebuttals by us at our discretion.
Articles | Cease and Desist Letters | Federal Court Cases | FAQs & Whines | Glossary | Hall Of Shame | Contributions
Initial Interest Confusion |
Likelihood Of Confusion |
Material Difference Standard
Parallel Imports | Post-sale Confusion | Puffery | Secondary Meaning | Subsequent Confusion | Trademark Abuse
Unauthorized Use | Unfair Competition | What is a Trademark?
Angel Policies |
Contributory Infringement |
Copyright Extortion |
Copyright Misuse Doctrine
; Derivative | The Digital Millennium Copyright Act | EULA | Fair Use | First Sale Doctrine | Product Description | Registration
Registration Denied | What is a Copyright? | What is not Copyrightable?
Embroidery Designs |
FAQs & Whines |
Image and Text Theft |
Licensed Fabric |
Licensing & Licenses |
Patterns Index | Profit | Quilting | Selvage | Stanford School of Law Case Outline
Tabberone Disclaimer | Trademark Extortion | Urban Myths | What To Do If You Are Veroed
Federal Court Cases |
Alphabetically | by Federal Circuit | by Subject | by Court Quotations
Federal Statutes |
Copyright Act 17 U.S.C. 5 | Digital Millenium Copyright Act 17 U.S.C. 12 | Lanham Act 15 U.S.C. 22
VeRO (Verified Right's Owner Program)|
VeRO Commandments | VeRO-Verified Rights Owners Program | Counter Notice Letter
Counter Notice (pre-2003) | Counter Notice present | On-Line Survey from 2004 | Articles about VeRO | What To Do If You Are Veroed
|Original material by Karen Dudnikov & Michael Meadors is © 1999-2017|