Charles Carreon Promises Not To Go After Blogger; But Digs Own Hole Deeper Trying To Avoid Paying Legal Fees
from the not-over-yet dept
After finally getting served, Carreon offered to "settle" the case, admitting that the blogger hadn't done anything wrong -- basically giving the blogger everything he wanted:
The court shall enter a declaration declaring that:The blogger in question then accepted the offer -- but there remained one final point of dispute. That $725 fee. The lawyers representing the blogger, Gellis and Paul Levy, have pointed out that Carreon's own actions in avoiding service actually resulted in significantly more costs that they bore, and they'd now like Carreon to pay up to the tune of $4,664.45. Basically, Carreon's own mess resulted in higher costs, and he's now trying to dodge this, just like he dodged service of the lawsuit.
1. Plaintiff’s domain name “charles-carreon.com,” plaintiff’s use of the domain name, and plaintiff’s current manner of using his web site, do not violate defendant’s rights;
2. Plaintiff’s use of the domain name “charles-carreon.com,” in its current manner of use, is fair use and protected under the First Amendment, and does not infringe on defendant’s mark;
3. Defendant is not entitled to an injunction against plaintiff using the domain name “charles-carreon.com” or operating the Web site located at the URL “www.charles-carreon.com;” and
4. Plaintiff shall take a total money judgment inclusive of costs in the amount of $725, being the sum of the filing fee and service costs claimed.
He argues, basically, that since he made this settlement offer and the blogger has accepted the basic terms, everything is done, no more questions can be asked. In other words, in his mind "case closed, nothing to see, move on." Except that misrepresents the reality of the situation. As Levy and Gellis explain in their response, noting that the fees covered in the agreed settlement only covers Rule 4(d)(2)(A) fees (fees associated with service) and not Rule 4(d)(2)(B) fees (attorneys' fees). They point out that even the case that Carreon cites to make his case involved a settlement that explicitly called out attorneys' fees, wherease Carreon's own settlement offer only discussed costs, not attorneys fees, and the two are clearly treated separately and differently under Rule 4.
In Carreon's motion to avoid having to pay, he also pulls the "but I'm really, really sorry" card, combined with the "and people were so mean to me!" card. Levy and Gellis rip this to shreds:
Defendant’s opposition is accompanied by an affidavit in which he apologizes to the Court for imposing the need for proceedings connected with service by refusing to waive service. At the same time apologetic and defiant (such as where he declines to concede that plaintiff actually and properly sought waiver of service), Mr. Carreon suggests that he has suffered enough, that he has been vilified on the Internet and subjected to “a brutal onslaught,” and that the pursuit of this litigation reflect “exaggerated dedication.” This affidavit does not provide any valid basis for denying plaintiff’s claim for attorney fees.There's also an amusing bit in which Carreon argues that the method that Levy used to declare a reasonable hourly rate for his fees was rejected by a court. Levy, in response, points out that this is true... but that the ruling in question rejected the rates for being too low, and then points out that the rates requested are, bizarrely, "well-supported by Mr. Carreon’s own authority." Charles Carreon making the mistake of opening his own mouth too much strikes yet again, even at this stage of the game. Also, amusing, Levy points out that some of the reason why he's claiming 6.7 hours of his time is because (again) Carreon himself "made clear his intention to litigate each and every possible issue; hence the motion anticipated many possible arguments, including issues to which Mr. Carreon had alluded in explaining why he was not willing to stipulate to any award of expense for service."
It may well be that, in retrospect, defendant Carreon regrets his conduct; certainly the private email he cites in his affidavit was beyond the pale. Still, it is understandable that his own conduct provoked some public criticism. First, he sent a demand letter to Matthew Inman on behalf of a client claiming defamation, even though the client had no valid grounds to complain. Then, when Inman made fun of Mr. Carreon by starting a fund-raising campaign to raise the demanded amount as a donation to charity—and after that fundraising effort went viral—Mr. Carreon brought a frivolous lawsuit against Inman, against the ISP that hosted the fund-raising campaign, and against the American Cancer Society and National Wildlife Federation, the charities to whom Inman had promised to send the public’s donations. This is the conduct that prompted the outpouring of negative commentary to which defendant’s affidavit vaguely refer. And when plaintiff Recouvreur started an anonymous, satirical web site to comment about the controversy, Mr. Carreon threatened to sue both plaintiff and the company through which plaintiff had registered his domain name.
Although Public Citizen agreed to take this case because the litigation that Mr. Carreon was threatening related to several legal issues in which Public Citizen is interested, it hoped to avoid the need for litigation. Having supported Mr. Carreon’s position in a recent case with an amicus brief, it hoped to avoid the need to litigate by reasoning with Mr. Carreon privately. Before any papers were filed, Mr. Levy telephoned Mr. Carreon to discuss the legal issues, calling his attention to the legal reasons why Mr. Carreon’s claims could not possibly succeed, and then followed up the phone call with an enumeration of cases. It was in response to this effort to avoid litigation that Mr. Carreon responded with the strong threat to litigate, to string out litigation, to seek high levels of monetary relief, to delay filing suit for years, in the hope that Public Citizen would no longer be interested in representing Mr. Recouvreur by then, and to file in a jurisdiction that had not yet adopted the legal principles followed in the Ninth Circuit. In light of the fact that Mr. Carreon had already filed his frivolous suit against Inman, which was still pending (it was dismissed shortly after this action was filed, but not before forcing those defendants to incur substantial attorney fees), plaintiff and his counsel took Mr. Carreon’s threats seriously, and accordingly filed this action for a declaratory judgment of non-infringement. Mr. Carreon’s evasion of service, and his refusal to pay the expenses of service until this motion was filed, were simply a continuation of the pattern of abusing judicial process that created the need for this litigation in the first place.
As an officer of the Court, Mr. Carreon should have known better when he began his course of abusive conduct. Although Mr. Carreon now expresses regret that he chose not to execute a waiver of service, nor to “expose [him]self to service,” nor to pay the service expenses when requested, and that this pattern of conduct subjected the Court to motion proceedings in connection with plaintiff’s service efforts, such apologies do not excuse the extra work that his conduct needlessly imposed on plaintiff and his counsel. Plaintiff’s counsel tried to avoid the need to effect service, not only mailing waiver of service forms but also expressly informing Mr. Carreon, by email, that a waiver of service form was coming in the mail.... Counsel also tried to avoid the need to file this motion, by calling Mr. Carreon to meet and confer and discussing with Mr. Carreon the law that requires payment of service expenses. Mr. Carreon refused, first making spurious arguments,... and then resorting to bluster, this time threatening to sue plaintiff’s counsel for not acquiescing in his demands.
In other words: the Carreon Effect is still going on. Even in almost completely capitulating to the key aspects of the case, Carreon can't help but dig his own hole deeper.