Case 1:11-cv-23035-DLG Document 36 Entered on FLSD Docket 03/08/2012 Page 1 of 5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 11-23035 GRAHAM/GOODMAN BOY RACER, INC., a foreign corporation Plaintiff, v. JOHN DOES 1-34, Defendants. ___________________________________/ PLAINTIFFS MOTION FOR SANCTIONS UNDER THE INHERENT POWER OF THIS COURT BOY RACER, INC. (BR) files this motion after reviewing a Notice of Filing Admission of Plaintiffs Counsel reply brief filed on March 6, 2012 by Joseph A. Yolofsky. Attorney Yolofskys characterization of a declaration made by Plaintiffs attorney in an unrelated matter is blatantly false, misleading to this Court, and made in bad faith. BRs counsel contacted Attorney Yolofsky to notify him of the issue and to allow him an opportunity to withdraw his false claim. Attorney Yolofsky refused to withdraw his erroneous pleading and stands by his false representation. BR asks this Court to exercise its inherent power to strike Attorney Yolofskys Notice of Filing Admission of Plaintiffs Counsel and impose other sanctions as it sees appropriate for this abuse of the judicial process. PROCEDURAL HISTORY After receiving a subpoena issued pursuant to the Courts order, Doe 32, through his counsel, filed a motion to quash third party subpoena or in the alternative motion for protective order. [ECF 16]. Plaintiff filed a memorandum of law opposing Doe 32s

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motions [ECF20]. The Movant requested an extension of time to reply, which was granted without objection, and then the Movant filed an Amended Motion to Quash [ECF 26]. Plaintiff responded to the Amended Motion. [ECF28]. Doe 32 then requested a second extension of time to file a reply to Plaintiffs response. [ECF 30]. Plaintiff filed its opposition to a second extension of time, which is pending before the Court. [ECF 33]. Doe 32 then filed a Notice of Filing Admission of Plaintiffs Counsel. [ECF 32]. Plaintiff files this motion for sanctions based on assertions made by Doe 32s counsel in his Notice of Filing Admission of Plaintiffs Counsel. LEGAL STANDARD This Court has an inherent power to fashion an appropriate sanction for conduct which abuses the judicial process. Chambers v. NASCO, Inc., 501 U.S. 32, 4445

(1991). Whereas other sanctioning mechanisms based on statute or rules reach only certain individuals or conduct, the inherent power extends to a full range of litigation abuses. Id. at 46. The Supreme Court has stressed that the inherent power must continue to exist to fill in the interstices. Id. But the Courts prior cases also have indicated that the inherent power of a court can be invoked even if procedural rules exist which sanction the same conduct. Id. ARGUMENT The Court should exercise its inherent power to strike Attorney Yolofskys Notice of Filing Admission of Plaintiffs Counsel because the entire purpose of Yolofskys Notice is to falsely state that Plaintiffs counsel has never named and served an infringer in any of its cases nationwide. The obvious implication being that Plaintiffs attorney is abusing the legal system. BR is without other remedy: a Rule 12(f) motion to strike

applies only to pleadings, not notices, and a Rule 11 motion requires a 21 day waiting

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period during which the Court may issue a decision based on erroneous statements of law. Fed. R. Civ. P. 12(f); id. 11(c)(2). Joseph Yolofsky falsely claims1 that Plaintiffs counsel has never named and never served a defendant in a copyright infringement casea claim easily belied by the authority discussed infra note 1. In his Notice of Filing Admission of Plaintiffs Counsel, Attorney Yolofsky relies entirely on Plaintiff attorneys response #9 in their Exhibit A, which states: Although our records indicate that we have filed suits against individual copyright infringement defendants, our records indicate that no defendants have been served in the below-listed cases. (Emphasis added). Attorney Yolofsky omits the critical prefatory clause underlined above to represent to this Court that Plaintiffs counsel has never named an infringer. Attorney Yolofsky would have had to notice this clause, because it is literally part of the sentence his entire representation relies upon. As Plaintiffs counsel made clear, the cases listed in question #9 were only the cases where no infringer has been named yet. Plaintiffs counsel makes it clear that there are other cases in which individual infringers have been served. Even a cursory review of PACER would demonstrate that Attorney Yolofsky failed to exercise appropriate diligence before filing his pleading.

Compare Attorney Yolofskys pleading alleging that Prenda Law has stated it has not ever served a single defendant . . . with Compl., Achte/Neunte Boll Kino v. Michael Famula, No. 110903 (N.D. Ill. Feb. 9, 2011), ECF No. 1 (naming and serving Michael Famula as a defendant); Compl., Achte/Neunte Boll Kino v. Daniel Novello, No. 11-0898 (N.D. Ill Feb. 9, 2011), ECF No. 1 (naming and serving Daniel Novello as a defendant); Amend. Compl., Boy Racer, Inc. v. Philip Williamson, No. 11-3072 (N.D. Cal. Dec. 12, 2011), ECF No. 7 (naming and serving Philip Williamson as a defendant); First Amend. Compl. Hard Drive Productions, Inc. v. Syed Ahmed et al., No. 11-2828 (N.D. Ill. Oct. 25 2011), ECF No. 23 (naming and serving Syed Ahmed as a defendant).
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Yolofskys actions are in bad faith because this Court only has limited time to review pleadings filed in other cases throughout the country. In this instance, Attorney Yolofsky converted Plaintiffs counsels clear statement of of all the cases filed, 118 of them do not have an infringer named yet to a much different proposition, that all 118 cases ever filed by Plaintiffs counsel do not have an infringer named. This attempt to mislead the Court is an abuse of judicial process and the Court should exercise its inherent power to strike CONCLUSION This Court has inherent power to fashion a sanction for abuse of judicial process, including for abuses which do not fall within the framework created by the Rules of Civil Procedure. The Court should exercise that power to strike portions of Attorney

Yolofskys Notice of Filing Admission of Plaintiffs Counsel because they misstate the law in a way that is misleading to the Court, and were made in bad faith and impose any other sanctions it deems fit.

Respectfully Submitted, Boy Racer, Inc., Dated March 8, 2012, By: /s/ Joseph Perea_ Joseph Perea (FBN 47782) Prenda Law, Inc. 1111 Lincoln Rd., Ste 400, Miami Beach, FL 33139 Tel: 305-748-2102 Fax: 305-748-2103

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CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on March 8, 2012, we electronically filed a true and correct copy of the foregoing MOTION FOR SANCTIONS UNDER THE INHERENT POWER OF THIS COURT with the Clerk of Court using CM/ECF. We also certify that the foregoing document is being served this day on all counsel of record via transmission of Notice of Electronic Filing generated by CM/ECF.

By: /s/ Joseph Perea fbn 47782