Attorneys File for Default Judgment Against Malibu Media

FORT LAUDERDALE, Fla. – In a motion filed Wednesday, the attorneys who formerly represented Malibu Media in the company’s nationwide mass copyright litigation campaign moved for final default judgment against Malibu “the amount of $299,298.16 plus reasonable attorney fees.”

The Lomnitzer Law Firm filed its complaint against Malibu on January 9. According to the motion for default judgment, Malibu was served with the complaint on January 12 and had until February 7 to file their response to the complaint.

“No response has been filed and no application for an extension of time has been filed,” Lomnitzer stated in its complaint.

In its motion for default judgment, Lomnitzer recounted the allegations which formed its complaint against Malibu, stating that the firm “provided legal services to Defendant pursuant to an Engagement Agreement including but not limited to coordinating litigation on behalf of Defendant on a nationwide basis, receiving settlements of such litigation, depositing such settlements into the Firm’s trust account, and paying certain fees and expenses in connection with Malibu’s litigation.”

“The Firm issued invoices to Malibu on a regular basis for the services provided to Malibu under the Engagement Agreement, paid some of the Firm’s invoices from the monies deposited into the Firm’s trust account, and remitted monies from the Firm’s trust account to Malibu,” Lomnitzer stated in its motion. “On or about October 31, 2018, the Firm and Malibu entered into an Addendum to the Agreement reflecting… the frequency of invoices to Malibu, the maximum amount of services to be invoiced each month, and the frequency of payments of the Firm’s invoices. The Firm issued invoices to Malibu on a regular basis for the incurred expenses in connection with the provision of those legal services.”

According to Lomnitzer, the agreement fell apart when Malibu started working with other attorneys and cutting Lomnitzer out of the action.

“Beginning at a date presently unknown, Malibu began a program of circumventing the Agreement, the Addendum, and the relationship between the Firm and Malibu by instructing attorneys in various jurisdictions that were representing Malibu in the nationwide litigation to by-pass the Firm and to remit settlement monies from such litigation other than to the Firm while still expecting the Firm to pay expenses incurred for and on behalf of and for the benefit of Malibu,” the law firms claimed in its motion.

In accounting for the $299,298.16 requested in its motion for default judgment, Lomnitzer said Malibu “currently owes Plaintiff, excluding interest, based on invoices listed in Exhibit A to the Complaint the amount of $262,549.92,” interest that accrued through 12/31/19 totaling $17,508.40, further interest for the period of 1/20/20 through 2/29/20 $7,876.50, the amount of $10,888.34 stemming from “various third-party invoices” and $475.00 for the cost of filing the current action against the company.

In its motion, Lomnitzer also stated that it received an email from attorney Jason Kotzker stating that “Ms. Pelissier has asked me to reach out to you to request a short extension of time within which to answer the complaint filed against Malibu Media, LLC.” (Colette Pelissier is identified as “the principal of Malibu and the person who signed the Engagement Agreement with Lomnitzer on behalf of Malibu.”)

“This firm will not be handling the matter, but is seeking the professional courtesy of the extension on behalf of the company. I believe a week or two would be sufficient,” Kotzker added in his email, according to Lomnitzer.

Later the same day, Lomnitzer said it received a voicemail an email from attorney David E. Rosen stating that he is counsel for Malibu Media.

“We are in the process of locating local counsel to defend the above-referenced action,” Rosen stated in his email, according to Lomnitzer’s motion. “Please let me know if you will agree to a 2-week extension of time to respond to the complaint.”

Lomnitzer said it responded to both emails the same day, but since then Lomnitzer “has not heard back from either attorney.”