United States District Court, D. Maryland, Southern Division
PAUL W. GRIMM, District Judge.
Plaintiff filed this action for copyright infringement arising out of the unauthorized download and distribution of copies of Plaintiff's numerous pornographic films using the BitTorrent file distribution network. Plaintiff initially identified Defendant only by his IP address and, with leave of the Court, was able to obtain his identity by subpoenaing records from Defendant's internet service provider. Defendant has moved to dismiss on the basis that his IP address alone is an insufficient basis on which to allege that he was the infringer of any copyrights. Plaintiff has responded, arguing that under Fed.R.Civ.P. 8, it is plausible that the subscriber associated with an IP address is the infringer and that Plaintiff has a good-faith belief that Defendant is the infringer after briefly deposing him. I agree with Plaintiff and deny the motion.
Plaintiff Malibu Media, LLC (d/b/a X-Art.com) ("Malibu") filed this action alleging that Defendant violated its copyrights in 131 pornographic films (the "Films") through his use of the BitTorrent file distribution network. Am. Compl. ¶¶ 30-34, ECF No. 37. Malibu filed its initial complaint naming a Doe Defendant, Compl., ECF No. 1, and shortly thereafter filed a Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference ("Pl.'s Mot. for Expedited Discovery"), ECF No. 4, and supporting Memorandum ("Pl.'s Discovery Mem.") in which Malibu stated that it had been able to determine that its copyrighted films were downloaded over the BitTorrent network by a subscriber at a particular internet protocol ("IP") address, but that Malibu could not identify and serve the subscriber without subpoenaing his internet service provider ("ISP"), Pl.'s Discovery Mem. 3.
Following several communications with counsel and a hearing before Judge Roger W. Titus and me, I issued the order that, with minor modifications, has become the template for all of Malibu's many cases in this Court. See Order, ECF No. 31. The Order recognized "concerns... as to the sufficiency of the allegations of complaints because association of an IP address with a customer may be insufficient to state a claim, " and "reports of plaintiffs undertaking abusive settlement negotiations with Doe Defendants due to the pornographic content in the copyrighted works, the potential for embarrassment, and the possibility of defendants paying settlements even though they did not download the plaintiff's copyrighted material." Id. at 2 (footnotes omitted). To guard against these pitfalls, the Order allowed Malibu to subpoena Defendant's ISP but established a number of procedural protections for Defendant, including the opportunity to move to quash the subpoena before his ISP responded, protection from disclosure of his or her identity, and a prohibition against Malibu initiating settlement communications with an unrepresented Defendant. Id. ¶¶ 3-5. In addition, to minimize the possibility that Malibu would proceed against an innocent subscriber not responsible for the alleged infringement, Malibu was given permission to conduct a brief, one-hour deposition of the subscriber "regarding whether the Subscriber was responsible for downloading the copyrighted work." Id. ¶¶ 4.a-c.
Shortly after the Order granting Plaintiff's Motion for Expedited Discovery was entered, Malibu filed an Amended Complaint adding, inter alia, additional allegations of infringement by Defendant, see Redlined Am. Compl., Am. Compl. Supp., ECF No. 37-5, and a Second Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference ("Pl.'s 2d Mot. for Expedited Discovery"), ECF No. 38, which was granted on October 7, 2013, Order, ECF No. 41. As amended, Malibu's complaint alleges that Defendant has infringed the copyrights in 131 individual films.
On December 9, 2013, Malibu received a response to its subpoena identifying the Doe Defendant as [REDACTED]. Pl.'s Mot. for Leave to File 2d Am. Compl. ("Pl.'s Mot. to Am.") ¶ 3, ECF No. 46. Pursuant to the Order, Malibu deposed Defendant on March 7, 2014. Pl.'s 3d Mot. for Extension of Time Within Which It Has to Serve John Doe Def. With a Summons and Compl. ("Pl.'s 3d Mot. to Extend") ¶ 4, ECF No. 42. After reviewing the deposition and "determin[ing] that the subscriber is most likely the infringer, " Pl.'s 4th Mot. for Extension of Time Within Which It Has to Serve John Doe Def. with a Summons and Compl. ("Pl.'s 4th Mot. to Extend") ¶ 5, ECF No. 44, Malibu obtained a waiver of service from Defendant's counsel, Waiver of Service, ECF No. 45, and filed a motion to amend the complaint to name the subscriber as the Defendant under seal, Pl.'s Mot. to Am. Defendant has not filed a response to the Motion to Amend, and the time to do so has passed. Loc. R. 105.2.
On June 9, 2014, Defendant filed a Motion to Dismiss Second Amended Complaint ("Def.'s Mot. to Dismiss"), ECF No. 49, accompanied by a supporting Memorandum ("Def.'s Dismiss Mem."), ECF No. 50. Because Plaintiff's Second Amended Complaint has not yet been accepted by the Court but contains only minor changes from the first Amended Complaint, I will construe Defendant's Motion to Dismiss as a motion to dismiss the operative Amended Complaint. Malibu filed an opposition ("Pl.'s Dismiss Opp'n"); Defendant has not replied and the time to do so has passed. Loc. R. 105.2. Having reviewed the filings, I find a hearing is not required.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides for "the dismissal of a complaint if it fails to state a claim upon which relief can be granted." Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule's purpose "is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'" Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), and must state "a plausible claim for relief, " as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, " Iqbal, 556 U.S. at 678-79; see also Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663.
When reviewing a motion to dismiss, "[t]he court may consider documents attached to the complaint, as well as documents attached to the motion to dismiss, if they are integral to the complaint and their authenticity is not disputed." Sposato v. First Mariner Bank, No. CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013); see also CACI Int'l v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009).
A. Motion to Dismiss
Defendant does not dispute that the factual allegations in Malibu's Amended Complaint are sufficient to state a claim for copyright infringement. Pl.'s Dismiss Mem. 5. Rather, he argues that Malibu has failed to state a claim against him because the mere fact that the Films were downloaded by a person at his IP address is "insufficient to state a ...