Malibu Media, LLC v. John Doe subscriber assigned IP address 71.237.22.86
Filing
78
ORDER AFFIRMING AND ADOPTING 37 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE: Plaintiff's 31 Motion to Strike Defendant's Affirmative Defenses is GRANTED IN PART in that Defendant's second, third, fourth, fifth, seventh, nint h, and tenth affirmative defenses are STRICKEN. Plaintiff's Motion to Strike Defendant's Affirmative Defense is DENIED IN PART because Defendant's eight affirmative defense was properly alleged. By Judge Wiley Y. Daniel on 3/18/2015. (alowe)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.
13-cv-02385-WYD-MEH
MALIBU MEDIA, LLC,
Plaintiff,
v.
MIKE CUDDY,
Defendant.
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
THIS MATTER is before the Court on Plaintiff’s partially unopposed Motion to
Strike Defendant’s Affirmative Defenses (ECF No. 31), filed March 19, 2014. The motion
was referred to Magistrate Judge Michael E. Hegarty for a Recommendation by Order of
Reference (ECF No. 32). Magistrate Judge Hegarty issued a Recommendation (ECF
No. 37) on April 24, 2014, that the above referenced motion be granted in part and denied
in part. The Recommendation is incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(B); Fed. R. Civ. P. 72(b).
Magistrate Judge Hegarty advised the parties that they had fourteen (14) days to
serve and file written, specific objections to the Recommendation. On May 9, 2014,
Defendant Mike Cuddy filed a timely Objection (ECF No. 38) which necessitates a de
novo determination as to those specified proposed findings or recommendations to which
objection is made. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b). Plaintiff filed a
response (ECF No. 39) on May 23, 2014. For the reasons stated below, Defendant’s
Objection is overruled and Magistrate Judge Hegarty’s Recommendation is affirmed.
II.
BACKGROUND
On September 3, 2013, Plaintiff filed this action against then-John Doe Defendant
alleging copyright infringement on its copyrighted work. With regard to the instant
motion:
In accordance with the Court’s order, Plaintiff served a Rule 45 subpoena
on Defendant’s ISP and obtained his identity. Thereafter, Plaintiff filed an
Amended Complaint on December 4, 2013, naming Mr. Cuddy as a
Defendant. (Docket #16.) Defendant filed an Answer to Plaintiff’s
Amended Complaint on February 5, 2014, then filed an Amended Answer
on February 26, 2014 asserting fourteen (14) affirmative defenses and a
counterclaim for abuse of process. (Docket #29.) Plaintiff filed the
present motion to strike certain affirmative defenses listed in the Answer on
March 19, 2014. (Docket #31.) Defendant timely filed his response to the
motion on April 9, 2014 (docket #34) and Plaintiff its reply brief on April 23,
2014 (docket #35).
ECF No. 37, pp. 2-3.
On April 24, 2014, Magistrate Judge Hegarty recommended that the present
motion be granted in part to the extent that Defendant’s second, third, fourth, fifth,
seventh, ninth, and tenth affirmative defenses should be stricken. Id. at 14. It was
further recommended that the motion should be denied in part because Defendant’s
eighth affirmative defense was properly alleged. Id. Defendant now partially objects to
Magistrate Judge Hegarty’s Recommendation; namely, the portion striking Defendant’s
fourth affirmative defense. Defendant’s fourth affirmative defense asserts that “Plaintiff’s
claims are barred by the doctrine of unclean hands, including by purposefully neglecting
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to request identifying information from the service provider related to the IP address at
issue in this case for each alleged download of Plaintiff’s works.” ECF No. 29, p. 6.
III.
OBJECTION
In his Objection, Defendant argues that his fourth affirmative defense should not
be stricken “[b]ecause Plaintiff injured Defendant by improperly continuing this litigation
with evidence of only one alleged download, publicly labeled Defendant as one of the
‘worst of the worst’ and ‘most egregious repeat’ offenders, and falsely represented to the
court to obtain an ex parte order.” ECF No. 38, p. 6. In his Recommendation,
Magistrate Judge Hegarty set forth a detailed and comprehensive analysis supporting his
conclusion that “Defendant’s Amended Answer and briefing fail to identify any inequitable
conduct which is connected or related to the matters before the Court in this action.”
ECF No. 37, p. 11. He then recommended that Defendant’s fourth affirmative defense
be stricken.
Citing Plaintiff’s policy of only pursuing repeat offenders, Defendant objects to
Magistrate Judge Hegarty’s findings. With evidence of only one alleged download,
Defendant argues that he “would not be here defending himself and expending fees and
costs, as Plaintiff readily admits that it only sues ‘the worst of the worst infringers,’ and
‘only the most egregious repeat offenders are the targets.’” ECF No. 38, p. 2.
Defendant further asserts that “[o]ne alleged download does not qualify as the ‘worst of
the worst’ and serves no monetary incentive for the Plaintiff.” Id. Nonetheless,
“[a]nyone who violates any of the exclusive rights of the copyright owner as provided by
sections 106 through 122 . . . [of Title 17 of the United States Code] is an infringer of the
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copyright . . . .” 17 U.S.C. § 501(a). Thus, Plaintiff’s decision to continue this litigation
against Defendant with evidence of only one alleged download does not equate to
improper conduct.
Defendant further objects to the Recommendation by asserting that Plaintiff made
false representations to the court in seeking approval to serve a subpoena on
Defendant’s internet service provider (“ISP”) in order to obtain Defendant’s identity.
Defendant explains that in ex parte proceedings Plaintiff sought leave from the Court to
serve limited, immediate discovery on Defendant’s ISP because “the John Doe
Defendant’s IP address has been habitually used to infringe Plaintiff’s copyrighted
works.” ECF No. 38, p. 4 (emphasis omitted). In further support of Plaintiff’s request,
Defendant asserts that Plaintiff attached “a Statement of Deputy Assistant Attorney
General for the Criminal Division Jason Weinstein Before the House Subcommittee on
Crime, Terrorism, and Homeland Security, stating how ISP providers regularly destroy IP
assignment information.” Id.
Defendant contends that the foregoing is inconsistent with what Plaintiff now
claims in its reply to its Motion to Strike Defendant’s Affirmative Defenses. In its reply,
Plaintiff stated that “[t]here is no reason to believe that Comcast deleted any information
about the subject IP address as it pertains to the few weeks prior to the date listed on
Plaintiff’s subpoena.” Id. at p. 5 (emphasis omitted). Defendant then advances the
question: “Which is it? That there is an immediate need for the information from
Comcast or it will be destroyed as Plaintiff represented to this Court in order to obtain
Plaintiff’s ex parte order, or was there really no urgency since there is apparently no
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reason to believe Comcast deleted any information? Plaintiff cannot have it both ways.”
Id. Though Defendant questions the urgency of Plaintiff’s discovery request, I cannot
find that the representation, if indeed false, was improper based on the facts before me.
Finally, Defendant contends that Plaintiff’s conduct does “not correlate with what it
told the court initially to obtain the subpoena for the IP address.” ECF No. 38, p. 3.
Specifically, Defendant asserts that “despite alleging to the Court that there were twenty
(20) alleged infringements against Defendant, Plaintiff specifically requested identifying
information for only one alleged download of Plaintiff’s Works from the ISP.” ECF No.
38, p. 2. In Magistrate Judge Hegarty’s Order (ECF No. 10) granting in part Plaintiff’s
motion to serve a third party subpoena, he authorized Plaintiff to: “serve a third party
subpoena pursuant to Fed. R. Civ. P. 45 on the identified ISP with the limited purpose of
ascertaining the identity of the Doe Defendant.” ECF No. 10, p. 2. He further stated
that “[t]he subpoena shall be limited to providing Plaintiff with the name, address,
telephone number, and email address of the subscriber (Doe Defendant) to whom the
ISP has assigned an IP address.” Id. Since Magistrate Judge Hegarty’s Order did not
preclude requesting identifying information for only one alleged download, I find that
Plaintiff’s actions were not improper.
After carefully reviewing the record and relevant authority, I cannot conclude that
Magistrate Judge Hegarty erred in determining that Defendant’s fourth affirmative
defense should be stricken. Based on my careful de novo review as required by 28
U.S.C. § 636(b), I find that Magistrate Judge Hegarty thoroughly analyzed Defendant’s
fourth affirmative defense and correctly applied the legal standards applicable to the
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motion. Accordingly, I overrule Defendant’s Objection finding his arguments to be
unavailing.
Finally, since Defendant only objected to a portion of Magistrate Judge Hegarty’s
Recommendation, I review the balance of the Recommendation “under any standard [I]
deem[] appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see
also Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that “[i]t does not appear that
Congress intended to require district court review of a magistrate's factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings”). Nonetheless, though not required to do so, I review the Recommendation to
“satisfy [my]self that there is no clear error on the face of the record.”1 See Fed. R. Civ.
P. 72(b) Advisory Committee Notes. Having reviewed the Recommendation, I am
satisfied that there is no clear error on the face of the record. I find that Magistrate Judge
Hegarty’s Recommendation is thorough, well reasoned and sound. I affirm and adopt
Magistrate Judge Hegarty’s conclusion that the pending motion should be granted in part
and denied in part as set forth in both the Recommendation and this Order.
IV.
CONCLUSION
For the reasons stated above, it is
ORDERED that the Recommendation of United States Magistrate Judge (ECF No.
37) is AFFIRMED AND ADOPTED. Defendant’s Objection (ECF No. 38) is
1
Note, this standard of review is something less than a "clearly erroneous or contrary to
law" standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R.
Civ. P. 72(b).
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OVERRULED. Accordingly, it is
ORDERED that Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses (ECF
No. 31) is GRANTED IN PART in that Defendant’s second, third, fourth, fifth, seventh,
ninth, and tenth affirmative defenses are hereby STRICKEN. It is
FURTHER ORDERED that Plaintiff’s Motion to Strike Defendant’s Affirmative
Defenses (ECF No. 31) is DENIED IN PART because Defendant’s eighth affirmative
defense was properly alleged.
Dated: March 18, 2015.
BY THE COURT:
s/ Wiley Y. Daniel
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE
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