Malibu Media, LLC v. Doe

Filing 48

ORDER: Defendant's Motion to Dismiss Plaintiff's Amended Complaint for Failure to State a Claim 29 is DENIED. Defendant has until and including May 5, 2015, to file his Answer to the Amended Complaint. Signed by Judge Virginia M. Hernandez Covington on 4/21/2015. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MALIBU MEDIA, LLC,
Plaintiff,
v.

Case No.

8:14-cv-2361-T-33TBM

MAURICE ADAMS,
Defendant.
______________________________/
ORDER
This cause is before the Court pursuant to Defendant
Maurice

Adams’

Motion

to

Dismiss

Plaintiff’s

Amended

Complaint for Failure to State a Claim (Doc. # 29), filed on
March 25, 2015. Plaintiff Malibu Media, LLC filed a Response
in Opposition to the Motion (Doc. # 41) on April 16, 2015.
For the reasons that follow, the Court denies Defendant’s
Motion.
I.

Background
On September 17, 2014, Plaintiff filed a one count

Complaint against John Doe, the subscriber of the IP address
96.228.225.164 alleging copyright infringement. (See Doc. #
1). In order to identify the subscriber assigned to IP address
96.228.225.164, Plaintiff sought, and was granted, leave to
serve a third-party subpoena on Defendant’s Internet Service
Provider. (Doc. ## 5, 7).

On

January

30,

2015,

Plaintiff

filed

an

Amended

Complaint naming Maurice Adams as Defendant in this action.
(Doc. # 12). Defendant filed the present Motion to Dismiss on
March 25, 2015, which is ripe for this Court’s review.
II.

Legal Standard
On a motion to dismiss, this Court accepts as true all

of the factual allegations in the complaint and construes
them in the light most favorable to the plaintiff. Jackson v.
Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further, this Court favors the plaintiff with all reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Further, courts are not “bound to accept

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as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
In

accordance

with

Twombly,

Federal

Rule

of

Civil

Procedure 8(a) calls “for sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting
Twombly, 550 U.S. at 570). A plausible claim for relief must
include “factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
III. Analysis
To establish copyright infringement, “two elements must
be proven: 1) ownership of a valid copyright; and 2) copying
of constituent elements of the work that are original.” Dream
Custom Homes, Inc. v. Modern Day Const., Inc., 773 F. Supp.
2d 1288, 1301 (M.D. Fla. 2011) aff'd, 476 F. App'x 190 (11th
Cir. 2012)(citing Feist Publ’ns, Inc. v. Rural Tel. Serv.
Co., 499 U.S. 340 (1991)). Defendant seeks dismissal of this
action as “Plaintiff has failed to plead any factual content
allowing the [C]ourt to draw the reasonable inference that
the [D]efendant is liable for the misconduct alleged.” (Doc.
# 29 at 4)(internal quotation omitted).

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Defendant submits that “Plaintiff’s [Amended] Complaint
consists of a series of conclusory statements arranged to
support the already speculative conclusion that Defendant –
with

no

other

evidence

or

substantiation

other

than

geolocation software which can only identify IP addresses –
is

a

‘persistent

copyrights.’”
“[d]espite

(Id.

the

online
at

5).

infringer

Namely,

overwhelming

and

of

Plaintiff’s

Defendant
specific

argues
findings

that
and

admissions to the contrary, Plaintiff admittedly named the
Defendant as the alleged infringer simply because his name
may appear on the bill for the ISP account or the wireless
internet/Wi-Fi – though Plaintiff never even alleges this
fact

or

attempt

at

identification

in

their

Amended

Complaint.” (Id. at 9-10).
Furthermore, Defendant argues that “since an IP address
cannot identify a person, it certainly cannot identify a
person that actually committed a volitional act of direct
infringement.”

(Id.

at

11).

Therefore,

according

to

Defendant, “Plaintiff . . . certainly has not plead any facts
supporting an inference that Defendant actually engaged in
any volitional infringing activity, and thus lacks a good
faith

basis

for

asserting

copyright

against Defendant.” (Id.).

4

infringement

claims

As set forth in Malibu Media, LLC v. Roldan, No. 8:13CV-3007-T-30TBM, 2014 WL 3805494, at *2 (M.D. Fla. Aug. 1,
2014):
While it may be true that the IP subscriber . . .
is not undoubtedly the infringing individual, the
Plaintiff's burden at this stage is only to
demonstrate plausibility. See Iqbal, 556 U.S. at
678–79; cf., Malibu Media, LLC v. John Does 1–16,
902 F. Supp. 2d 690, 698 (E.D. Pa. 2012) (“The Court
acknowledges,
however,
that
the
information
provided by the ISPs in response to the subpoenas
will not necessarily reveal the identities of the
actual infringers, but may, with other discovery,
lead to the infringers' identities.”). To that end,
Plaintiff has alleged a plausible link between the
subscriber assigned to IP address 96.58.134.12,
Defendant, and the copyright infringement, and any
factual disputes are inappropriate at this stage.
See Malibu Media LLC v. John Does 1–11, No. 12 Civ.
3180(ER), 2013 WL 3732839, at *3–4 (S.D.N.Y. July
16, 2013) (finding plaintiff adequately pled a
plausible claim of copyright infringement); Malibu
Media, LLC v. Pelizzo, No. 12–22768–CIV, 2012 WL
6680387, at *3–4 (S.D. Fla. Dec 21, 2012) (same).
Likewise, at this stage of the proceeding, Plaintiff has
sufficiently

alleged

a

claim

for

direct

copyright

infringement against Defendant. According to the Amended
Complaint, Plaintiff’s investigator, IPP International UG,
established a direct “TCP/IP connection” with Defendant’s IP
address. (Doc. # 12 at ¶ 17). “By providing the IP address
associated with the individual conducting the infringing

5

activity, Plaintiff set forth ‘factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.’” Malibu Media, LLC v.
Doe, No. 8:14-CV-2351-T-36AEP, 2015 WL 574274, at *2 (M.D.
Fla. Feb. 11, 2015)(quoting Iqbal, 556 U.S. at 678)(citation
omitted)).
At

this

stage

of

the

proceeding,

Plaintiff

is

not

required to show that Defendant “probably” committed the
alleged misconduct. Id. Rather, Plaintiff must only show
“more than a sheer possibility that [Defendant] has acted
unlawfully” — i.e., Plaintiff must show “plausibility.” See
Id. This Court has previously found that a defendant's IP
address is sufficient for purposes of stating a claim that
can survive a Rule 12(b)(6) motion to dismiss. See e.g., Doe,
2015 WL 574274, at *2. Furthermore, in the Amended Complaint
Plaintiff provides that “[b]y using Bit Torrent, Defendant
copied and distributed the constituent elements of each of
the

original

works

covered

by

the

Copyrights-in-Suit.

[However,] Plaintiff did not authorize, permit or consent to
Defendant’s distribution of its works.” (Doc. # 12 at ¶¶ 2728).
Therefore, for purposes of the Court’s present analysis,
Plaintiff has pled sufficient factual allegations to survive

6

Defendant’s Motion to Dismiss. At this time, the allegations
contained in the Amended Complaint provide fair notice to
Defendant of the copyright infringement claim brought against
him. Any factual disputes – specifically, as it relates to
the

IP

address

–

are

inappropriate

for

the

Court’s

consideration at this time. Defendant may raise this issue at
a later date, once the parties and this Court have the benefit
of discovery. As a result, Defendant’s Motion is denied.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant’s

Motion

to

Dismiss

Plaintiff’s

Amended

Complaint for Failure to State a Claim (Doc. # 29) is
DENIED.
(2)

Defendant has until and including May 5, 2015, to file
his Answer to the Amended Complaint.
DONE and ORDERED in Chambers, in Tampa, Florida, this

21st day of April, 2015.

Copies:

All Counsel of Record

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