First Time Videos, LLC v. Does 1-76

Filing 63

ORDER denying the motions for protective order and/or to quash subpoena in [39,40,45,46,47 and 49]; REPORT AND RECOMMENDATION recommending that [40, 45, 46 and 48]MOTIONs to Dismiss be denied and recommending that 39 MOTION to Dismiss be denied as moot. ( Objections to R&R due by 12/10/2012) Signed by Magistrate Judge John J. O'Sullivan on 11/21/2012. (mms)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-20921-CIV-LENARD/O'SULLIVAN
FIRST TIME VIDEOS, LLC,
Plaintiff,
v.
DOES 1 - 76,
Defendants.
/
ORDER AND RECOMMENDATION1
THIS MATTER is before the Court on the following motions:
1. John Doe ’s Motion to Dismiss Complaint Against Defendant John Doe
and Quash Subpoena Against Same (DE# 39, 7/19/12);
2. John Doe 65.34.132.140 's Motion to Dismiss Complaint Against
Defendant John Doe 65.34.132.140 and Quash Subpoena Against Same (DE# 40,
7/25/12);
3. John Doe 68.231.208.27 's Motion to Dismiss Complaint Against
Defendant John Doe 68.231.208.27 and Quash Subpoena Against Same (DE# 45,
8/5/12);
4. John Doe 69.133.87.42 's Motion to Dismiss Party for Improper Venue,
Motion to Quash Subpoena, Motion for Protective Order, Motion to Sever for Improper
Joinder, Motion to Dismiss for Failing to State a Cause of Action (DE# 46, 8/16/12); and
5. Motion to Quash and/or Vacate Subpoena and Incorporated

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This Order and Recommendation is substantially similar to the Order and Recommendation filed on
June 28, 2012 (DE# 27, 6/28/12). The Recommendation remains pending.

Memorandum of Law (DE# 47, 8/17/12) filed by Mark Russ, pro se2.
6. Motion to Dismiss for Lack of Personal Jurisdiction and Incorporated
Memorandum of Law (DE# 48, 8/17/12) filed by Mark Russ, pro se.
7. Motion for Protective Order (DE# 49, 8/17/12) filed by Mark Russ,
pro se.
Having reviewed the motions, responses and replies, it is
ORDERED AND ADJUDGED that the motions for protective order and/or to
quash subpoena (DE# 39, 40, 45, 46 and 47) are DENIED. The undersigned finds that
there is a minimal expectation of privacy for information provided to internet providers.
See Boy Racer, Inc. v. John Does 1-34, 2012 WL 1535703, * 4 (S.D. Fla. 2012)
(“[I]ndividuals who use the Internet to download or distribute copyrighted works are
engaged in only a limited exercise of speech and the First Amendment does not
necessarily protect such persons’ identities from disclosure.”) (quoting AF Holdings,
LLC v. Does 1-162, No. 11-23036-CIV, 2012 WL 488217, * 3 (S.D. Fla. Feb. 14,
2012)(citations omitted)). The requested information is directed to the internet service
provider, not the internet provider address, to obtain information necessary for the
plaintiff to establish the identity of the putative defendants. See AF Holdings, 2012 WL
488217 at * 3 (“A party to an action generally may not seek to quash or modify a
subpoena on behalf of the non-party to which it was issued.”) (citation omitted). It is
further
ORDERED AND ADJUDGED that the Motion for Protective Order (DE# 49,

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Although this movant has chosen to identify himself in his motion, he is not a named party nor has he
been served with a subpoena or any other papers related to this case.

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8/17/12) filed by Mark Russ, pro se, is DENIED. Mr. Russ has not provided any
grounds that warrant the non-disclosure of his identity to the plaintiff when he identified
himself in the motions that he filed with this Court. It is further
RECOMMENDED that the motions to dismiss and/or to sever (DE# 40, 45, 46
and 48) be DENIED. The undersigned agrees with the AF Holdings decision, supra,
that the motions by the above-referenced Does and Mark Russ are premature as they
are not named defendants. It is further
RECOMMENDED that John Doe ’s Motion to Dismiss Complaint Against
Defendant John Doe and Quash Subpoena Against Same (DE# 39, 7/19/12) be
DENIED as moot. John Doe ’s Motion to Dismiss Complaint Against Defendant John
Doe (DE# 39, which was DE# 18, 7/19/12 in Case No. 12-cv-21952) became moot
when the plaintiff filed its First Amended Complaint (DE# 27, 7/31/12 in Case No. 12cv-21952).
The parties have fourteen (14) days from the date of receipt of this Report and
Recommendation within which to serve and file written objections, if any, with the
Honorable Judge Lenard, United States District Court Judge. Failure to file objections
timely shall bar the parties from attacking on appeal the factual findings contained
herein. See LoConte v. Dugger, 847 F. 2d 745 (11th Cir. 1988), cert. denied, 488 U.S.
958 (1988); See Also, RTC v. Hallmark Builders, Inc., 996 F. 2d 1144, 1149 (11th Cir.
1993).

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DONE AND ORDERED in Chambers at Miami, Florida this 21st day of
November, 2012.

Copies provided to:
United States District Judge Lenard
Counsel of Record

JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE

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