Malibu Media, LLC v. Doe

Filing 11

MEMORANDUM AND ORDER DENYING 7 motion to dismiss and quash. Plaintiff has 45 days from the date of this order to serve Defendant. Signed by Judge Deborah K. Chasanow on 4/4/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MALIBU MEDIA, LLC
:
v.

:

Civil Action No. DKC 15-3614

:
JOHN DOE
:
MEMORANDUM OPINION AND ORDER
Plaintiff Malibu Media, LLC (“Plaintiff”) filed this action
for copyright infringement against a John Doe defendant (“Doe”).
Presently

pending

and

ready

for

resolution

is

a

motion

to

dismiss this action and quash a third-party subpoena filed by
Doe.

(ECF No. 7).

necessary.

The court now rules, no hearing deemed

Local Rule 105.6.

For the following reasons, Doe’s

motion to dismiss and quash will be denied.
I.

Background
The limited factual background in this case can be found in

a prior order granting Plaintiff’s motion for leave to serve a
third-party subpoena.

(See ECF No. 6).

Plaintiff alleges that

a single Doe defendant utilized the BitTorrent file distribution
network

to

download

adult

copyrights held by Plaintiff.
an

Internet

Protocol

address

pornographic

films

subject

to

Plaintiff identified Doe only by
(“IP

address”)

assigned

to

a

customer on a specific date by an Internet Service Provider

(“ISP”).

Accordingly, Plaintiff moved to expedite discovery and

serve a third-party subpoena on the ISP prior to a Rule 26(f)
conference in order to obtain the identity of Doe.

On December

2, 2015, the undersigned granted Plaintiff’s motion subject to
numerous conditions and limitations dictated by the sensitive
nature

of

this

action

and

the

specificity of IP addresses.

uncertainty

(ECF No. 6).

surrounding

the

The order allowed

Doe to proceed anonymously, but explained that Doe:
MUST PROVIDE his or her name and current
address to the Clerk of the Court so that
the Court may provide notice of the filings
to the Subscriber. This may be accomplished
by completing and mailing to the Clerk of
the Court the attached form.
This contact
information will not be disclosed to the
Plaintiff and will be used solely for the
purposes stated above.
The Court will not
decide any motions until the Doe Subscriber
has provided all required Information.
(Id. at 4).

On January 8, 2016, Doe filed the pending motion to

dismiss this action and quash the third-party subpoena (ECF No.
7), and Plaintiff responded (ECF No. 8).

Despite the court’s

explicit instructions in its December 2, 2015 order, Doe has not
provided the Clerk his or her name or any contact information.
II.

Analysis
Doe asserts that the subpoena must be quashed because: (1)

the alleged infringements occurred before Plaintiff registered
the

copyrights;

and

(2)

Defendant as the infringer.

the

IP

address

does

not

identify

Plaintiff contends a “self-serving
2

denial of liability” is not an appropriate basis for a motion to
quash under Federal Rule of Civil Procedure 45(d).
at 4-5).
order

(ECF No. 8,

Plaintiff further contends that the court’s prior

allowing

sufficient

to

the

subpoena

address

Doe’s

includes
concerns

protections
regarding

that

are

anonymity

and

reputational injury, and Plaintiff does not oppose Doe remaining
anonymous through the close of discovery.
Doe
denying

cannot

move

liability.

successfully
“[I]t

is

to

(Id. at 7).
quash

well-settled

the
that

subpoena
such

by

general

denials of liability cannot serve as a basis for quashing a
subpoena.”

Third Degree Films, Inc. v. Does 1-108, No. DKC-11-

3007, 2012 WL 669055, at *3 (D.Md. Feb. 28, 2012) (citation and
internal quotation marks omitted).
subpoena

would

allow

a

“For the court to quash the

subscriber

to

prevent

Malibu

from

pursuing a potentially valid claim simply by denying liability.”
Malibu Media, LLC v. Doe, No. MJG-14-0747, 2014 WL 7190812, at
*2 (D.Md. Dec. 16, 2014).

Moreover, Doe’s failure to provide

the court with the required contact information has made it
impossible

for

this

action

to

serving its third-party subpoena.
contact

information,

and

go

forward

without

Plaintiff

The court does not know Doe’s

therefore

cannot

provide

notice

of

filings or otherwise communicate with Doe.
The court appreciates the potential for undue reputational
harm should Doe’s identity be made public, particularly in light
3

of the possibility that the alleged copyright violations were
committed by someone other than Doe.

There is also potential

for a plaintiff to use the threat of reputational harm to abuse
these

lawsuits

and

coerce

settlements.

“But

those

concerns

adequately are addressed by the existing interplay of procedural
rules and this Court’s order.”
PWG-13-365,

2014

WL

7188822,

Malibu Media, LLC v. Doe, No.
at

*9

(D.Md.

Dec.

16,

2014).

“[D]espite having dozens of suits in this District, there is no
indication to date that Malibu has failed to comply with the
dictates of the Federal Rules and this Court’s orders, and so
there is no reason to depart from the procedures currently in
place

or

to

buttress

already are in place.”

the

protections

for

subscribers

that

Id.

The protections the court outlined in its December 2 Order
protect Doe’s privacy interests and ensure the case does not go
forward improperly.

That order provides that Plaintiff must not

disclose Doe’s identity publicly absent further order form the
court and “may only use it to determine whether, pursuant to
Rule

11(b),

it

has

sufficient

information

to

complaint” to name Doe as an individual defendant.
at 4-5).

amend

the

(ECF No. 6,

Further, “[a]ny amended complaint filed by Malibu

naming an individual defendant shall be filed so that the name
and any specifically identifying information is redacted from
the publically available court docket, with an unredacted copy
4

filed under seal.”1

(Id. at 5).

In addition, as has become

customary in this district through the adjudication of similar
cases,

Plaintiff

identified
Plaintiff

is

authorized

as

the

subscriber

may

not

conduct

to

to

depose

the

IP

further

the

individual

address.

discovery

Finally,

absent

a

court

order, and Plaintiff is prohibited from engaging in coercive
settlement negotiations.
Accordingly, it is this 4th
United

States

District

Court

for

day of April, 2016, by the
the

District

of

Maryland,

ORDERED that:
1.

The motion to dismiss and quash filed by Defendant

John Doe (ECF No. 7) BE, and the same hereby IS, DENIED;
2.

Plaintiff Malibu Media, LLC will have forty-five (45)

days from the date of this Order to serve Defendant (see ECF
Nos. 9; 10); and
3.

The

Clerk

will

transmit

copies

of

this

Memorandum

Opinion and Order to counsel for Plaintiff, and to Doe, if he or
she provides contact information.

/s/
DEBORAH K. CHASANOW
United States District Judge

1

Doe also purports to seek a “protective order sealing and
preventing the disclosure of any information obtained through a
subpoena.”
(ECF No. 7, at 6).
This is not necessary because
the December 2 Order continues to grant Doe anonymity.
5