Shirokov v. Dunlap, Grubb & Weaver PLLC et al

Filing 51

Opposition re 46 MOTION to Dismiss the Second Amended Class Action Complaint filed by Dmitriy Shirokov. (Sweet, Jason)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
DMITRIY SHIROKOV, on behalf of himself
)
and all others similarly situated,
)
)
Plaintiff,
)
)
v.
)
)
DUNLAP, GRUBB & WEAVER, PLLC;
)
US COPYRIGHT GROUP; THOMAS DUNLAP; )
NICHOLAS KURTZ; GUARDALEY, LIMITED; )
and ACHTE/NEUNTE BOLL KINO
)
BETEILIGUNGS GMBH & CO KG,
)
)
Defendants.
)
___________________________________________)

Civ. A. No. 1:10-cv-12043-GAO

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT ACHTE/NEUNTE BOLL KINO BETEILIGUNGS GMBH & CO. KG’S
MOTION TO DISMISS THE SECOND AMENDED CLASS ACTION COMPLAINT
Plaintiff Dmitriy Shirokov (“Plaintiff”) respectfully submits this response in opposition to
Defendant Achte/Neunte Boll Kino Beteiligungs Gmbh & Co Kg’s (“Achte” or “Moving
Defendant”) Motion to Dismiss the Second Amended Class Action (ECF No. 46) and its
supporting memorandum of law (ECF No. 48, “Motion to Dismiss” or “MTD”), both filed May
23, 2011. 1 For the reasons given in the following memorandum, the MTD should be denied.

1

In addition to the reasons given in this memorandum, Achte’s motion should be denied because it was
not filed timely. A complaint and summons were timely served on Achte on April 18, 2011. Achte then
was obligated to answer the complaint within 21 days, by May 9, 2011. Fed. R. Civ. P. 12(a)(1)(A)(i). It
did not file an answer timely then; rather, Achte filed its notice of appearance on May 12, 2011. Dkt No.
38. Also on May 12, Achte filed an assented-to motion to extend its time to respond to the complaint to
May 18, 2011. ECF Nos. 38 & 39. But Achte did not file the instant motion until May 23, 2011, five days
after the already-extended deadline for its answer.

INTRODUCTION
Moving Defendant defrauded Plaintiff and thousands of similarly situated individuals
(collectively, the “proposed Class” or the “Class”). Achte’s copyright in its motion picture Far Cry
was registered untimely, rendering it ineligible for awards of statutory damages or attorney’s fees
against any infringers. Despite this knowledge, Achte and its co-defendants acting as Achte’s
agents and/or co-conspirators—Dunlap, Grubb & Weaver, PLLC (“DGW”), US Copyright Group
(“USCG”), Thomas Dunlap (“Dunlap”), Nicholas Kurtz (“Kurtz”), and Guardaley, Limited
(“Guardaley”)—misrepresented its rights to the Copyright Office, federal courts, and Class
members. Achte cannot sustain its burden on its MTD, which seeks to deny Plaintiff’s injury and
the well-pleaded claims in Plaintiff’s Second Amended Class Action Complaint and Jury Demand
(ECF No. 26; “Second Amended Complaint” or “SAC”).
Most of Moving Defendant’s arguments parrot arguments presented in motions to dismiss
the SAC brought by its co-defendants DGW, USCG, Dunlap, and Kurtz (ECF No. 29, “DGW
Motion”) and by Guardaley (ECF No. 44), elsewhere refuted by Plaintiff. To avoid further
duplication, Plaintiff will adopt arguments made in its opposition to the DGW Motion (ECF No.
32, “Opposition”).
STATEMENT OF FACTS
Achte is a German film production and distribution company that claims to own the
copyright for the motion picture Far Cry. SAC ¶ 91, MTD p. 1. It is owned, in whole or in part, by
Uwe Boll (“Boll”), Far Cry’s director and producer. See SAC ¶ 92. Boll has made dozens of films

2

through Achte and/or other production companies that typically bear his name.2 Boll’s film
copyrights have generally been registered with the U.S. Copyright Office prior to their release
dates. Id. ¶ 91.3 But it failed to timely register Far Cry. Id. ¶¶ 93, 95-96. Achte released Far Cry in
German theaters on October 2, 2008, and in United States theaters on December 17, 2008. Id. ¶¶
99-100. Far Cry was released on DVD in the Netherlands on April 14, 2009; in the United
Kingdom on September 7, 2009; and in Italy on October 14, 2009. Id. ¶¶ 101-103. The United
States DVD release was on November 24, 2009. Id. ¶ 104. Achte’s copyright registration
application for Far Cry followed the film’s first release by more than three months, so Achte
cannot seek statutory damages or attorney’s fees for any act of infringement that commenced
before that date, pursuant to Section 412 of the Copyright Act (17 U.S.C. § 412).4 Id. ¶¶ 9, 45,
95-96, 114, 128-129. But it has falsely persisted in doing just that. SAC ¶¶ 134, 141-143, 145-147,
154-160, 169-171, 179, 185, 187, 189-194 & Exhs. L, M, N, & P.
Achte’s January 19, 2010 registration application falsely claimed that Far Cry was first
published on November 24, 2009 in the United States5—giving the false impression that it was
2

Boll’s pre-Far Cry oeuvre included Sanctimony (copyright registered Sept. 8, 2000 to Boll Kino
Beteiligungs, GmbH & Company KG); Heart of America (registered Feb. 13, 2002 to Dritte Boll KinoBeteiligungs, GmbH & Co. KG); House of the Dead (registered July 7, 2003 to 3 Boll KINO
Beteiligungs, GmbH und Co., KG); Alone in the Dark (registered March 19, 2004 by Dritte Boll Kino
Beteiligungs, GmbH & Co. KG); Bloodrayne (registered April 11, 2005 to Vierte Boll Kino Beteiligungs,
GmbH & Co. KG ); Postal (registered July 5, 2007 to Achte Boll Kino Beteiligungs, GmbH und Co., KG
and Neunte Boll Kino Beteiligungs, GmbH und Co., KG); Seed (registered July 5, 2007 to Achte Boll
Kino Beteiligungs, GmbH und Co., KG and Neunte Boll Kino Beteiligungs, GmbH und Co., KG); In the
Name of the King: A Dungeon Siege Tale (registered Aug. 13, 2007 to Fuenfte Boll Kino Beteiligungs
GmbH & Co. KG on basis of assignment from claimed author Vierte Boll Kino Beteiligungs GmbH &
Co. KG).
3

See also footnote 2 supra.

4

Achte may pursue any actual damages suffered, not statutory damages or attorney’s fees. 17 U.S.C. §§
412, 504(a); SAC ¶¶ 107, 227.
5

Boll’s pre-Far Cry copyright registration applications typically made mention of the pre-existing source
material that served as the basis of the film applied for. For example, the copyright registration for Boll’s
motion picture Sanctimony states the pre-existing registration of its screenplay. Likewise, pre-existing
copyright registration information can be found in the following Boll motion picture registrations: Postal,
In the Name of the King: A Dungeon Siege Tale, Seed, Alone in the Dark, and House of the Dead. The Far
Cry application omitted such references to its prior history.
3

registered within Section 412’s three-month savings clause. Id. ¶¶ 11, 105, 109. The application
was filed on Achte’s behalf by its counsel, Thomas Dunlap, a DGW managing partner. Id. ¶¶ 10,
36, 94, 111. The registration certificate issued by the Copyright Office reflected that materially
false information. Id. ¶¶ 112, 124-125 & Exh. J. Pursuant to Section 412, the registration certificate
would not have appeared to support claims for statutory damages or attorney’s fees if it had stated
the true publication history. Id. ¶¶ 109, 125-126
USCG, DGW’s partnership with Guardaley, advertises itself as providing the film industry
a means to collect copyright infringement claim settlements far in excess of any actual damages
suffered, while avoiding trials on the merits. SAC ¶¶ 75-82. Achte employs DGW to provide the
USCG settlement business model. SAC ¶¶ 39, 91. Through DGW, USCG, and the other
defendants, Achte has falsely persisted in pressing claims against Class members for remedies that
it knows have no merit. Achte, and/or other defendants acting at its direction, retained GuardaLey
to identify alleged infringers of the Far Cry copyright. SAC ¶¶ 133, 198. Acting through its codefendants, Achte has alleged that 4,577 individuals (the Class), including Plaintiff, have infringed
its copyright by downloading and/or uploading Far Cry without permission. Id. ¶ 143 & Exh. M.
Achte initiated a lawsuit (the “Achte action”) in the United States District Court for the
District of Columbia by filing a complaint on March 18, 2010, alleging copyright infringement by
2,094 Class members, including Plaintiff, listing their IP addresses and alleged dates and times of
infringement. Id. ¶¶ 134, 138-139. Achte’s counsel DGW sought subpoenas from that court, which
they then issued to the Class members’ Internet Service Providers (“ISPs”). SAC ¶ 135-136. On
behalf of Achte, DGW sent a letter signed by Kurtz to Plaintiff and to each other Class member
whose address was provided by the ISPs, describing the copyright infringement lawsuit against
them and claiming an intention to seek remedies, including statutory damages of up to $150,000
and attorney’s fees, if the claim was not settled. Id. ¶¶ 136-137, 158-184 & Exh. N. On May 12,

4

2010, Achte filed an amended complaint in the Achte action against all 4,577 members of the
Class. Id. ¶ 142 & Exh. M.
Almost none of the Class members were subject to jurisdiction in the District of Columbia,
where the Achte action was filed. SAC ¶¶ 199-201, 213. Many Class members informed the Court
in the Achte action that they lived in remote locations and/or moved to dismiss on jurisdictional
grounds, and the Court ordered Achte to show cause why those outside its jurisdiction should not
be dismissed. Id. ¶ 204. On November 19, 2010 the Court, noting the jurisdictional issues, ordered
Achte to file a second amended complaint against only those Class members “over whom [Achte]
reasonably believes the Court has personal jurisdiction and whom it wants to sue” or otherwise
continued to claim as subject to that Court’s jurisdiction. Id. ¶ 208. On November 24, 2010,
Plaintiff filed his proposed class action against Achte and its co-defendants, seeking redress for
their fraudulent pursuit of remedies barred by the Copyright Act. Id. ¶ 210. On December 6, 2010,
Achte, by and through the Moving Defendants, filed a second amended complaint making a single
Class member a named defendant and alleging infringement by 139 unnamed others, and filed a
notice of dismissal of its claims against all other 4,437 members of the Class, including Defendant.
Id. ¶ 209. Since those claims were dismissed, and after Plaintiff filed this class action, Achte has
filed an additional sixteen lawsuits against select Class members individually.6 Id. ¶¶ 212, 214.
Achte filed four of those lawsuits in the United States District Court for the District of
Massachusetts 7 on February 16, 2011, and another four the next day in the United States District
Court for the Middle District of Florida.8
6

Achte had filed eight such individual infringement suits as of February 9, 2011, when Plaintiff’s Second
Amended Complaint was being prepared.
7

Achte v. Hennessy, Case No. 1:11-cv-10266; Achte v. Peatfield, Case No. 1:11-cv-10267; Achte v.
Plebaniak, Case No. 1:11-cv-10268; Achte v. Ross, Case No. 1:11-cv-10269 (each D. Mass. Feb. 16,
2011).
8

Achte v. Canales, Case No. 1:11-cv-00069; Achte v. Palmer, Case No. 1:11-cv-00070; Achte v.
Zimmerman, Case No. 1:11-cv-00071; Achte v. Felix, Case No. 1:11-cv-00072 (each M.D. Fla. Feb. 17,
2011).
5

Achte has been on notice that its claims for heightened damages are without merit since,
at latest, its first notice of the complaint in this action. But it has continued to pursue them. In the
Achte action (as originally filed in March 2010, and as amended in May and December) and in its
sixteen more recent lawsuits, and in its agents’ communications with the Class, Achte claims
entitlement to, and prays for relief including, statutory damages and attorney’s fees. Id. ¶¶ 216-217.
STANDARD OF REVIEW
“A motion to dismiss tests the legal sufficiency of the complaint, not the plaintiff’s
likelihood of ultimate success.” Canney v. City of Chelsea, 925 F. Supp. 58, 63 (D. Mass. 1996)
(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); Sheridan v. Int’l Bhd. of Elec. Workers,
Local 455, 940 F. Supp. 368, 372 (D. Mass. 1996). In evaluating a motion to dismiss under Fed.
R. Civ. P. 12(b)(6), the Court “must assume the truth of all well-plead[ed] facts and give the
plaintiff the benefit of all reasonable inferences therefrom.” Vernet v. Serrano-Torres, 566 F.3d 254,
258 (1st Cir. 2009) (quoting Ruiz v. Bally Total Fitness Holding Corp., 496 F. 3d 1, 5 (1st Cir.
2007)). “While a defendant may seek dismissal under Rule 12(b)(6) for failing to state a claim
upon which relief can be granted, a complaint only requires ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.’” Krasnor v. Spaulding Law Office, 675 F. Supp.
2d 208, 209 (D. Mass. 2009) (quoting Fed. R. Civ. P. 8(a)(2)). “According to the Supreme Court,
this means that a plaintiff must allege enough facts so that the claim is ‘plausible on its face.’” Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). That is, “the factual content
pled should ‘allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.’” Id. at 209-10 (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). “At
bottom, a complaint will survive a Rule 12(b)(6) dismissal if ‘the facts, evaluated in [the required]
plaintiff-friendly manner, contain enough meat to support a reasonable expectation that an
actionable claim may exist.’” Id. at 210 (quoting Andrew Robinson Int’l, Inc. v. Hartford Fire Ins.
Co., 547 F. 3d 48, 51 (1st Cir. 2008)).
6

A party alleging fraud “must state with particularity the circumstances constituting fraud.”
Fed. R. Civ. P. 9(b). Despite the particularity requirement, a plaintiff “need not plead all of the
evidence or facts supporting his claim.” United Air Lines v. Gregory, 716 F. Supp. 2d 79, 85 (D.
Mass. 2010). “Rule 9 requires a specification of the time, place, and content of an alleged false
representation, but not the circumstances or evidence from which fraudulent intent could be
inferred.” McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228 (1st Cir. 1996).
ARGUMENT
I.

The Noerr-Pennington Doctrine Does Not Affect Plaintiff’s Claims.

Despite Moving Defendant’s pleas, no court has read Noerr-Pennington so broadly as to
protect a party’s enforcement of an unlawful scheme consciously designed to defraud. None of
the cases cited by the Movant contain factual allegations similar to those asserted by Plaintiff. In
fact, Moving Defendant’s analysis ignores altogether the express allegations of the Complaint
and the issue of the fraudulently obtained registration—the bedrock for Movant’s “petitioning”
activities for which it now seeks immunity. Noerr-Pennington does not apply for several reasons.
First, Noerr-Pennington applies to antitrust liability. The Complaint does not make any
claim of antitrust violations. In the absence of such a claim, no such defense applies. 9
Second, Movant confuses Noerr-Pennington with the First Amendment. Noerr-Pennington
derives from a statute-specific analysis of the interaction between the Sherman Act and the First
Amendment and such an analysis will, of necessity, vary when applied to another statute.10 As

9

Moving Defendant argues Plaintiff “alludes” to antitrust in a single paragraph within the SAC. See MTD
p.11. First, Plaintiff would remind Movant that even if there is an “allusion” to antitrust law in the SAC, it
was not pled. Second, Movant is reading into what is a factual statement. The Copyright Office grants
registrations (or monopolies) and the Movant attempted to enforce one beyond the true scope of its rights.
10

BE&K Constr. Co. v. NLRB, 536 U.S. 516, 526-29, 531 (2002).
7

such, the Supreme Court applies Noerr-Pennington as an exception only to Sherman Act liability,11
employing the same analysis in all its post-Noerr jurisprudence.12
The Supreme Court reaffirmed this approach in BE&K Construction Co. v. NLRB, 536
U.S. 516 (2002). Summarizing the Noerr line of cases, the Court stated that “[t]his case raises the
same underlying issue of when litigation may be found to violate federal law, but this time with
respect to the NLRA rather than the Sherman Act,” and rendered its decision based on its earlier
statute-specific analysis of the interaction between the NLRA and the First Amendment in Bill
Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983) (noting that while the Court in
California Motor Transport Co., v. Trucking Unlimited, 404 U.S. 508, 510 (1972) construed the
right to petition in terms of antitrust laws, they “should be sensitive to these First Amendment
values in construing the NLRA.”).13 Similarly, Defendant’s own numerous lower court citations
support Plaintiff’s interpretation as controlling. See MTD pp. 9-10. Martin v. Gingerbread
House, Inc., 977 F.2d 1405, 1407 (10th Cir. 1992) (applying the First Amendment to the Fair
Labor Standards Act); Central Telecommunications, Inc. v. TCI Cablevision, Inc., 800 F.2d 711,
717, n.7 (8th Cir. 1986) (though poorly worded, “the defendant’s exercise of its first amendment
rights” is what the Court finds applicable outside of antitrust, not Noerr-Pennington.); Tomaiolo
v. Mallinoff, 281 F.3d 1, 11 (1st Cir. 2002) (discussing the application of the First Amendment,

11

See FTC v. SCTLA, 493 U.S. 411, 424 (1990) (stating that in Noerr the Court conducted a statutespecific analysis of the Sherman Act in the light of the First Amendment’s Petition Clause); Cardtoons v.
Major League Baseball Players Ass’n, 208 F. 3d 885, 889-90 (10th Cir. 2000); Coastal States Mktg., Inc.
v. Hunt, 694 F. 2d 1358, 1364-65 (5th Cir. 1983) (“Noerr was based on a construction of the Sherman Act.
It was not a First Amendment decision.”).
12

See, e.g., United Mine Workers of Am. v. Pennington, 381 U.S. 657, 660-61, 670 (1965); California
Motor Transp. v. Trucking Unlimited, 404 U.S. 508, 513-14 (1972); Allied Tube & Conduit Corp. v.
Indian Head, 486 U.S. 492, 499-500 (1988); Professional Real Estate Investors, Inc. v. Columbia Pictures
Industries, Inc., 508 U.S. 49, 52 (1993) (“PRE”).
13

BE&K Constr. Co. at 526.
8

not as Movant alleges Noerr-Pennington, to 42 U.S.C. § 1983). Moving Defendant’s reliance on
Sosa v. DirecTV, 437 F. 3d 923 (9th Cir. 2006) and Atlantic Recording Corp. v. Raleigh, No.
4:06-CV-1708, 2008 U.S. Dist. LEXIS 62977, *4-5 (E.D. Mo. Aug. 18, 2008) (both cases argue
for the expansion of Noerr-Pennington outside of antitrust) is likewise misplaced. As noted
above, the Supreme Court has repeatedly ruled against such doctrinal creep.14
Third, contrary to Movant’s hyperbole, no onerous deconstruction of the governmental
process is required in this case. Neither the doctrine nor the First Amendment applies because the
Plaintiffs’ remedy neither seeks to alter or burden any government regulation nor to restrain any
challenged communication. As reflected in the Supreme Court’s decision in Walker Process,15
immunity does not extend to conduct that—like the conduct in this case—can be fully remedied
without enjoining communications to government and without disrupting or burdening any
government program. Plaintiff only asks that the Movant not reap the benefits of its fraud.16
Fourth, under the First Amendment, the proper doctrine for assessing Movant’s conduct,
“the knowingly false statement, and the false statement made with reckless disregard of the truth,

14

See also Warnock v. State Farm Mut. Auto. Ins. Co., 2008 U.S. Dist. LEXIS 81507, *25 (S.D. Miss.
Oct. 14, 2008) (“This Court can find no other circuit that has followed the Ninth Circuit's lead, and it
declines to do so without direction from the Fifth Circuit Court of Appeals.”); Buck’s Inc. v. Buc-ee’s, Ltd.,
2009 U.S. Dist. LEXIS 53861, *24 (D. Neb. June 25, 2009); see also Cardtoons, 208 F. 3d at 889-90.
15

Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172 (1965). There is no principled
reason why Walker Process should be limited solely to the patent context. See Knickerbocker Toy Co.,
Inc., v. Winterbrook Corp., in which the First Circuit stated that “[f]raudulent procurement of a copyright
by means of knowing and willful misrepresentations to the Copyright Office may strip a copyright holder
of its exemption from the antitrust laws.”30
16

See MTD p. 11 n.2: 1) Movant confuses posessing a copyright with a valid copyright registration. A
valid registration entitles one to seek relief in federal court as well as move for statutory damages and
attorney’s fees. A copyright by itself does not. (17 U.S.C. § 412); 2) Plaintiff need not deny anything.; and
3) A prima facie registration is neither conclusive nor irrefutable.
9

do not enjoy constitutional protection.”17 “There is no first amendment protection for furnishing
with predatory intent false information to an administrative or adjudicatory body.” Clipper
Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1261 (9th Cir. 1982); see
also Walker Process, 382 U.S. at 174.
One cannot cleanse unlawful conduct by conducting the unlawful conduct through
a lawful medium. […] The right to petition a court does not include the right to
file a false or frivolous claim. “First Amendment rights may not be used as the
means or the pretext for achieving ‘substantive evils.’”
“The First Amendment interests involved in private litigation […] are not
advanced when litigation is based on intentional falsehoods or on knowingly
frivolous claims … [j]ust as false statements are not immunized by the First
Amendment right to freedom of speech … baseless litigation is not immunized by
the First Amendment right to petition.”18
Fifth, even if Noerr-Pennington applied, Moving Defendant’s deceptive conduct does not
amount to the type the doctrine intends to shield from liability. “[A] party that petitions the
government in good faith for redress is generally immune from antitrust liability under the
Noerr-Pennington doctrine, which protects the right to petition to governmental bodies.” Amgen
v. F. Hoffman-La Roche, Ltd., 480 F.Supp.2d 462, 469 (D. Mass.2007) (antitrust case recognizing
exceptions to Noerr-Pennington.)19 Plaintiff hereby adopts and incorporates by reference its
argument in opposition and the exceptions to Noerr-Pennington (ECF No. 32 at pp. 16-20).

17

Garrison v. Louisiana, 379 U.S. 64, 75 (1964). See also Illinois ex rel. Madigan v. Telemarketing
Assocs., 538 U.S. 600, 611 (2003) ("[T]he First Amendment does not shield fraud."); BE&K Constr., 536
U.S. at 530-31 (“false statements are not immunized by the First Amendment right to freedom of speech”)
(citation omitted).
18

Morrison v. Amway Corp. (In re Morrison), 2009 Bankr. LEXIS 1795, *22-23 (S.D. Tex. 2009)
(quoting California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972) and Bill Johnson’s.)
19

See MTD p. 11 n.3: Though Movant itself notes this case was not brought in state court, it nonetheless
attempts to raise the specter of the Massachusetts anti-SLAPP statute. The statute however, as Movant
acknowledges, is inapplicable to the case at hand and need not be discussed further.
10

In short, Noerr-Pennington does not apply because this is not an antitrust case. Even if it
were applied, its many applicable exceptions would provide Moving Defendant no shelter.
II. Plaintiff Sufficiently Pleaded Claims of Conspiracy and Aiding and Abetting.
“Massachusetts recognizes two types of civil conspiracy, so-called ‘true conspiracy’ and
conspiracy based on section 876 of the Restatement (Second) of Torts.” Taylor v. Am. Chem.
Council, 576 F.3d 16, 34 (1st Cir. 2009) (citing Kurker v. Hill, 44 Mass. App. Ct. 184, 188 (1998)).
“The first type requires proof of coercion; the second requires proof of a common plan to commit a
tortious act.” Smith v. Jenkins, 718 F. Supp. 2d 155, 171 (D. Mass. 2010) (citing Kurker). Plaintiff
properly pleaded both. SAC ¶¶ 384-390.
The elements of the first type (“true conspiracy”) are:
(1) some or all of the defendants[] acted in concert with others to accomplish an
unlawful purpose or to accomplish a lawful purpose by unlawful means; (2) as a
result of their acting together the defendants had some peculiar power of coercion
over [Plaintiff] they would not have had they each acted alone; and (3) the
defendant's actions proximately caused [Plaintiff’s] damages.
Fahey v. R.J. Reynolds Tobacco Co., 4 Mass. L. Rep. 21, 24 (Mass. Super. Ct. 1995) (denying
defendant motion for summary judgment on count of conspiracy for fraudulent concealment or
misrepresentation). True conspiracy lies “where the wrong was in the particular combination of
the defendants rather than in the tortious nature of the underlying conduct.” Kurker v. Hill, 44
Mass. App. Ct. 184, 188 (1998). Achte’s sole defense to Plaintiff’s allegations of “true conspiracy”
is to cite a single case that describes the cause of action as “very limited” and requires a showing of
coercion. Aetna Casualty Sur. Co. v. P& B Autobody, 43 F. 3d 1546, 1563 (1st Cir. 1994). Plaintiff
has met this standard by showing Defendants collectively exhibited a coercive power by playing
their discrete roles in the conspiracy, as Plaintiff noted in its arguments in its prior Opposition
concerning true conspiracy (ECF No. 32 at p. 25), each of which Plaintiff hereby adopts and
incorporates by reference. See Aetna Casualty at 1564 (allegations that automobile body shops and

11

claims adjusters engaged in a scheme to submit fraudulent insurance claims, “if proved, might
constitute such a ‘peculiar power of coercion’” over the plaintiff insurer); Kurker, 44 Mass. App. at
188 (“The element of coercion has been required only if there was no independent basis for
imposing tort liability”).
Massachusetts also recognizes conspiracy liability based on the joint liability of defendants.
See Plaintiff’s prior arguments regarding the “concerted action”/”common design” and “substantial
assistance”/”aiding and abetting” grounds for conspiracy claims (Dkt No. 32 at pp. 25-26), each of
which Plaintiff hereby adopts and incorporates by reference. Achte recognizes the existence of a
conspiracy among its co-defendants but claims innocence (MTD p. 17: “the only conclusions that
can be drawn from the plaintiff’s own pleading is that DGW and others devised a ‘Copyright
Scheme’ and that Achte Nuente [sic], which had enforceable copyright protection in Far Cry, was
an unwitting participant in the purported scheme.”), arguing that the SAC does not sufficiently
allege Achte’s knowledge or intent.
Claims for conspiracy, like claims for fraud, need only satisfy the requirements of Fed. R.
Civ. P. (9)(b), under which “[m]alice, intent, knowledge, and other conditions of a person's mind
may be alleged generally.” See Hayduk v. Lanna, 775 F.2d 441, 443 (1st Cir. 1985) (applying
Rule 9(b) to “actions alleging conspiracy to defraud or conceal”); Educadores Puertorriquenos v.
Hernandez, 367 F.3d 61, 68 (1st Cir. 2004) (at the notice pleading stage, “the actor’s state of
mind [] can be averred generally”). “Rule 9 requires a specification of the time, place, and content
of an alleged false representation, but not the circumstances or evidence from which fraudulent
intent could be inferred.” McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228 (1st Cir. 1996).
“The characterization of a state of mind, after all, does not lend itself to detailed pleading.” United
States ex rel Karvelas v. Melrose-Wakefield Hosp., 360 F.2d 220, 228 (1st Cir. 2004).
Plaintiff properly alleged that Achte and each of its co-defendants were co-conspirators.
“Each Defendant knew about the Copyright Scheme, and actively participated in it by knowingly
12

providing encouragement and substantial assistance in perpetration of the fraud, as described in
this Complaint.” SAC ¶ 294; see also id. ¶¶ 303-304 & 385-386. Plaintiff more than satisfied the
“averred generally” requirement for stating Defendants’ mental state. “Defendants intentionally
and fraudulently failed to submit the proper date of first publication in the application for
copyright registration for the motion picture Far Cry.” SAC ¶ 367. “By submitting an incorrect
date of first publication, Defendants knowingly made a misrepresentation of a material fact in the
application.” SAC ¶ 369.
Moreover, the SAC specifically provides a basis for inferring Achte’s knowledge or intent:
its extensive prior experience with copyright filings on its many prior films. See SAC ¶¶ 91-92,
303(b), & 317(b) (“Achte had previously filed or caused to be filed copyright registrations for
other films in accordance with U.S. copyright law”). Despite this experience, Achte failed to
register its copyright in time to qualify for the remedies that would make its mass claims
worthwhile, and nonetheless retained DGW, USCG and Guardaley. SAC ¶ 93. Plaintiff alleged, as
Achte concedes, that “Achte/Neunte would have had standing to bring claims for copyright
registration even absent a registration.” MTD p. 6 (quoting SAC ¶ 107 in part). Achte’s
awareness that copyright registration was not a necessary stage in the Achte action begs the
question of why it had counsel file a registration anyway. The obvious conclusion is that it did so to
justify trumped-up claims for damages whose lack of support would otherwise have been
transparent. See SAC ¶ 107 (“But such claims would be limited to actual damages.”).
Achte’s intent has been sufficiently averred in, and may be clearly inferred from, the SAC.
The MTD does not withstand scrutiny on these claims.
III.Achte Is Not Entitled to the Massachusetts Litigation Privilege.
Achte has used the federal courts, including this Court, as a vehicle of fraud. It has no
privilege to do so, but like its co-defendants, Achte seeks shelter in the Massachusetts litigation
privilege, which applies to communications by parties and their counsel “preliminary to a proposed
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judicial proceeding, or in the institution of, or during the course and as a part of a judicial
proceeding in which he participates as counsel, if it has some relation thereto.’” Sriberg v.
Raymond, 370 Mass. 105, 108 (1976) (quoting Restatement of Torts § 586 (1938). In effect Achte
argues that a fraud committed through the courts is immune from suit precisely because the court
was its forum. But the MTD fails to establish that the acts by Achte and its agents that injured
Plaintiff are subject to the privilege. Meltzer v. Grant, 193 F. Supp. 2d 373, 381 (D. Mass. 2002)
(“one asserting a privilege has the burden of establishing the entitlement to the privilege. Thus, a
motion to dismiss on the grounds that the acts complained of were privileged will only succeed
when the entitlement to the privilege is demonstrated by the complaint itself, taking all allegations
of the complaint as true and drawing all reasonable inferences in favor of the plaintiffs”).
Achte’s MTD studiously avoids stating the pertinence requirement that has long been at the
heart of the litigation privilege. See ECF No. 32 at pp. 12; Hoar v. Wood, 3 Met. (44 Mass.) 193,
198 (1841); Rice v. Coolidge, 121 Mass. 393, 394 (1876); McLaughlin v. Cowley, 127 Mass. 316,
319 (1879); Wright v. Lothrop, 149 Mass. 385, 389 (1889). “The requirement of pertinence
eliminates protection for statements made needlessly and wholly in bad faith.” McGranahan v.
Dahar, 119 N.H. 758, 763 (1979) (citing McLaughlin, 127 Mass. at 319). As articulated by thenJudge Breyer in Blanchette v. Cataldo, 734 F.2d 869 (1st Cir. 1984), Massachusetts applies this
requirement through a functional test, focused on a communication’s pertinence to the legal interest
of the person to whom it is made. Achte’s threats to the Class intimated forms of liability barred by
statute, and therefore irrelevant to their interests. Such communications do not merit the privilege.
Achte would have the Court apply the privilege to “any actions related to [DGW’s] representation
of Achte/Neunte in the copyright infringement action,” MTD p. 16, or “made in connection with
the initiation and prosecution of a lawsuit,” Id. at p. 15. Elsewhere they read the requirement out of
the law altogether, claiming the privilege applies to all statements “made by an attorney engaged in
the function of an attorney.” Id. It does not stretch nearly so far. “Litigation privilege does not
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apply when mere content of the communication is related to litigation subject matter.” Neuralstem,
Inc. v. Stemcells, Inc., 2009 U.S. Dist. LEXIS 67587 (D. Md. Aug. 24, 2009). The privilege applies
not to all statements “related to” a lawsuit, nor all statements made by counsel regardless of
pertinence, but only those material to the interest of the party addressed. Achte’s proposed “related
to” standard would encompass fraudulent pleadings and threats (such as Achte’s) whose sole
“relation” to the Achte action is to illustrate rights Achte did not have. Plaintiff hereby adopts and
incorporates by reference its argument concerning the litigation privilege’s pertinence requirement
(ECF No. 32 at pp. 12-14).
Achte does not claim that its fraudulent copyright registration was in any way pertinent to
the Achte action or subsequent litigation. Rather, it concedes that “Achte/Neunte would have had
standing to bring claims for copyright registration even absent a registration.” MTD p. 6 (citing
SAC ¶ 107).” Because the copyright registration was not a necessary stage in the Achte action, it
was not privileged. Plaintiff hereby adopts and incorporates by reference its argument concerning
the litigation privilege’s inapplicability to the registration (ECF No. 32 at pp. 8-9).
Achte does not contend that the privilege applies to statements by non-lawyers, such as the
communications with the class made on its behalf by USCG, which is managed by Guardaley’s
Benjamin Perino, who is not an attorney. SAC ¶ 73 n. 33. Nor do they contend that non-litigation
work sustains the privilege, such as work Achte’s agents performed in the guise of USCG, which
expressly marketed itself as providing a business model that would avoid litigation. SAC ¶¶ 77-80.
The privilege “would not appear to encompass the defendant attorneys’ conduct in counseling and
assisting their clients in business matters generally.” Kurker v. Hill, 44 Mass. App. Ct. 184, 192
(1998). It does not warrant dismissal of claims against lawyers who are not acting as litigators and
are implicated in a larger scheme than a legal proceeding. Id. at n. 8 (denying motion to dismiss
where “the complaint implicated [attorney] in the larger scheme of the assets purchase and freezeout, and did not confine his involvement solely to statements or communications made in
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connection with the preliminary injunction proceedings”). Plaintiff hereby adopts and incorporates
by reference its argument concerning the litigation privilege’s inapplicability to communications
by non-lawyers and lawyers acting outside the litigation context (ECF No. 32 at pp. 9-11).
The privilege does not protect statements made when litigation was not “contemplated in
good faith and under serious consideration.” Meltzer v. Grant, 193 F. Supp. 2d 373, 381 (D. Mass.
2000). Even filing a complaint will not suffice unless “the process was instituted under a probable
belief that the matter alleged was true, and with the intention of pursuing it according to the course
of the court.” Kidder v. Parkhurst, 3 Allen 393, 396 (Mass. 1862) (quotation omitted). The SAC
sufficiently pleads that Achte lacked this intention when it engaged in USCG’s business model to
pursue settlements for thousands of dollars on infringement claims whose remedy in actual
damages would be limited to some fraction of $26.99 apiece. See SAC ¶¶ 152-153, 157, &
218-222. Communications prior to any litigation on the merits is not privileged. As sufficiently
pleaded in the SAC, the Achte action was only a discovery suit, with no serious consideration given
to pursuing the defendants beyond settlements. SAC ¶¶ 24, 351, & 363. Achte’s lack of faith in the
Achte action’s merits was evidenced by its dismissal of all claims against 4,437 defendants when
pressed by the Court. SAC ¶¶ 208-212. The privilege does not protect statements made in merely
investigatory proceedings. See Stern v. Haddad Dealership of the Berkshires, 477 F. Supp. 2d 318,
326 (D. Mass. 2006). Plaintiff hereby adopts and incorporates by reference its argument concerning
the litigation privilege’s inapplicability to such pre-litigation communications (ECF No. 32 at pp.
11-12).
Due to the supremacy of federal law, the Massachusetts litigation privilege does not defeat
Plaintiff’s federal causes of action or pendent state causes of action. Achte does not argue
otherwise. Plaintiff hereby adopts and incorporates by reference its argument concerning the
litigation privilege’s inapplicability to such causes of action (ECF No. 32 at pp. 14-15), which
includes each cause of action in Plaintiff’s complaint.
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IV. Plaintiff has sufficiently pleaded all remaining counts.
Movant raises no grounds for dismissal that were not already discussed and refuted in
Plaintiff’s Opposition, which Movant has access to. Nonetheless, content with relying almost
wholly on the DGW Motion in its motion to dismiss, Movant fails to distinguish or otherwise raise
a colorable argument as to law or fact that would subvert Plaintiff’s previously stated arguments in
support of the following claims.
1. Plaintiff Suffered an Injury-in-Fact and Has Standing to Bring His Claims.
Because Movant’s grounds for dismissal adopts the argument made in the DGW Motion,
Plaintiff hereby adopts and incorporates by reference its argument in support of its standing to sue
(ECF No. 32 at pp. 5-7). In addition, Plaintiff hereby adopts and incorporates by reference its
standing argument to be presented in its forthcoming Memorandum of Law in Opposition to
Defendant Guardaley Limited’s Motion to Dismiss the Second Amended Class Action Complaint.
Accordingly, Movant’s motion to dismiss must be denied.
2. Plaintiff Sufficiently Pleaded a Claim Under the Computer Fraud and Abuse Act.
Moving Defendant’s contention that the Computer Fraud and Abuse Act, 18 U.S.C. §
1030 (“CFAA”) does not apply to them is premised upon their misreading of the statute. It is not
premised upon case law (they cite only two cases on the issue of damages, not loss), nor on any
secondary sources. In addition, it attempts to re-write Plaintiff’s claim to apply to “damage” only.
See MTD pp. 18-20. Because Movant’s grounds for dismissal otherwise adopts the argument
made in the DGW Motion, Plaintiff hereby adopts and incorporates by reference its argument in
support of its CFAA claim (ECF No. 32 at pp. 20-23). Accordingly, Movant’s motion to dismiss
must be denied.

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3. Copyright Misuse and Fraud on the Copyright Office are Recognized Causes of
Action for which Moving Defendant’s Liability Is Well-Founded.
Because Movant’s grounds for dismissal adopts the argument made in the DGW Motion,
Plaintiff hereby adopts and incorporates by reference its argument in support of its Copyright
Misuse and Fraud on the Copyright Office claims (ECF No. 32 at pp. 28-30). Accordingly,
Movant’s motion to dismiss must be denied.
4. Plaintiff Sufficiently Pleaded a Claim for Fraud on the Court, Abuse of Process and
Malicious Prosecution.
Because Movant’s grounds for dismissal adopts the argument made in the DGW Motion,
Plaintiff hereby adopts and incorporates by reference its arguments concerning Fraud on the Court
(ECF No. 32 at p. 28); Abuse of Process (ECF No. 32 at pp. 31-32); and Malicious Prosecution
(ECF No. 32 at pp. 32-33). Accordingly, Movant’s motion to dismiss must be denied.
5. Plaintiff Sufficiently Pleaded a Claim for Negligent Representations and Omissions
by Moving Defendants.
Because Movant’s grounds for dismissal adopts the argument made in the DGW Motion,
Plaintiff hereby adopts and incorporates by reference its argument in support of its claims related to
Negligent Misrepresentations and Omissions (ECF No. 32 at p. 26). Accordingly, Movant’s motion
to dismiss must be denied.
6. Plaintiff Has Standing to Bring Claims, including Unjust Enrichment, Money Had
and Received, Conversion and Constructive Trust, on Behalf of Other Members of
the Class.
Because Movant’s grounds for dismissal adopts the argument made in the DGW Motion,
Plaintiff hereby adopts and incorporates by reference its argument concerning its claims related to
the unlawful retention of money (ECF No. 32 at pp. 7-8). Accordingly, Movant’s motion to dismiss
must be denied.
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7.

Plaintiff Properly Stated RICO Claims Including Injury Caused by Defendant’s
Racketeering Activity.

Because Movant’s grounds for dismissal adopts the argument made in the DGW Motion,
Plaintiff hereby adopts and incorporates by reference its argument concerning its standing under
RICO (ECF No. 32 at pp. 23-24). Accordingly, Movant’s motion to dismiss must be denied.
8.

Plaintiff Sufficiently Pleaded a Claim for Violations of Chapter 93A.

Because Movant’s grounds for dismissal adopts the argument made in the DGW Motion,
Plaintiff hereby adopts and incorporates by reference its argument concerning its Chapter 93A
claim (ECF No. 32 at pp. 33-35). Accordingly, Movant’s motion to dismiss must be denied.
CONCLUSION
For all the above reasons, Plaintiff respectfully requests that the Court deny Moving
Defendant’s motion to dismiss in its entirety, and award attorney’s fees and expenses to Plaintiff,
and such other further relief that the Court deems just and proper.

Respectfully submitted,
Dmitriy Shirokov
/s/ Jason E. Sweet
Jason E. Sweet (BBO# 668596)
BOOTH SWEET LLP
32R Essex Street, Suite 1A
Cambridge, MA 02139
Telephone: [phone]
Facsimile: [phone]
Co-Counsel for Plaintiff and Proposed Class

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CERTIFICATE OF SERVICE

I hereby certify that on June 6, 2011, I electronically filed the foregoing Plaintiff’s
Opposition to Defendant Achte/Neunte Boll Kino Beteiligungs GMBH & Co. KG’s Motion to
Dismiss Second Amended Class Action Complaint by using the ECF system.
I hereby certify that a true copy of the aforementioned document will be served upon
counsel of record for Defendants Achte/Neunte Boll Kino Beteiligungs GMBH & Co. KG;
Guardaley, Limited; and Dunlap, Grubb & Weaver, PLLC, US Copyright Group, Thomas Dunlap,
and Nicholas Kurtz by Notice of Electronic Filing through the ECF system.

/s/ Jason E. Sweet
Jason E. Sweet (BBO# 668596)
BOOTH SWEET LLP
32R Essex Street, Suite 1A
Cambridge, MA 02139
Telephone: [phone]
Facsimile: [phone]

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