MALIBU MEDIA, LLC v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 76.117.28.225

Filing 16

OPINION. Signed by Judge Jose L. Linares on 5/11/15. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MALIBU MEDIA,
Plaintiff,

Civil Action No. 14-6976 (JLL) (JAD)

v.

OPINION

KIRK RAHUSEN,
Defendant.

LINARES, District Judge.
This matter comes before the Court by way of Defendant Kirk Rahusen
(“Defendant”)’s
motion to dismiss Plaintiff Malibu Media (“Plaintiff”)’s Amended Complaint
(“AC”; ECF No.
7) pursuant to Federal Rule of Civil Procedure 1 2(b)(6). (ECF No. 13). The
Court has
considered the parties’ submissions in support of and in opposition to the
instant motion and

decides this matter without oral argument pursuant to Federal Rule of Civil
Procedure 78. For
the reasons set forth below, the Court denies Defendant’s motion.
I. BACKGROUND’

Plaintiff is a limited liability company located and organized under the
laws of California.
(AC at ¶ 8). Defendant is an individual residing at a residence in Bloom
field, NJ. (Id. at ¶ 9).
Defendant alleges that Plaintiff used the BitTorrent file distribution networ
k (“BitTorrent”), a
peer-to-peer tile sharing system used for distributing large amounts
of data, to infringe Plaintiff’s

The following facts are taken as true solely for the purposes of this

motion.

Copyrights. (Id. at Sect. I;

¶J

10-12). Defendant downloaded, copied, and distributed a complete

copy of Plaintiff’s movies without authorization as enumerated in Exhibit A. (Id. at
¶ 19).
Plaintiff used an investigator, IPP International UG, to establish a direct “TCP/
IP
connection” with Defendant’s IP address. (id. at 17). Plaintiff alleges that
IPP International UG
¶
downloaded, from Defendant, one or more bits of each file hash listed in Exhibi
t A attached to
the Complaint. (Id. at ¶ 21). Further, IPP international UG downloaded a full
copy of each file
hash from the BitTorrent file distribution network and confirmed throug
h independent
calculation that the file hash matched what is listed on Exhibit A. (Id.) IPP Interna
tional UG then
verified that the digital media file correlating to each file hash listed on Exhibi
t A contained a
copy of a movie which is identical (or alternatively, strikingly similar or substa
ntially similar) to
the movie associated with that file hash on Exhibit A. (Id.). Plaintiff alleges
that Plaintiff’s
evidence establishes that Defendant is a habitual and persistent BitTorrent
user and copyright
infringer. (Id. at ¶ 24).
Defendant’s ISP, Comcast Cable, identified Defendant’s girlfriend as the
Internet
subscriber addressed IP address 76.117.28.225 on October 2, 2014—one
day on which the

infringement occurred. (Id. at ¶ 25). Defendant lives with his girlfriend.
(Id. at ¶ 26). Plaintiff
alleges that discovery will likely show that Defendant is the infringer
and not Defendant’s
girlfriend, as Defendant’s girlfriend authorized Defendant to use her compu
ter. (Id. at ¶J 27-28).
After receiving the subscriber’s name, Plaintiff conducted a pre-suit investi
gation and found that
images posted by Defendant on his social media profile page match the
subjects of the works that
IPP recorded being distributed from the subject IP address, which infring
ed Plaintiff’s works (Id.
at ¶J 30-32). Plaintiff asserts one count of Direct Infringement agains
t Defendant. (Id. at ¶J 3640).

II. LEGAL STANDARD

For a complaint to survive dismissal, it “must contain sufficient factual matter
, accepted
as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Jqbal,
556 U.S. 662,
678 (2009) (citing Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threa
dbare recitals
of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”
Id. In determining the sufficiency of a complaint, the Court must accept all
well-pleaded factual
allegations in the complaint as true and draw all reasonable inferences in favor
of the nonmoving party. See Phillips v. County ofAllegheny, 515 F.3d 224, 234 (3d Cir.
2008). But, “the
tenet that a court must accept as true all of the allegations contained in a compl
aint is
inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. Thus, legal conclu
sions draped in the
guise of factual allegations may not benefit from the presumption of truthfu
lness. Id.; In re Nice
Sys., Ltd. Sec. Litig., 135 F. Supp. 2d 551, 565 (D.N.J. 2001).
III. DISCUSSION
A. Motions Before the Court
1. Defendant’s Motion

Defendant contends that Plaintiffs Amended Complaint should be dismis
sed on the
following grounds: (I) Plaintiffs Amended Complaint fails to comply with
FCRP 8; and (2)
Plaintiff failed to follow the Court’s directive that it have a factual basis
for the assertion that the
Defendant engaged in the alleged infringement.
2. Plaintiffs Opposition

Plaintiff responds to Defendant’s contention by asserting that: (1) Plaintiff’s Compl
aint
states a plausible claim for relief; (2) Plaintiff’s allegations that Defendant is
the infringer are
plausible; (3) Defendant’s Amended Complaint complies with this Court’s
Order; (4) The AF
Holdings Opinion relied upon by Defendant is entirely dissimilar to the instant
case; and (5)
Every Court to address the issue has found that Plaintiff’s Complaints survive 12(b)(6
a
) motion.
B. Plaintiffs Complaint

Defendant argues that the Complaint should be dismissed because Plaintiff’s
Amended
Complaint fails to provide sufficient facts connecting Defendant to infringement.
Defendant
states that Plaintiff’s naming of Defendant in the Complaint is based upon specul
ative and
conclusory references which does not rise to the level of plausible. Defendant
cites to AF
Holdings LLC v. John Doe, for the proposition that a Court may deny a Plainti
ff from amending
a complaint in order to insert a defendant’s actual name based upon an investigation
similar to
the one cited by Plaintiff in its Amended pleadings. No. C 12-2049, ECF No.
45, 2013 WL
97755 (N.D. Cal. Jan. 7, 2013). Defendant states that while Plaintiff’s
Complaint provides details

about the alleged copyrights and subsequent infringement, Plaintiff’s Amend
ed Complaint fails
to provide any details about the supposed images or what social media profile
the image was
posted to.
Moreover, Defendant contends, although this defendant resided at the
same address as the
Comcast subscriber assigned the IP address in question, Plaintiff has failed
to set forth sufficient
facts to allege that (1) he has been romantically involved with the subscr
iber, and (2) that
plaintiff connected to his computer to establish evidence of improper
downloading. Defendant
argues that Plaintiff failed to follow the Court’s directive and have
a “factual basis for the

assertion that [this] defendant engaged in the alleged infringement,” when reques
ting to serve an
early subpoena on Comcast.
Plaintiff responds to Defendant’s arguments by stating that Plaintiff has
established
infringement by sufficiently pleading: (I) ownership of a valid copyright,
and (2) copying of
constituent elements of the work that are original, to which Defendant does
not dispute. Plaintiff
argues that by describing in detail the operation of the BitTorrent protoc
ol and how Plaintiff
determined Defendant’s IP address infringed its movies using BitTorrent,
Plaintiff has alleged
sufficient facts to establish a prima facie case that Defendant infringed upon
Plaintiffs
copyrighted works. Moreover, by providing the IP address associated with
the individual
conducting the infringing activity, Plaintiff contends that Plaintiff has set
forth factual content
that allows the court to draw the reasonable inference that Defendant is liable
for the misconduct
alleged. Plaintiff states that it is plausible that Defendant is the infringer
because Plaintiff’s
investigation revealed that Defendant lived with the subscriber at all relevan
t times and had
access to the Internet at the subject address. Plaintiff notes that Defendant
does not refute this
fact or argue that he had a separate internet connection.
Further, Plaintiff’s investigation revealed that Defendant’s publicly
available social
media profile contains images which match the types of third party works
that Plaintiff’s
investigator detected being infringed. Thus, Plaintiff argues, Plainti
ff has connected Defendant
personally with evidence of BitTorrent use traced to the subject IP addres
s and residence
assigned that IP address, where Defendant lived. Finally, Plaintiff attemp
ts to distinguish the AF
Holdings case from the case at bar by noting that here: (1) Plaintiff
has alleged only direct
copyright infringement against Defendant for the infringement of
not one, but twenty-four (24)
copyrighted movies over the course of over a year; (2) Plaintiff is not
seeking leave to file a

second amended complaint; (3) Plaintiff has not delayed naming Defendant
as the infringer for
over a year; (4) Plaintiff has never represented that Defendant is not the
infringer; and (5)
Plaintiff’s allegations state that Defendant’s social media profile contain
s specific content which
matches directly with content that Plaintiff’s investigator detected being
infringed. Finally,
Plaintiff argues that in every similar case where Plaintiff has been challen
ged with a 12(b)(6)
motion, citing at least twenty (20) such decisions from courts around the
country, the court has
found Plaintiff stated a plausible claim.
The Court agrees with Plaintiff that Plaintiff has established infringement
by sufficiently
pleading: (1) ownership of a valid copyright, and (2) copying of constituent
elements of the work
that are original.” Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc.,
499 U.S. 340, 361, 111 S.

Ct. 1282, 1296, 113 L. Ed. 2d 358 (1991). Plaintiff has sufficiently pled
the first element, the
ownership of a valid copyright. (AC at
¶J 3, 37). Defendant further admitted that Plaintiff had
sufficiently pled the first element of copyright infringement. (Def’s Brief
at 7)(”Plaintiff’s
Amended Complaint provides intricate details about the date each work
was purportedly
copyrighted, and the name, date and even time of day each copyrighted
work was allegedly
downloaded.”)
Moreover, Plaintiff has properly established the alleged infringement
of the subject works
by Defendant. Plaintiff has alleged that Defendant “downloaded, copied
, and distributed a
complete copy of Plaintiff’s movies without authorization.” (AC
at ¶J 19). Further, Plaintiff has
set forth specific factual allegations regarding the process by which
Defendant used the
BitTorrent program to download Plaintiff’s works and how Plaintiff
tracked Defendant’s IP
address to the BitTorrent program. (Id. at
¶J 11-21). Further, by alleging that Plaintiff conducted
an investigation and discovered that Defendant’s publicly available
social

media profile contains

______________________

images that match the types of third party works that Plaintiffs investigator detecte
d being
infringed, Plaintiff has sufficiently connected Defendant personally with evidence of
BitTorrent
use traced to the subject IP address and residence assigned that IP address, where Defend
ant
lived. (Id. at ¶j 3 1-33). This Court must “accept all factual allegations as true,
[andi construe the
complaint in the light most favorable to the plaintiff[.j” Phillips v. Cnty. ofAllegheny, 515
F.3d
224, 233 (3d Cir. 2008). In addition, “[d]etermining whether the allegations in a
complaint are

‘plausible’ is a ‘context-specific task that requires the reviewing court to draw on its
judicial
experience and common sense.” Young v. Speziale, No. 07—3 129, 2009 U.S. Dist.
LEXIS
105236, *f7, 2009 WL 3806296 (D.N.J. Nov. 10, 2009) (quoting Iqbal, 556 U.S.
at 679).
Based upon this principle coupled with Plaintiffs pleadings and the factual allegations thereto
,
the Court finds it inappropriate, at this stage of the litigation, to dismiss Plaintiffs claims
.
Therefore, Defendant’s motion is denied.
IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion to Dismiss (CM/ECF No. 13),
is
denied. An Appropriate Order accompanies this Opinion.

Date May

2015
Jose L. Linares
nfted States District Court