TCYK, LLC v. Does 48-98

Filing 12

OPINION AND ORDER denying 11 Motion to Proceed Anonymously. Within fourteen days of the date of this Order, the movant shall submit for filing a signed copy of the 8 Motion to Quash. Signed by Magistrate Judge Norah McCann King on 10/11/2013. (er1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TCYK, LLC,
Plaintiff,
vs.

Case No. 2:13-cv-540
Judge Marbley
Magistrate Judge King

DOES 48-98,
Defendants.
OPINION AND ORDER
This is a copyright action in which plaintiff alleges that
defendants copied and distributed plaintiff’s copyrighted work, the
motion picture “The Company You Keep.”

Complaint, Doc. No. 1, ¶ 5.

Defendants are currently identified only by IP addresses.
attached to Complaint.

Exhibit B,

On the same day that the Complaint, Doc. No.

1, was filed, plaintiff also filed an ex parte motion seeking to
conduct limited, expedited discovery of non-party internet service
providers in order to determine the identities of defendants.
No. 3.

Doc.

Specifically, plaintiff sought leave to serve a subpoena

pursuant to Fed. R. Civ. P. 45 on certain ISPs in order to discover
the name, address(es), telephone number(s), e-mail address(es), and
Media Access Control (“MAC”) addresses of each Doe defendant whom
plaintiff has identified to date (as well as those whom plaintiff may
identify in the future).

Id. at pp. 20-21.

This Court granted

plaintiff’s ex parte motion, concluding that plaintiff had established
good cause because it could not meet its service obligation under Fed.

R. Civ. P. 4 without the requested discovery.

Order, Doc. No. 4, pp.

1-2.
On September 20, 2013, an unidentified Doe Defendant filed a
motion to quash.

Motion of Doe No. 74 to Squash [sic] Subpoena

(“Motion to Quash”), Doc. No. 8.

The motion did not, however, comply

with Fed. R. Civ. P. 11 because the movant withheld his real name, did
not sign the motion, and did not provide a mailing address, email
address, or telephone number.

See Order, Doc. No. 9.

The Court

therefore ordered the movant to
submit for filing a signed copy of the Motion to Quash
which contains the information required by Rule 11(a).
Alternatively, the movant may file, within fourteen (14)
days, a motion to proceed anonymously. To the extent that
the movant has reasons for seeking protection of his or her
identity from disclosure, he or she may submit the motion
under seal and request leave to proceed with the motion ex
parte.
Id.
This matter is now before the Court for consideration of Doe No.
74’s Ex Parte Motion to Proceed Anonymously (“Motion to Proceed
Anonymously”), Doc. No. 11, which was filed in response to the Court’s
September 20, 2013 Order.

The moving defendant seeks to proceed

anonymously in this action to “protect[] his personal identifying
information from disclosure.”

Id. at p. 1.

The moving defendant

argues that “exceptional circumstance[s]” warrant granting the Motion
to Proceed Anonymously because “the injury litigated against [in the
Motion to Quash] would be incurred as a result of the disclosure of
[the moving defendant’s] identity.”

Id.

In short, the movant argues

that he should be permitted to proceed anonymously because his Motion
to Quash seeks to protect his identity.
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Id.

This argument is not

well taken.
As an initial matter, the moving defendant has failed to comply
with the Court’s September 20, 2013 Order because the motion fails to
comply with the signature requirements of Fed. R. Civ. P. 11(a) and
does not provide the movant’s email address or telephone number, even
for filing under seal.
As discussed supra, the moving defendant argues that he should be
permitted to proceed anonymously because the Motion to Quash seeks to
protect his identity from discovery.

The moving defendant has not,

however, articulated what harm, if any, would result from the
disclosure of his name, address, telephone number, e-mail address, and
MAC address.

Moreover, to the extent that the moving defendant

attempts to rely on the arguments made in the Motion to Quash,1 they
are also without merit.
First, the moving defendant is not burdened by the subpoena
because it is not he who is required to respond to the subpoena; the
moving defendant lacks standing to challenge the subpoena on the basis
that it burdens -

not him – but his ISP.

See Levitin v. Nationwide

Mut. Ins. Co., 2:12-cv-34, 2012 U.S. Dist. LEXIS 177738, at *14-15
(S.D. Ohio Dec. 14, 2012) (“Here, the subpoenas are directed to
Plaintiff’s prior employers.

Thus, only Plaintiff’s prior employers

1

The Motion to Quash seeks to quash a subpoena issued to the movant’s ISP
pursuant to this Court’s order because it (1) requires a non-party to travel
more than 100 miles from where that person resides, works and regularly
transacts business,” (2) “requires disclosure of information that is
protected from discovery,” (3) “subjects Doe No. 74 to undue burden,” (4)
seeks irrelevant information because identification of the Doe defendants by
IP address does not identify the identity of the alleged copyright
infringers, and (5) is being used to extort settlements from anonymous
defendants. Motion to Quash, pp. 1-2.

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have standing to challenge the subpoenas on the ground that production
of the subpoenaed documents would pose an undue burden expense.”);
McNaughton-McKay, Elec. Co. v. Linamar Corp., No. 09-cv-11165, 2010
U.S. Dist. LEXIS 59275, at *9-10 (E.D. Mich. June 15, 2010)
(“Defendant [which was not the recipient of the subpoena] does not
have standing to argue that Chrysler’s compliance with the subpoena
will cause undue burden where Chrysler has not objected to the
subpoena on this ground.”). In this regard, the Court notes that the
movant’s ISP, the entity that actually received the subpoena, has not
objected to compliance with the subpoena.
Second, the moving defendant contends that a risk of harassment
and extortion exists should his identity be revealed.
Quash, pp. 2-3.

Motion to

However, a desire to avoid persistent contact by a

plaintiff has been found to be an inadequate basis for allowing a
party to proceed anonymously.

See, e.g., Malibu Media, LLC v. John

Does 1-13, No. CV 12-1156(JFB)(ETB), 2012 WL 2325588, at *2 (E.D.N.Y.
June 19, 2012).

Moreover, other than generalized fears, the moving

defendant has offered no evidence (or even allegation) that the
plaintiff in this action has engaged in abusive litigation tactics.
On this record, this Court declines to assume that plaintiff will
engage in such misconduct.

See, e.g., Malibu Media, LLC v. John Does

1-5, 285 F.R.D. 273, 278 (S.D. N.Y. 2012) (“[N]one of the instances of
improper litigation tactics that have been brought to our attention
involve plaintiff or plaintiff’s counsel.

We are reluctant to prevent

plaintiff from proceeding with its case based only on a ‘guilt-byassociation’ rationale.”).

The Court also notes that, unlike the
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allegations of illegal downloads in other actions addressing coercive
settlements, cf. id., this litigation does not, apparently, involve
the alleged downloading of pornography.

Moreover, should any Doe

defendant establish that plaintiff’s claims have been vexatiously
pursued or are frivolous, or if any Doe defendant prevails, that party
may seek sanctions and/or reimbursement for his or her costs and fees.
See Fed. R. Civ. P. 11; 28 U.S.C. § 1927; 17 U.S.C. § 505; Fed. R.
Civ. P. 54.
Finally, the moving defendant argues in the Motion to Quash that
the subpoena seeks irrelevant information because identification

of the Doe defendants by IP address does not necessarily
identify the alleged copyright infringers.
1-2.

Motion to Quash, pp.

As discussed supra, the Court previously concluded that

plaintiff’s request for expedited discovery was supported by good
cause.

Order, Doc. No. 4 (citing Arista Records, LLC v. Does 1-15,

No. 2:07-cv-450, 2007 WL 5254326, at *2 (S.D. Ohio May 17, 2007)).
See also Breaking Glass Pictures v. Does 1-99, No. 2:13-cv-389, 2013
U.S. Dist. LEXIS 88090 (S.D. Ohio June 24, 2013) (finding good cause
and permitting expedited discovery in a copyright infringement case in
order to obtain the identity of each Doe defendant).

To the extent

that the movant asks the Court to revisit this conclusion, he has
offered nothing to establish that the prior decision was erroneous.
Moreover, arguments related to the merits of the claims and
allegations in the Complaint are appropriately addressed in the
context of a motion to dismiss or a motion for summary judgment,
rather than on a motion to quash a subpoena.
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See, e.g., First Time

Videos, LLC, 276 F.R.D. 241, 250 (N.D. Ill. Aug. 9, 2011).
Allowing a party to proceed anonymously is the exception and not
the rule.

Citizens for a Strong Ohio v. Marsh, 123 F. App’x 630, 636

(6th Cir. 2005).

The moving defendant does not explain how disclosure

of his or her name, address, telephone number, e-mail address, and MAC
address would harm the moving defendant.

The moving defendant also

has not shown that the need for remaining anonymous substantially
outweighs the risk of unfairness to plaintiff or the general
presumption that a party’s identity is public information.

See

E.E.O.C. v. Care Centers Mgmt. Consulting, Inc., No. 2:12-cv-207, 2012
WL 4215748, at *3 n.2 (E.D. Tenn. Sept. 18, 2012).

The moving

defendant’s request to proceed anonymously is therefore without merit.
Accordingly, the Motion to Proceed Anonymously, Doc. No. 11, is
DENIED.
The Motion to Quash, Doc. No. 8, remains pending.

Within

fourteen (14) days of this order, the movant shall submit for filing a
signed copy of the Motion to Quash, Doc. No. 8, which contains the
information required by Rule 11(a).

The movant’s failure to comply

with this Order as directed may result in an order striking the Motion
to Quash.

October 11, 2013

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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