TCYK, LLC v. Doe 1-37

Filing 11

ORDER denying 10 Motion for Protective Order. Within fourteen (14) days of this order, the movant shall submit for filing a signed copy of the Motion to Quash, Doc. No. 6. Signed by Magistrate Judge Norah McCann King on 10/1/13. (jcw1)

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

Case No. 2:13-cv-688
Judge Marbley
Magistrate Judge King

JOHN DOES 1-37,
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 16, 2013, an unidentified Doe Defendant filed a
motion to quash and to sever.

Motion to Quash, Doc. No. 6.

The

motion did not, however, comply with Fed. R. Civ. P. 11 because the
movant withheld his or her real name, did not sign the motion, and did
not provide an email address or telephone number.
7.

See Order, Doc. No.

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 the
Motion for Protective Order on Behalf of John Doe IP 71.50.217.22
(“Motion to Proceed Anonymously”), Doc. No. 10, which was filed in
response to the Court’s September 16, 2013 Order.

The moving

defendant seeks to proceed anonymously in this action “to prevent
undue burden and annoyance.”

Id. at p. 1.

The moving defendant

“believe[s]” that plaintiff is a “copyright troller” and represents
that “[c]opyright trollers have been known to harass the Doe
defendants once they received their contact information.”

Id.

The

moving defendant “fear[s] that [he or she] will be unjustly[] and
incessantly harassed” if required to “sign any documents for public
discloser or discloser to the plaintiff.”

Id. at p. 2.

The moving

defendant also contends that he or she should be permitted to proceed
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anonymously because an unauthorized user may have committed the
alleged copyright infringement.

Id. at pp. 2-3.

These arguments are

not well taken.
As an initial matter, the moving defendant has failed to comply
with the Court’s September 16, 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 expresses a “fear” of
being “unjustly[] and incessantly harassed” should his or her identity
be revealed to plaintiff or the public.
Anonymously, pp. 1-2.

Motion to Proceed

The moving defendant also represents that

plaintiffs in other, similar copyright infringement cases “have been
known to harass the Doe defendants.”

Id.

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
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its case based only on a ‘guilt-by-association’ rationale.”).

The

Court also notes that, unlike the 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.

For all these

reasons, the moving defendant’s request to proceed anonymously based
on a generalized fear of harassment is not well taken.
The moving defendant also argues that he or she should be
permitted to proceed anonymously because it may have been an
unauthorized user – not the moving defendant – who committed the
alleged copyright infringement.
3.

Motion to Proceed Anonymously, pp. 2-

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 or she
has offered nothing to establish that the prior decision was
erroneous.

Moreover, arguments related to the merits of the claims
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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.

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 for Protective Order on Behalf of John
Doe IP 71.50.217.22, Doc. No. 10, is DENIED.
The Motion to Quash Subpoena, Doc. No. 6, 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. 6, 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 1, 2013

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

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