Malibu Media, LLC v. John Doe

Filing 95

MEMORANDUM (Order to follow as separate docket entry) re 40 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Colette Pelissier Field, 34 Third Party Complaint, filed by John Doe, 33 Answer to Complaint, Third Party Complaint, Coun terclaim, filed by John Doe, 69 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Third Party Claims filed by Christopher Fiore, & 36 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Malibu Media, LLC. (See memo for complete details.) Signed by Chief Judge Christopher C. Conner on 3/3/17. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MALIBU MEDIA, LLC,

:
:
Plaintiff and Counterclaim :
Defendant,
:
:
v.
:
:
JOHN DOE subscriber assigned IP
:
Address 71.58.216.197,
:
:
Defendant, Counterclaim :
Plaintiff, and Third-Party :
Plaintiff,
:
:
v.
:
:
CHRISTOPHER FIORE, BRIGHAM
:
FIELD, and COLETTE PELISSIER:
FIELD,
:
:
Third-Party Defendants
:

CIVIL ACTION NO. 4:15-CV-2281
(Chief Judge Conner)

MEMORANDUM
Malibu Media, LLC, commenced the above-captioned action against John
Doe, asserting one count of copyright infringement pursuant to the United States
Copyright Act of 1976, 17 U.S.C. § 101 et seq. John Doe rejoins with counterclaims
and third-party claims for common law fraud as well as violation of Pennsylvania‟s
Unfair Trade Practices and Consumer Protection Law, 73 PA. STAT. AND CONS. ANN.
§ 201-1 to -9.3, and the Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. § 1963 et seq. Before the court are motions to dismiss by counterclaim
defendant Malibu Media, LLC, and third-party defendants Christopher Fiore,
Esquire, and Colette Pelissier-Field.

I.

Factual Background and Procedural History
Malibu Media, LLC (“Malibu”) is a producer and distributor of adult

pornographic videos. (Doc. 33 ¶ 45). The company is jointly owned by Colette
Pelissier-Field (“Pelissier-Field”) and Brigham Field (“Field”). (Id. ¶¶ 116, 154).
Malibu offers its works for download through a subscription-based website under
the brand name “X-Art.” (See Doc. 28 ¶ 8; Doc. 33 ¶ 46). In an affidavit filed with
the court, Pelissier-Field avers that Malibu “never authorized anyone to distribute
[its] works over the internet.” (Doc. 7-1 ¶ 9).
On November 25, 2015, Malibu commenced this action against John Doe,
asserting a claim for violation of the United States Copyright Act, 17 U.S.C. § 101
et seq. (Doc. 1). Therein, Malibu contends that it is registered owner of certain
copyrights and that John Doe downloaded, copied, and redistributed Malibu‟s
copyrighted works without authorization. (See Doc. 1 ¶¶ 2-3, 23-24). According to
Malibu, John Doe used BitTorrent, a “common peer-to-peer file sharing system,” to
unlawfully download and redistribute its copyrighted works. (Id. ¶¶ 11-26). Malibu
avers that its forensic investigator was able to download from John Doe each of the
twenty copyrighted works listed in the first exhibit to its complaint. (Id. ¶¶ 19-23, 25;
see also id. Ex. A).
On December 1, 2015, Malibu moved the court for leave to file a third-party
subpoena on Comcast prior to a Rule 26(f) conference, hoping to ascertain John
Doe‟s identity. (Doc. 6). The court granted Malibu‟s motion, (Doc. 8), and Malibu
thereupon served its subpoena on Comcast, seeking John Doe‟s name and contact
information. (Doc. 11 at 1). John Doe moved to quash the subpoena, (Doc. 10), and
2

Malibu did not file opposition papers. The court denied John Doe‟s motion, but
granted his request to proceed by pseudonym during the preliminary phase of this
litigation. Malibu Media, LLC v. Doe, No. 4:15-CV-2281, 2016 WL 524248, at *2-3
(M.D. Pa. Feb. 10, 2016). Malibu thereafter learned John Doe‟s true identity and
requested leave to file an amended pleading, under seal, identifying John Doe by
name to obtain a proper summons. (Doc. 25). The court granted Malibu‟s motion,
(Doc. 27), and Malibu filed both a redacted, unsealed amended complaint (Doc. 28)
and an unredacted, sealed amended complaint (Doc. 31).
John Doe answered the amended complaint on July 8, 2016, denying the
bulk of Malibu‟s allegations and asserting affirmative defenses. (Doc. 33). John Doe
also advances counterclaims against Malibu and third-party claims against Malibu‟s
owners and its attorney, Christopher Fiore, Esquire (“Attorney Fiore”). (Docs. 3334).1 John Doe charges the collective counterclaim and third-party defendants with
advertising Malibu‟s content for “free” download on third-party websites, only to
later sue individuals who download those free videos via torrent programs for
copyright infringement. (See Doc. 33 ¶¶ 44-73, 92, 138, 147, 173, 181, 192).
According to John Doe, Malibu began entering into business relationships
with a number of third-party adult websites in approximately 2011. (Id. ¶¶ 46-49,
55). These third-party websites distribute adult video content to viewers for free.
(Id. ¶¶ 47, 54). Malibu hoped to generate market exposure by partnering with thirdparty sites. (Id. ¶ 49). Malibu and its officers knew that the third-party websites
1

John Doe filed his third-party complaint (Doc. 33) and counterclaims (Doc.
34) as separate docket entries. The allegations and enumerated paragraphs therein
are identical. For ease of reference, the court cites only to the first docket entry.
3

advertised and offered Malibu‟s video content as free to view, download, and share.
(See id. ¶¶ 47, 119, 128, 157, 165).
Malibu uploads its content under pseudonyms such as “Colettex-art.”
(Id. ¶ 55). It shares both full length videos and shorter clips. (Id. ¶ 57). Each video
appears separately on its own webpage “with a button to download and share” and
is “fully downloadable.” (Id. ¶¶ 47, 59). Once downloaded, the video files “contain[]
pre-generated computer code” for users to embed and further publish the material
on other websites. (Id. ¶¶ 59, 64). Malibu advertises itself as a “content provider”
on four of the five “most visited free adult video websites on the internet.” (Id. ¶ 52).
According to John Doe, there is “crossover” between content shared on the thirdparty websites and the torrent websites where he is alleged to have downloaded
“pirated” works sub judice. (Doc. 33 ¶ 70; see Doc. 38 at 3). John Doe does not know
which or how many videos posted to torrent websites originate legitimately on the
free websites versus illegitimately through piracy. (See Doc. 33 ¶ 70).
John Doe avers that Malibu knowingly held itself out as a provider of free
adult video content and voluntarily partnered with third-party sites encouraging
users to share that content. (Id. ¶¶ 77-91). He suggests that Malibu and its officers
knew that users would consider the abundance of free content to indicate Malibu‟s
abandonment of its copyrights or its intent not to pursue non-commercial copyright
claims. (See id. ¶ 94; see also id. ¶¶ 137, 172). He asserts that Malibu has developed
a “for profit business” of bringing infringement claims against those it misleads into
believing its content is free. (See id. ¶¶ 96, 138-39, 147-49, 173-74, 181-83). Malibu
then engages in what John Doe perceives to be abusive settlement tactics: rather
4

than sending cease and desist letters, Malibu files “John Doe” lawsuits, relying on
the “social stigma” associated with viewing pornography to “extort[]” settlements
from plaintiffs. (Id. ¶¶ 97-102).
Against Malibu, Attorney Fiore, Field, and Pelissier-Field, John Doe asserts
claims for fraud (Count I, III, IV, V) and violations of the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. § 1962(a)-(c) (Count VI).2 John Doe asserts a
separate claim for violation of Pennsylvania‟s Unfair Trade Practices and Consumer
Protection Law, 73 PA. STAT. AND CONS. STAT. ANN. § 201-1 to -9.3 (Count II) against
Malibu. John Doe has not yet served the third-party complaint (Doc. 34) on Field.
Malibu, Pelissier-Field, and Attorney Fiore move to dismiss John Doe‟s claims
against them. (Docs. 36, 40, 69).
II.

Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief may be granted.
FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the
court must “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable

2

Attorney Fiore initially represented Malibu herein. After naming him as
a third-party defendant, John Doe asked the court to disqualify Attorney Fiore as
counsel. (Docs. 41, 43). The court granted John Doe‟s motion and disqualified
Attorney Fiore as counsel to Malibu and Pelissier-Field, citing potential conflicts
of interest between Attorney Fiore and his codefendant clients. (Doc. 52). The
court also held that this disqualification would extend to Field once he is served.
New counsel entered an appearance on behalf of Malibu and Pelissier-Field on
November 29, 2016. (Doc. 64).
5

reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cty. of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To test the sufficiency of the complaint, the court must conduct a three-step
inquiry. See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In
the first step, “the court must „tak[e] note of the elements a plaintiff must plead to
state a claim.‟” Id. at 130 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next,
the factual and legal elements of a claim should be separated; well-pleaded facts
must be accepted as true, while mere legal conclusions may be disregarded. Id. at
131; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once
the court isolates the well-pleaded factual allegations, it must determine whether
they are sufficient to show a “plausible claim for relief.” Iqbal, 556 U.S. at 679
(citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to
allege facts sufficient to “raise a right to relief above the speculative level”). A claim
“has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
Courts should grant leave to amend before dismissing a curable pleading in
civil rights actions. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc.,
482 F.3d 247, 251 (3d Cir. 2007); Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002). Courts need not grant leave to amend sua sponte in dismissing non6

civil rights claims pursuant to Rule 12(b)(6), Fletcher-Harlee Corp., 482 F.3d at 251,
but leave is broadly encouraged “when justice so requires.” FED. R. CIV. P. 15(a)(2).
III.

Discussion
John Doe claims that Malibu‟s copyright infringement claim is the product of

fraudulent, deceptive, and racketeering conduct. In essence, John Doe oppugns the
legitimacy of Malibu‟s action against him. The motions filed by Malibu, PelissierField, and Attorney Fiore raise a collective immunity defense in addition to testing
the sufficiency of each of John Doe‟s claims.
A.

Noerr-Pennington Immunity

Malibu, Pelissier-Field, and Attorney Fiore each claim immunity under
the Noerr-Pennington doctrine. This doctrine originated with the United States
Supreme Court‟s decisions in E. R.R. Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers v. Pennington, 381
U.S. 657 (1965), to reconcile federal anticompetition principles with the First
Amendment right to petition the government. Under Noerr, Pennington, and their
progeny, individuals who seek redress from the government are generally immune
from liability for their petitioning conduct. See Hanover 3201 Realty, LLC v. Village
Supermarkets, Inc., 806 F.3d 162, 178 (3d Cir. 2015). The doctrine emerged in the
antitrust context but has grown to encompass petitions directed to all government
entities, including to courts for statutory or common law grievances. See id. (citing
Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972)); Santana
Prods., Inc. v. Bobrick Washroom Equip., Inc., 401 F.3d 123, 131 n.13 (3d Cir. 2005).

7

The Noerr-Pennington doctrine is not without limitation. An individual who
files a lawsuit as a “mere sham” to disguise or facilitate anticompetitive motives
cannot avail itself of the doctrine‟s protections. See Cheminor Drugs, Ltd. v. Ethyl
Corp., 168 F.3d 119, 122 (3d Cir. 1999) (quoting Noerr, 365 U.S. at 144). The Third
Circuit neatly catalogues sham litigation into two classes: those alleging a single
sham lawsuit, and those alleging a series of sham lawsuits. See Hanover, 806 F.3d
at 179-81. Separate standards govern within each category.
The Supreme Court defines sham lawsuits in “single filing” cases by a twopart test. See Prof‟l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc.,
508 U.S. 49 (1993). First, the reviewing court considers whether the lawsuit is
“objectively baseless in the sense that no reasonable litigant could realistically
expect success on the merits.” Id. at 60. If the court answers this inquiry in
the affirmative, it must assess the litigant‟s subjective motive for evidence that
the lawsuit “attempts to interfere directly with the business relationships of a
competitor.” Id. at 60-61 (citations and internal quotation marks omitted). In cases
alleging a “series of filings,” the court asks whether “a series of petitions were filed
. . . without regard to merit and for the purpose of using the governmental process
(as opposed to the outcome of that process)” for anticompetitive ends. Hanover, 806
F.3d at 180-81. Courts scrutinizing multiple filings undertake a “holistic review” of
the accused party‟s “filing success” as well as any indications of bad faith. Id.
(citing Prof‟l Real Estate, 508 U.S. at 68 (Stevens, J., concurring)).

8

John Doe does not dispute that a copyright infringement action is the type
of activity that Noerr-Pennington aims to protect.3 Rather, John Doe adjures that
Malibu‟s litigation tactics trigger the sham lawsuit exception. (See Doc. 83 at 15-22;
Doc. 84 at 16-17; Doc. 85 at 16-18). He claims exception to immunity based on both
Malibu‟s single filing of this lawsuit and its series of lawsuits against others. (See
Doc. 83 at 15-22). The court addresses these arguments seriatim.
John Doe asserts that Malibu‟s claim lacks objective merit. He recites his
affirmative defenses and reiterates his theory of the case, to wit: that Malibu
uploaded some of its content to free streaming websites, that its content later
appeared on torrent websites, and that Malibu aggressively pursued torrent
downloaders with copyright infringement actions. (See Doc. 83 at 16-17). But the
fact that John Doe has a plausible affirmative defense to Malibu‟s claim does not
render the claim itself so “objectively baseless” that no reasonable person could
expect it to succeed. See Prof‟l Real Estate Investors, Inc., 508 U.S. at 60. John
Doe effectively concedes liability—admitting that he “did download or attempt[] to
download the videos” identified in Malibu‟s infringement complaint—and instead
leans exclusively on his affirmative defenses. (Doc. 33 ¶ 23). Against this backdrop,
we cannot conclude that Malibu‟s claim is “objectively baseless.”
Nor has John Doe alleged a pattern of objectively meritless lawsuits. He
suggests in his Rule 12 briefing that only one of “the 5000 copyright actions filed” by
3

Several courts within the Third Circuit have resolved that the doctrine
cloaks copyright infringement claims with immunity. See, e.g., UMG Recordings,
Inc. v. Martino, No. 4:08-CV-1756, 2009 WL 1069160, at *3-4 (M.D. Pa. Apr. 21, 2009);
Motown Record Co., L.P. v. Kovalcik, No. 07-CR-4702, 2009 WL 455137, at *4-5 (E.D.
Pa. Feb. 23, 2009).
9

Malibu has gone to trial and speculates that Malibu “possibly has the worst track
record of any multiple filing litigant in the history of the U.S. judicial system.” (Doc.
83 at 19). This allegation lacks any foundation in the pleadings. And it wholly fails
to account for the fact that the majority of Malibu‟s infringement actions resolve by
settlement and voluntary dismissal. The court takes judicial notice of the seventyseven infringement lawsuits filed by Malibu in this district since January 31, 2014.
In this district alone, Malibu settled with seventy-three plaintiffs and obtained
default judgments against three more. The fact that Malibu has not proceeded
to trial is no more an indication of frivolity than a settlement is proof of liability.
John Doe also notes that a federal grand jury in Minnesota recently indicted
two attorneys for “essentially running the exact same copyright litigation scam.”
(Doc. 83 at 16-17). A review of the indictment in United States v. Hansmeier, No.
1:16-CR-334 (D. Minn. 2016), exposes material distinctions anent the matter sub
judice. The indictment charges Paul R. Hansmeier and John L. Steele with three
counts of conspiracy to commit mail and wire fraud and money laundering and to
commit and suborn perjury, as well as five counts of mail fraud and ten counts of
wire fraud. Id. at Doc. 1. Hansmeier and Steele allegedly formed “sham entities”
to obtain copyrights to pornographic videos, then uploaded those videos directly to
torrent websites with intent to induce consumers to illegally download them. Id.
Hansmeier and Steele purportedly engaged in a host of “extortionate” settlement
tactics, threatening downloaders with embarrassing and costly litigation if they did
not pay the demand. Id. But Hansmeier and Steele are not Malibu, and the court
will not impute their conduct to taint the validity of Malibu‟s claim herein.
10

Moreover, John Doe does not allege that Malibu itself uploaded videos to torrent
websites for entrapment purposes, a fact material to the Hansmeier indictment.
John Doe satisfies neither exception to the Noerr-Pennington doctrine.
John Doe lastly contends that Attorney Fiore does not have “standing” to
seek immunity under Noerr-Pennington. According to John Doe, only Malibu and
its owners, as plaintiffs to the underlying suit, can claim the doctrine‟s protection.
(Doc. 84 at 16). John Doe cites broadly to the Supreme Court‟s standing analysis in
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), but otherwise fails to identify
support for his conjecture. It would defy logic to grant immunity to Malibu but
deny it to the attorney who filed the lawsuit on its behalf. Malibu, Pelissier-Field,
and Attorney Field are each entitled to Noerr-Pennington immunity.
B.

Substantive Merits

Assuming arguendo that John Doe‟s claims transcend Noerr-Pennington,
they nonetheless fail on their merits. The court will address briefly John Doe‟s
claims for common law fraud, violation of Pennsylvania‟s Unfair Trade Practices
and Consumer Protection Law, 73 PA. STAT. AND CONS. ANN. § 201-1 to -9.3, and
the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1963 et seq.
To prevail on his fraud claim under Pennsylvania law, John Doe must allege:
(1) a representation (2) that is material to the transaction at hand, (3) made falsely,
with knowledge of or recklessness to its falsity, (4) with intent to induce reliance
thereon, as well as (5) resulting justifiable reliance on the misrepresentation and (6)
injury proximately caused thereby. Bouriez v. Carnegie Mellon Univ., 585 F.3d 765,
11

771 (3d Cir. 2009) (quoting Overall v. Univ. of Pa., 412 F.3d 492, 498 (3d Cir. 2005)).
John Doe‟s fraud claim is also governed by the heightened pleading standard of
Rule 9(b), which requires a party alleging fraud to “state with particularity the
circumstances constituting fraud or mistake.” FED. R. CIV. P. 9(b).
John Doe alleges that Malibu represented its videos to be free to download
and share, and that Malibu knew this representation to be false. (See Doc. 33 ¶ 104).
He offers sufficient allegata to support these assertions, even measured against the
elevated Rule 9(b) standard. (See id. ¶¶ 47, 54, 119, 157). But his pleading is devoid
of factual support for the remaining elements. His cursory assertion that Malibu or
its officers “intended for individuals to rely on the false representations in order to
entrap” them finds no support in the record facts. (See id. ¶ 104). Indeed, the only
indication of intent is John Doe‟s assertion that Malibu provided its content to free
websites for “market exposure.” (Id. ¶ 49). John Doe admits that he knew Malibu
operates a for-profit subscription-based service, undermining his allegation that it
was justifiable for him to believe all of Malibu‟s content was free to download and
share. (See id. ¶ 46).
Further, John Doe does not allege injury with particularity. He cursorily
avers that the purported fraudulent copyright lawsuit has cost him “time, money,
and embarrassment.” (See Doc. 33 ¶¶ 104, 150, 184, 202). In briefing, he clarifies
that the harm he suffered is “attorney fees and costs.” (Doc. 84 at 9). John Doe
then professes that he “will submit the necessary documentation” to elucidate his
alleged injury further “at the appropriate time.” (Id.) This bare allegation falls well

12

short of both the Rule 9(b) and 12(b)(6) standards. John Doe fails to state a claim for
fraud.4
His RICO claim fares no better. RICO creates a civil remedy for “[a]ny
person injured in his business or property” by violation of the statute‟s substantive
provisions. 18 U.S.C. § 1964(c). The statute makes it unlawful for any person in the
employ of an “enterprise” to “participate, directly or indirectly, in the conduct of
such enterprise‟s affairs through a pattern of racketeering activity.” Brown v.
Access Midstream Partners, L.P., 141 F. Supp. 3d 323, 334 (M.D. Pa. 2015) (quoting
Genty v. Resolution Trust Corp., 937 F.2d 899, 906 (3d Cir. 1991)). RICO defines
“racketeering activity” to include various predicate offenses, including extortion
and wire fraud. See 18 U.S.C. § 1961(1). John Doe suggests broadly that Malibu,
Pelissier-Field, and Attorney Fiore have engaged in a pattern of criminal extortion,
fraud, and deception by “forcing victims to pay large settlements in order to avoid
extreme embarrassment, social stigma, and financial distress.” (Doc. 33 ¶¶ 218-19).
John Doe offers no meaningful defense of his RICO claim. He emphasizes
the criminal charges pending against Hansmeier and Steele in Minnesota, (Doc.
84 at 13-14; Doc. 85 at 13-15), but, as set forth above, the court squarely rejects
any attempts to draw parallels to that matter. Otherwise, John Doe asserts that
4

John Doe avers that Pelissier-Field and Attorney Fiore jointly defrauded the
court by submitting a declaration stating that Malibu has “never authorized anyone
to distribute our content over the internet.” (Doc. 84 at 7-9; Doc. 85 at 7-9; see also
Doc. 7-1 ¶ 9). John Doe fails to allege (and as a matter of logic, cannot allege) that he
personally relied on this declaration to his detriment. Accordingly, the declaration
cannot form the basis of John Doe‟s fraud claim. To the extent the declaration is
ultimately proven to be false or fraudulent throughout the course of this litigation,
the court will respond appropriately.
13

“continuous filing” of infringement actions and attendant settlement practices are
predicate substantive acts under RICO. (See Doc. 84 at 12; Doc. 85 at 12). But the
pursuit of colorable claims by resort to legal process is not extortion. Peterson v.
Phila. Stock Exch., 717 F. Supp. 332, 336-37 (E.D. Pa. 1989); see also Atl. Recording
Corp. v. Raleigh, No. 4:06-CV-1708, 2008 WL 3890387, at *5 (E.D. Mo. Aug. 18, 2008).
The court has determined that Malibu‟s claim is objectively reasonable by virtue of
John Doe‟s own concessions. John Doe fails to identify a pattern of extortionate
racketeering activity and thus fails to state a civil RICO claim.
Lastly, we consider John Doe‟s claim against Malibu under Pennsylvania‟s
Uniform Trade Practices and Consumer Protection Law. 73 PA. STAT. AND CONS.
STAT. ANN. § 201-1 to -9.3. John Doe relies on the statute‟s “catch-all” provision,
which makes it unlawful to “[e]ngag[e] in any . . . fraudulent or deceptive conduct
which creates a likelihood of confusion or misunderstanding.”5 Id. § 201-2(4)(xxi).
Pennsylvania courts consistently hold that a 1996 amendment of the statute to
include both “fraudulent” and “deceptive” acts “lessened the degree of proof
required.” Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145,
153-54 (Pa. Super. Ct. 2012) (collecting cases). Hence, to prevail on a claim under
the catch-all provision, a plaintiff need not establish common law fraud. He need
only show (1) a deceptive act likely to deceive a reasonable consumer; (2) justifiable

5

John Doe‟s pleadings quote directly from several of the uniform act‟s
enumerated “unfair or deceptive acts or practices.” (Doc. 33 ¶ 109; Doc. 34 ¶ 109).
However, his opposition papers focus exclusively on the “catch-all” provision, see
73 PA. STAT. AND CONS. STAT. ANN. § 201-2(4)(xxi), and the court analyzes his claim
in kind.
14

reliance on that act; and (3) a resulting “ascertainable loss.” Slapikas v. First Am.
Title Ins. Co., 298 F.R.D. 285, 292 (W.D. Pa. 2014) (citing Seldon v. Home Loan
Servs., 647 F. Supp. 2d 451, 470 (E.D. Pa. 2009)). An act is “deceptive” under the law
when it has a “capacity or tendency to deceive.” Commw. ex rel Corbett v. Peoples
Ben. Servs., Inc., 923 A.2d 1230, 1235-36 (Commw. Ct. Pa. 2007) (citation omitted).
Unlike a claim for fraud, a claim under the uniform law‟s catch-all provision does
not require proof of deceptive intent. Id. at 1236.
As a threshold matter, the Unfair Trade Practices and Consumer Protection
Law creates a cause of action only for those individuals who “purchase[] or lease[]
goods or services” as a result of conduct deemed unlawful thereunder. 73 PA. STAT.
AND CONS. STAT. ANN.

§ 201-9.2; see also Reed v. Chambersburg Area Sch. Dist., 951

F. Supp. 2d 706, 724-25 (M.D. Pa. 2013). John Doe did not purchase or lease any
product or service from Malibu. Assuming the law applies notwithstanding this
infirmity, John Doe‟s claim nonetheless fails. His contention that he reasonably
believed all of Malibu‟s content to be free based on marketing of some of its content
on free websites cannot square with his knowledge that Malibu charged monthly
fees for a subscription-based service. (See id. ¶ 46). Nor does John Doe specify
what “actual damages” he suffered as a result of his alleged confusion. (Id. ¶ 113).
The court will dismiss John Doe‟s claim under pursuant to Pennsylvania‟s Unfair
Trade Practices and Consumer Protection Law.

15

IV.

Conclusion
John Doe‟s allegata may offer him a defense to Malibu‟s pending copyright

infringement claim. But his attempt to transform affirmative defenses into separate
causes of action fails. Moreover, because the Noerr-Pennington doctrine creates an
insurmountable legal bar to John Doe‟s claims, leave to amend would be futile. See
Fletcher-Harlee Corp., 482 F.3d at 251. The court will grant the motions (Docs. 36,
40, 69) to dismiss by Malibu, Pelissier-Field, and Attorney Fiore and dismiss John
Doe‟s counterclaim and third-party complaint with prejudice. An appropriate order
shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

March 3, 2017