Venice PI, LLC v. Doe 1 et al

Filing 62

MINUTE ORDER granting in part and denying in part plaintiff's 48 Motion to Dismiss Counterclaims and Strike Affirmative Defenses Asserted by Defendant Michael Smith. Authorized by Judge Thomas S. Zilly. (SWT) (cc: Michael Smith via USPS)

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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 6 VENICE PI, LLC, 7 Plaintiff, 8 v. C17-1211 TSZ 9 EDWARD JILES; MICHAEL SMITH; BILLY JOE GAMBILL; TSIMAFEI SHAPAVAL; FAIMAFILI MIKA; ROBERT BOVITZ; and JONATHAN GARCIA, 10 11 12 13 14 MINUTE ORDER Defendants. The following Minute Order is made by direction of the Court, the Honorable Thomas S. Zilly, United States District Judge: (1) Plaintiff’s motion to dismiss counterclaims and strike affirmative defenses 15 asserted by defendant Michael Smith, docket no. 48, is GRANTED in part and DENIED in part as follows. 1 16 (a) Smith’s affirmative defense of comparative negligence is 17 STRICKEN with prejudice as being inapplicable to a claim of copyright infringement. 18 (b) Smith’s affirmative defense of illegality or fraud is STRICKEN without prejudice as insufficiently pleaded, see Fed. R. Civ. P. 9(b), and with 19 leave to amend within fourteen (14) days of the date of this Minute Order. 20 21 1 Plaintiff’s motion to strike, docket no. 60, Smith’s supplemental response, docket no. 59, is DENIED. 22 The Court does not view Smith’s supplemental brief as an improper surreply, but rather as a response to 23 the various documents plaintiff submitted on February 5, 2018, see docket nos. 52-58, approximately three weeks after it filed its reply. MINUTE ORDER - 1 1 2 3 4 (c) Smith’s affirmative defense of de minimis non curat lex is also STRICKEN with prejudice. Under the Copyright Act, even if a plaintiff suffers no or merely trifling damages as a result of a proven infringement, such plaintiff may still seek statutory damages of at least $200. 17 U.S.C. §§ 504(a)(2)&(c)(2). Thus, Smith may not escape liability for any copyright infringement on the theory that only a tiny portion of a film that rents for just a few dollars was involved. The Court, of course, makes no ruling at this time concerning whether Venice PI, LLC can demonstrate the requisite infringement. 5 (d) Plaintiff’s motion to dismiss is otherwise DENIED. 6 (2) The Clerk is directed to send a copy of this Minute Order to all counsel of 7 record and to pro se defendant Michael Smith. 8 Dated this 22nd day of May, 2018. 9 William M. McCool Clerk 10 s/Karen Dews Deputy Clerk 11 12 13 14 15 16 17 18 19 20 21 22 23 MINUTE ORDER - 2

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