Illinois Official Reports 

Appellate Court 

Guava LLC v. Comcast Cable Communications, LLC, 

2014 IL App (5th) 130091

Appellate Court 

Caption 

GUAVA LLC, Petitioner-Appellee, v. COMCAST CABLE 

COMMUNICATIONS, LLC, Respondent (John Doe 68.58.68.84, 

John Doe 71.229.73.180, John Doe 67.162.81.65, John Doe 

75.150.227.205, John Doe 98.213.192.42, John Doe 76.29.35.172, 

John Doe 98.214.217.213, John Doe 67.167.13.99, John Doe 

67.173.94.229, John Doe 98.213.182.122, John Doe 67.174.24.44, 

John Doe 24.15.225.33, John Doe 71.194.189.101, John Doe 

71.57.3.17, John Doe 98.213.129.83, John Doe 98.213.177.66, John 

Doe 67.173.71.42, John Doe 68.57.233.25, John Doe 67.162.51.34, 

and John Doe 67.167.112.22, Movants-Appellants). 

District & No. Fifth District 

Docket No. 5-13-0091 

Filed May 20, 2014 

Held 

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

In an action arising from petitioner’s attempt to obtain the identities of 

subscribers to respondent’s Internet services who allegedly used those 

services to gain unauthorized access to petitioner’s protected 

computer system, which distributed adult entertainment to fee-paying 

members of the system, the trial court erred in granting petitioner’s 

request, pursuant to Supreme Court Rule 224, for discovery before 

filing suit, since the petition failed to allege sufficient facts to support 

a cause of action against the persons the petition sought to identify, 

and, further, the trial court erred in denying the petition of the “John 

Doe” subscribers, who were identified only by an Internet Protocol 

address, seeking a rule to show cause and sanctions against petitioner, 

especially when the underlying question in the matter was whether 

petitioner intended to state a cause of action against the subscribers or 

was actually seeking to harass or extort the subscribers without 

forming a reasonable basis for believing that they were culpable 
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parties; therefore, the trial court was directed on remand to dismiss the 

petition for discovery before suit and to conduct an evidentiary 

hearing on the petition for a rule to show cause. 

Decision Under 

Review 

Appeal from the Circuit Court of St. Clair County, No. 12-MR-417; 

the Hon. Andrew J. Gleeson, Judge, presiding. 

Judgment Reversed and remanded with directions; motions denied. 

Counsel on 

Appeal 

Thomas V. Leverso, of Law Offices of Thomas V. Leverso, of South 

Barrington, Laura K. Beasley, of Joley, Nussbaumer, Oliver & 

Beasley, P.C., of Belleville, and Erin K. Russell, of Russell Firm, of 

Chicago, for appellants. 

No brief filed for appellee. 

Panel JUSTICE SPOMER delivered the judgment of the court, with opinion. 

Presiding Justice Welch and Justice Chapman concurred in the 

judgment and opinion. 

 OPINION 

¶ 1 The movants, 20 “John Does” (the Doe appellants) who are identified by an Internet 

Protocol address (IP address), appeal the February 21, 2013, order of the circuit court of St. 

Clair County, which: (1) granted the motion of the petitioner, Guava LLC (Guava), to strike 

the Doe appellants’ petition for rule to show cause and notice requiring the attendance of 

certain representatives of Guava at a hearing on the petition pursuant to Illinois Supreme Court 

Rule 237(b) (eff. July 1, 2005); and (2) denied the Doe appellants’ objection to the disclosure 

of their personal information by the respondent, Comcast Cable Communications, LLC 

(Comcast), as required by the circuit court in its December 12, 2012, order granting Guava’s 

petition for discovery before suit to identify responsible persons (petition for discovery before 

suit) pursuant to Illinois Supreme Court Rule 224 (eff. May 30, 2008). In addition, the Doe 

appellants appeal the February 22, 2013, order of the circuit court of St. Clair County, which 

gave Comcast seven days to disclose the Doe appellants’ personal information to Guava. 
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¶ 2 The Doe appellants make the following arguments for reversal of the circuit court’s orders: 

(1) that the circuit court lacked both subject matter and personal jurisdiction over the claims 

and parties, (2) that Guava’s petition for discovery before suit failed to state facts that would 

entitle it to discovery of the Doe appellants’ identities pursuant to Rule 224, and (3) that the 

Doe appellants’ petition for a rule to show cause should have proceeded to an evidentiary 

hearing requiring the presence of the representatives of Guava listed in the Doe appellants’ 

Rule 237(b) notice. 

¶ 3 Guava did not file a timely appellee’s brief with this court, and on January 10, 2014, this 

court denied Guava’s motion to file its brief instanter. On February 18, 2014, the Doe 

appellants filed a motion for attorney fees in this court, arguing that this court should award 

attorney fees to the Doe appellants based on Guava’s vexatious, frivolous, and dilatory conduct 

in this case, pursuant to Illinois Supreme Court Rules 137 (eff. Jan. 4, 2013), 375 (eff. Feb. 1, 

1994), and 366(a)(3) to (5) (eff. Feb. 1, 1994). This court entered an order taking the motion for 

attorney fees with the case. On April 3, 2014, Guava filed a motion to strike the Doe 

appellants’ motion for attorney fees and to dismiss the appeal, stating that it never received the 

motion for attorney fees. In response, the Doe appellants filed signed certified mail return 

receipts indicating Guava’s counsel did receive the motion. We hereby deny Guava’s motion 

to strike and to dismiss the appeal. 

¶ 4 After considering the Doe appellants’ appeal and motion for attorney fees on their merits, 

pursuant to the guidance of the Illinois Supreme Court in First Capitol Mortgage Corp. v. 

Talandis Construction Corp., 63 Ill. 2d 128, 131-32 (1976), we reverse the orders of the circuit 

court and remand with directions that the circuit court dismiss Guava’s petition for discovery 

before suit, proceed to an evidentiary hearing on the Doe appellants’ petition for a rule to show 

cause, and compel the attendance of the persons named in the Doe appellants’ Rule 237 notice 

to appear. Because we find that the circuit court is the proper arbiter of the Doe appellants’ 

allegations of frivolous pleading, fraud, identity theft, and extortion, we deny the Doe 

appellants’ motion for attorney fees pursuant to Illinois Supreme Court Rules 137, 375, and 

366(a)(3) to (5). However, we note that because the Doe appellants are the prevailing party in 

this appeal, they may petition for their costs on appeal pursuant to Illinois Supreme Court Rule 

374 (eff. Feb. 1, 1994). In addition, attorney fees on appeal can be sought in the circuit court 

after the hearing on the petition for a rule to show cause.

¶ 5 FACTS

¶ 6 1. The Petition for Discovery Before Suit 

¶ 7 On November 20, 2012, Guava filed a petition for discovery before suit pursuant to Illinois 

Supreme Court Rule 224 (eff. May 30, 2008), naming Comcast as a respondent. According to 

the petition for discovery before suit, Guava is “a limited liability company that operates 

protected computer systems, including computer systems accessible in St. Clair County,” and 

these computer systems distribute third-party adult entertainment content and generate revenue 

by requiring third parties to pay a fee for accessing their distribution systems. Members are 

assigned a username and password in order to access the distribution system. The petition for 

discovery before suit alleged that Comcast is an Internet Service Provider (ISP) that provides 
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Internet services to certain subscribers (the Does), whom the petition seeks to identify “so that 

[Guava] may file an action for computer fraud and abuse and computer tampering against 

them.” With regard to venue, the petition for discovery before suit alleged that venue is proper 

“because at least one of the Doe [d]efendants resides in St. Clair County” and because 

“Comcast transacts business in St. Clair County.”

¶ 8 Attached to the petition for discovery before suit as “Exhibit A” is a list of approximately 

300 IP addresses, which the petition defines as “a unique number that is assigned to Internet 

users by an ISP at a given date and time.” According to the petition for discovery before suit, 

these IP addresses were identified by Guava via computer security software to be associated 

with individuals who used stolen usernames and passwords to gain unauthorized access to 

Guava’s protected computer systems. Once the IP addresses were ascertained, Guava used a 

publicly available reverse-lookup database on the Internet to determine that Comcast was the 

ISP that issued the 300 IP addresses set forth in “Exhibit A.” The petition for discovery before 

suit requested an order requiring Comcast to disclose personal identifying information of all of 

the Comcast subscribers associated with these 300 IP addresses. In the petition, Guava states 

that the alleged facts support a claim against the Does under the federal Computer Fraud and 

Abuse Act (18 U.S.C. § 1030(g) (2012)), as well as a claim under section 16D-3(c) of the 

Illinois Computer Crime Prevention Law (720 ILCS 5/16D-3(c) (West 2010) (now 720 ILCS 

5/17-51(c) (West 2012))).

¶ 9 2. The Verification

¶ 10 Guava attached a verification to the petition for discovery before suit, pursuant to section 

1-109 of the Illinois Code of Civil Procedure (735 ILCS 5/1-109 (West 2012)). The signature 

line of the verification stated that the verification was signed by an “Alan Mony−Declarant.” 

The notary stamp stated that the verification was subscribed and sworn to on November 20, 

2012, the date the petition was filed, before Joshua James Marschall, a notary public in the 

state of Minnesota whose commission was to expire on January 31, 2013. There were no 

markings on the verification to indicate it had been faxed, and the font was different than that 

of the petition. The relationship of “Alan Mony−Declarant” to Guava was not stated in the 

petition or in the verification.

¶ 11 3. Comcast’s Motion to Dismiss

¶ 12 On December 10, 2012, Comcast filed a motion to dismiss, stating that Guava sought to 

discover the identities of persons who did not reside in St. Clair County. Accordingly, Comcast 

argued that the circuit court would not have personal jurisdiction over the individuals, nor 

would the circuit court be a proper venue for an action against them. In support of its argument, 

Comcast attached a printout showing the customer cities and counties for the IP addresses 

listed in the petition for discovery before suit. The printout shows that the IP addresses were 

associated with counties such as Will, Cook, Du Page, Winnebago, McHenry, Lake, 

Sangamon, Macon, McLean, and De Kalb. Comcast further argued that even if one or more of 

the individuals could be connected to St. Clair County, joinder in one suit in St. Clair County 
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would be impermissible under Illinois law, such that discovery of all of them in one petition for 

discovery before suit would be improper. However, Comcast did not argue that it was not a 

resident of St. Clair County or that it does not transact business there.

¶ 13 The motion to dismiss also noted that Guava did not plead that it is incorporated in Illinois, 

does any business in Illinois, or is a registered foreign corporation entitled to bring claims and 

lawsuits in Illinois courts. Accordingly, Comcast argued that Guava did not have standing to 

bring this action for discovery before suit. In addition to its objections to Guava’s standing to 

sue in Illinois, personal jurisdiction, and venue, Comcast argued that the petition for discovery 

should be dismissed because the petition fails to state causes of action that could be brought 

against any defendant Guava seeks to identify.

¶ 14 Comcast’s motion to dismiss outlined Guava and its counsel’s history of filing similar 

lawsuits throughout the country, seeking the issuance of subpoenas to ISPs requesting that they 

identify subscribers or customers to whom certain IP addresses were assigned at the time of the 

alleged hacking activity. Comcast quoted a judge from the federal court for the Central District 

of California, who explained, in an unpublished order, the litigation tactics that have been used 

in such suits take the form of actions for copyright infringement in the federal courts. MCGIP, 

LLC v. Does 1-149, No. C 11-02331 LB, 2011 WL 4352110 (N.D. Cal. Sept. 16, 2011).1

According to the California court, in these cases, a plaintiff sues anywhere from a few to 

thousands of Doe defendants for copyright infringement in one action and seeks leave to take 

early discovery. Id. at *4 n.5. Once the plaintiff obtains the identities of the IP subscribers 

through early discovery, it serves the subscribers with a settlement demand. Id. The 

subscribers, often embarrassed about the prospect of being named in a suit involving 

pornographic movies, settle. Id. Comcast argued that Guava did not intend to institute an action 

against the Does, and thus, instituted this action for an improper purpose.

¶ 15 4. The Circuit Court’s Initial Order

¶ 16 On December 12, 2012, the circuit court entered an order denying Comcast’s motion to 

dismiss and granting Guava’s petition for discovery before suit. The order did not address 

Comcast’s arguments regarding personal jurisdiction, venue, standing, or the insufficiency of 

 

1The Honorable Otis D. Wright II, a judge for the federal district court for the Central District of 

California, in an order issuing sanctions against, inter alia, Paul Duffy, Guava’s counsel in this case, 

characterized the attorney for MCGIP, LLC, Brett Gibbs, as a “redshirt” being controlled by several 

attorneys, including Duffy. Ingenuity 13 LLC v. Doe, No. 2:12-cv-8333-ODW, 2013 WL 1898633, 

at *1 (C.D. Cal. May 6, 2013). Although this order issuing sanctions is not contained in the record on

appeal, because it was entered after the notice of appeal was filed, this court, in an order dated July 23, 

2013, took judicial notice of the contents of the order pursuant to Vulcan Materials Co. v. Bee 

Construction, 96 Ill. 2d 159, 166 (1983). However, it is important to note that, for the purposes of this 

opinion, this court takes judicial notice of the contents of the motion for sanctions and any other 

unpublished orders of other courts, not as proof of the findings of fact contained therein, but only as 

proof of the fact that such an order exists to provide context for the allegations made in the petition for 

rule to show cause and the circuit court’s order denying same. See id. (a court may not take judicial 

notice of facts contained in pleadings in a case not involving the same parties). 
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the causes of actions that Guava claimed to have against the Does. The order required Comcast 

to provide all of the Does with copies of the petition and order by December 26, 2012. Any 

Doe seeking to file an objection or a motion to quash, dismiss, or sever was required by the 

order to do so by filing such a pleading with the clerk of the circuit court by January 25, 2013. 

Except as to those subscribers who filed such a pleading by that date, Comcast was ordered to 

provide Guava, by January 30, 2013, with the name, address, phone number, email address, 

and Media Access Control (MAC)2 address for each of the Does to whom Comcast assigned 

an IP address as set forth in Exhibit A of the petition. Comcast was ordered to withhold the 

identifying information for any objecting Doe, pending resolution by the circuit court of the 

objections. All objections were set for hearing on February 13, 2013.

¶ 17 5. The Doe Objections and Petition for Rule to Show Cause

¶ 18 Forty-five Does filed objections to the circuit court’s order that their personal information 

be disclosed to Guava. On January 14, 2013, one of the Does, identified by IP address number 

68.58.68.84, filed a “Petition For Rule to Show Cause Why Petitioner Guava, LLC a/k/a 

Lightspeed Media, Its Officers and Directors, Declarant Alan Moay, Steve Jones, Paul A. 

Duffy and/or Kevin T. Hoerner Should Not Be Held in Contempt of Court And For Other 

Sanctions” (petition for rule to show cause).3 According to the petition for rule to show cause, 

Guava is, upon information and belief and according to the government of St. Christopher 

(Kitts) and Nevis, as well as Lightspeed’s own prior lawsuits, a wholly or partially owned 

subsidiary of Lightspeed Media Corporation (Lightspeed) seeking to enforce rights as to what 

Lightspeed purports is copyrighted adult material. Lightspeed is an Arizona-based corporation 

organized under the laws of the State of Arizona.

¶ 19 The petition for rule to show cause alleged that Guava’s counsel, Paul Duffy, was 

previously associated with Prenda Law, LLC, a Chicago-based law firm which has filed 

hundreds of copyright infringement lawsuits across the country alleging that ISP subscribers 

illegally downloaded pornography, including a federal case interlinked with a fraudulent 

affidavit issue concerning an “Alan Cooper.”4 The petition for rule to show cause alleged that 

 

2A MAC address is a hardware identification number that uniquely identifies each device on a 

network and is manufactured into every network card, such as an Ethernet card or Wi-Fi card, and 

therefore cannot be changed. TechTerms.com, http://www.techterms.com/definition/macaddress (last 

visited Mar. 5, 2014). 

3We note that the petition for rule to show cause and all of its attachments refer to the name on the 

signature line of the verification attached to Guava’s petition for early discovery as “Alan Moay.” As

stated above, the name on the signature line of the verification attached to Guava’s petition originally 

filed in the record is “Alan Mony.” 

4

Judge Otis Wright, in his order issuing sanctions in Ingenuity 13 LLC, found that Paul Duffy, 

along with other attorneys associated with the former Prenda Law, stole the identity of Alan Cooper, a

groundskeeper for one of the attorneys, and fraudulently signed his name to a copyright assignment, 
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the verification attached to Guava’s petition for discovery before suit contained a false 

notarization that lacked the notary’s printed name, notary stamp, jurisdiction, and commission 

number, and that an exhaustive set of skiptrace and other reports confirmed that “Alan Moay” 

was a bogus name.5

 The petition for rule to show cause pointed out additional irregularities in 

the verification, which this court has noted above, including the difference in the font and the 

fact that there were no facsimile time stamps on the verification, despite the fact that it was 

dated on the day of filing.

¶ 20 In addition to the irregularities in the verification, the petition for rule to show cause 

alleged that Guava’s filing of the petition for discovery before suit was frivolous because 

Guava had admitted in federal court that identifying a subscriber associated with an IP address 

does not necessarily identify an alleged “hacker.” Finally, the petition for rule to show cause 

accused Guava of extorting the information received pursuant to the circuit court’s order by 

sending settlement demand letters to such subscribers before ascertaining their actual 

involvement with the alleged hacking activity. The petition for rule to show cause requested 

that the circuit court find officers of Lightspeed and/or Guava, as well as “Alan Moay” or the 

declarant referred to in the verification, Paul Duffy, and Kevin Hoerner to be found in criminal 

contempt of court as well as civil contempt, award attorney fees and costs, notify the Office of 

the Attorney General and/or United States Attorney’s Office, refer Paul Duffy and Kevin 

Hoerner to the Illinois Attorney Registration and Disciplinary Commission, dismiss the 

petition for discovery before suit, and impose whatever sanctions and other relief as the circuit 

court deems just.

¶ 21 The petition for rule to show cause was supported by several exhibits. We set forth the 

content of these exhibits at some length in order to provide context for the allegations that are 

made in the petition for rule to show cause. The exhibits included pleadings in a federal court 

case from the Central District of California, captioned Ingenuity 13 LLC v. Doe, No. 

 

holding him out to be an officer of AF Holdings, when he had no such affiliation. Ingenuity 13 LLC v. 

Doe, No. 2:12-cv-8333-ODW, 2013 WL 1898633 (C.D. Cal. May 6, 2013). Judge Wright found that 

Duffy conspired with the other attorneys to form AF Holdings and Ingenuity 13, along with other 

entities, for the sole purpose of litigating copyright-infringement lawsuits and that these entities, 

created off-shore, have no assets other than several copyrights to pornographic movies, and that there

are no owners and officers, making Duffy and the other attorneys de facto owners and officers. Id. 

5As outlined earlier in this opinion, the verification page attached to Guava’s petition for discovery 

before suit does contain the notarization statement, the notary’s printed name, stamp, jurisdiction, and 

commission number, and the signature line reads “Alan Mony” and not “Alan Moay.” From the copy 

John Doe 68.58.68.84 appended to its petition for rule to show cause, which was provided by Comcast 

pursuant to the circuit court’s December 12, 2012, order, it does appear that these elements of the 

notarization are missing and that the signature line reads “Alan Moay,” which could be due to loss of 

clarity from Comcast’s copying of the orders and distributing them to the Does. In any event, due to the 

discrepancy, the skiptrace and other reports appended to the petition for rule to show cause resulted 

from a search for a person named “Alan Moay,” and not “Alan Mony,” so have no relevance to the issue 

of whether the person who purportedly signed the verification actually exists. 
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2:12-cv-08333-DMG-PJW. From the pleadings, it appears that the John Doe in that case filed 

through counsel, Morgan Pietz,6

 an ex parte application for leave to take early discovery and 

to stay the return date on an outstanding ISP subpoena seeking the John Doe’s identity. The 

ex parte application sought to propound a series of special interrogatories and document 

requests to Ingenuity 13 LLC and its counsel, Prenda Law. The interrogatories and document 

requests sought to identify “Alan Cooper,” a person they claimed to be the true principal of 

Ingenuity 13 LLC, to confirm that such a person actually existed and had an actual relationship 

with Ingenuity 13 LLC. According to the ex parte application, there was reason to believe that 

Prenda Law had misappropriated Alan Cooper’s identity without his knowledge and consent, 

holding him out in federal filings to be the principal of Ingenuity 13 LLC, which the 

application alleged was a shell entity organized in St. Kitts and Nevis. In addition, the 

application stated that circumstances seemed to suggest that the plaintiff’s lawyers were the 

real but undisclosed parties in interest.7

¶ 22 On January 25, 2013, an objection to the order requiring Comcast to disclose the Does’ 

identities was filed by two of the Doe appellants, by and through their counsel, Morgan Pietz, 

an attorney from California. One of the objections to the petition for early discovery contained 

in that motion to quash is that the petition for early discovery fails to plead specific facts 

showing jurisdiction and venue are proper in St. Clair County. The motion to quash pointed out 

that the petition for early discovery alleges that at least one of the Does lives in St. Clair 

County. Although Exhibit A to the petition for early discovery lists over 300 IP addresses 

allegedly associated with hacking activity, it does not identify geographic locations associated 

with these IP addresses or identify which, if any, of these IP addresses have actually been 

geo-located to St. Clair County. The motion to quash alleged that geo-location of an IP address 

to a particular geographic area, generally a given town, is easily accomplished using publicly 

available websites. The motion to quash alleged that Prenda Law routinely used these tools in 

other lawsuits, and indeed, must have used the tool here for this case in order to group together 

IP addresses from Illinois. As explained above with regard to Comcast’s motion to dismiss, 

none of the IP addresses were associated with St. Clair County.

¶ 23 The affidavit of Morgan Pietz was also filed on January 25, 2013. According to the 

affidavit, Mr. Pietz is an attorney licensed in California who represents ISP subscribers who 

have been targeted by Ingenuity 13 LLC, through its counsel Prenda Law, formerly known as 

Steele Hansmeier, in copyright infringement cases that Ingenuity 13 filed in both the Central 

District of California and the Northern District of California. Mr. Pietz averred that he also 

represents other clients in other cases brought by Prenda Law on behalf of other entities, 

 

6Morgan Pietz is also counsel in this case for one of the Doe appellants. 

7As previously mentioned, in a later order, the district court found the allegations to be true and 

ordered sanctions against all of the attorneys it found to have been involved, including Paul Duffy, 

Guava’s counsel in this case. Ingenuity 13 LLC v. Doe, 2013 No. 2:12-cv-8333-ODW, 2013 WL 

1898633 (C.D. Cal. May 6, 2013).
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sometimes along with local counsel, in other courts. This includes cases brought by Prenda on 

behalf of Lightspeed Media Corporation and Guava.

¶ 24 Mr. Pietz’s affidavit outlines the history of Prenda Law, which he avers was headed by 

Paul Duffy, Guava’s counsel in this case. Mr. Pietz’s affidavit details his knowledge of Prenda 

Law’s use of “a stream of unrelenting, debt collector style harassment designed to pressure ISP 

subscribers to quickly settle their cases” where courts have allowed Prenda to utilize the 

subpoena power to obtain subscriber information from ISPs. According to Mr. Pietz’s 

affidavit, Prenda has used settlement demand letters and machine-dialed phone calls made by 

people who “are similar to professional telemarketers or debt collectors, who often work from 

specific guidelines, and are possibly paid on commission,” to induce ISP subscribers to settle.

¶ 25 Mr. Pietz’s affidavit also directs the circuit court’s attention to AF Holdings LLC v. Doe, 

No. C 12-2049 PJH, 2013 WL 97755 (N.D. Cal. Jan. 7, 2013), in which Brett Gibbs, “of 

counsel” for Prenda Law, filed on behalf of AF Holdings a complaint against 135 Doe 

defendants, identified only by IP addresses, alleging that each of them had infringed AF 

Holdings’ copyright by illegally downloading a pornographic video. AF Holdings requested 

expedited discovery in order to discover the identity of the subscribers associated with the IP 

addresses, which was granted. Id. at *1. On January 19, 2012, noting that more than 150 days 

had expired since the order authorizing expedited discovery was entered, the court issued an 

order to show cause why the Doe defendants should not be dismissed based on AF Holdings’ 

failure to effectuate service on any identified Doe. Id. On February 22, 2012, the court ordered 

AF Holdings to provide supplementary information. Attached to Mr. Pietz’s affidavit is what 

Mr. Pietz purports to be a report that Brett Gibbs filed in response to the court’s order, which 

discloses that over the 18 months prior, Prenda Law, formerly known as Steele Hansmeier, had 

filed 118 multiple-defendant cases, against 15,878 Doe defendants, but had served none of the 

John Does in any of the cases.

¶ 26 In his affidavit, Mr. Pietz also refers to instances where Brett Gibbs, in an attempt to 

request an extension of time to serve John Does in the federal cases, has explained to the 

federal courts that his failure to serve the John Does should be excused because he could not 

form the “reasonable basis” under federal rules necessary to support a factual allegation that an 

ISP subscriber is the actual person who downloaded the copyrighted material without some 

kind of further discovery beyond the mere fact that a person happens to pay the Internet bill.

¶ 27 For example, in Boy Racer, Inc. v. Does 1-52, No. 11-CV-2329-PSG, 2011 WL 7402999 

(N.D. Cal. Sept. 13, 2011), which is referenced in Mr. Pietz’s affidavit, the court ordered the 

plaintiff, who was represented by Brett Gibbs as “of counsel” for Prenda Law, to show cause 

why the court should not dismiss its claims for lack of service. In that case, counsel told the 

court, in applying for an order allowing early discovery of the names and addresses of the ISP 

subscribers associated with specific IP addresses, that “ ‘[t]he only way that Plaintiff can 

determine Defendant[s’] actual names is from the ISPs to which Defendants subscribe and 

from which Defendants obtain Internet access,’ ” and that “ ‘[t]hrough the information they 

gather from the ISPs via these subpoenas, the plaintiffs are able to fully identify–i.e. retrieve 

name, address, telephone number, e-mail address, and [MAC] information–each *** network 

user suspected of violating the plaintiff’s copyright.’ ” (Emphases in original.) Id. at *1. 
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However, the plaintiff later admitted that, its previous representation notwithstanding, the 

subpoenas were not sufficient to fully identify the network user suspected of violating the 

plaintiff’s copyright, but rather, the plaintiff would require nothing less than an inspection of 

the subscriber’s electronically stored information and tangible things, including each of the 

subscriber’s computers and the computers of those sharing his Internet network. Id. at *2.

¶ 28 The court concluded, from Brett Gibbs’s admissions in response to the court’s inquiry as to 

why no defendant had been served, that the identifying information of the ISP subscriber does 

not tell the plaintiff who illegally downloaded the plaintiff’s works, and, therefore, who the 

plaintiff will name as the defendant in the case, but rather, that the copyright infringer, and 

proper defendant, could be the subscriber, or another member of his household, or any number 

of other individuals who had direct access to the subscribers’ network. Id. The court found that 

presumably, every desktop, laptop, smartphone, and tablet in the subscriber’s residence, and 

perhaps any residence of any neighbor, houseguest, or other sharing his Internet access, would 

be fair game. Id. Finding that such an extensive, expensive, and highly intrusive “fishing 

expedition” was outside the purview of federal expedited discovery rules, which only allow for 

early discovery where the requested discovery would clearly uncover the identities sought, the 

court withdrew its order granting limited discovery, denied any pending or proposed requests 

for further discovery, and ordered the plaintiff to show cause why the court should not dismiss 

the action for failure to effectuate service on the defendants. Id. at *3.

¶ 29 Another notable attachment to Mr. Pietz’s affidavit is the transcript of a motion hearing 

before the federal district court for the middle district of Florida in a case captioned Sunlust 

Pictures, LLC v. Nguyen, No. 8:12-CV-1685 (Sunlust), dated November 27, 2011. In the 

transcript, local counsel for Prenda Law, Jonathon Torres, was questioned by the court under 

oath regarding Prenda Law’s relationship with the plaintiff, Sunlust Pictures, LLC (Sunlust), 

and the identity of the corporate representative that appeared on behalf of Sunlust Pictures, 

Mark Lutz. Mr. Torres testified that he was contacted by Brett Gibbs and asked to act as local 

counsel, but that his understanding was that Prenda Law was representing Sunlust and that 

Paul Duffy is a principal of Prenda Law. The court indicated that this statement was contrary to 

a letter the court had received from Paul Duffy stating that he was not representing Sunlust.

¶ 30 In addition to the questions regarding Prenda Law and Paul Duffy’s involvement in the 

Sunlust case, Mark Lutz testified that he is not an officer of Sunlust but was hired to appear in 

court and to represent himself as a corporate representative. He was not aware of the identity of 

the president, vice president, secretary, or any other corporate representative. He testified that 

he also serves in this capacity for Guava, the plaintiff in this case. The court granted local 

counsel’s motion to withdraw and dismissed the case for the plaintiff’s failure to appear at the 

hearing, failure to present a lawful agent, and attempted fraud on the court by offering up a 

person who had no authority to act on behalf of the corporation as a corporate representative. 

The court also indicated it would hear a motion for sanctions against Paul Duffy for his lack of 

candor in relation to his connection with the case.

¶ 31 On February 11, 2013, Paul Duffy and Kevin Hoerner filed, on behalf of Guava, a series of 

responses to the various objections of the Does and the petition for rule to show cause. One of 

the responses states: “[U]nknown individuals hacked into Petitioner’s computer systems and 
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gained unauthorized access to private and protected information. Petitioner does not know the 

true identities of these individuals, but has identified the individuals by the [IP] addresses 

***.” That response goes on to state, “In order to identify these unknown individuals and bring 

a lawsuit against them, Petitioner sought to identify them through a Petition for Discovery 

before suit ***.” That response also makes the representation that “Movants will get a chance 

to raise their arguments once they are named defendants in a lawsuit.” The response did not 

address the allegations made in the petition for rule to show cause.

¶ 32 Another response, signed by Kevin Hoerner, addressed John Doe 68.58.68.84’s argument 

regarding the possibility that the verification on the petition for discovery before suit was a 

forgery by stating: “Alan Mony, not ‘Moay’ verified the Petition. Furthermore, [the 

verification] was notarized by a notary public. If Movant seeks to challenge the Petition, 

(which as a nonparty he may not), he should focus on the actual person signing and the fact it 

was notarized.”

¶ 33 Although not a Doe appellant, it is worth noting that one of the Does who filed an objection 

to the circuit court’s order requiring Comcast to disclose the identity of the IP address 

subscribers was an “entity” Doe identified by IP address 50.77.161.249. In its motion to quash 

the “entity,” Doe alleged that it is a social service, nonprofit organization that assists 

individuals and families with their housing and financial needs. It owns and maintains a 

number of computers that are utilized by its employees and provided for public and client use 

over a wireless network. The entity Doe also pointed out that it is possible for hackers to 

“spoof” existing IP addresses, which will register a false IP address when a hacker accesses a 

website, causing their activities from a completely different location to appear to come from an 

innocent person’s location. Additionally, wireless routers, which allow persons to connect to a 

computer accessing the Internet from a remote device over the airwaves, and to access the 

Internet through the connection assigned with the IP address to that computer’s connection, are 

commonplace. Wireless routers may be accessed from across the street, down the block, and in 

some cases even farther away, according to the motion to quash.

¶ 34 On February 4, 2013, John Doe 68.58.68.84 filed a notice to produce pursuant to Illinois 

Supreme Court Rule 237 (eff. July 1, 2005), commanding Guava to produce the following 

persons for all hearings on contempt and sanctions: (1) Alan Moay8

; (2) Paul Duffy; (3) Kevin 

Hoerner; (4) Steve Jones9; and (5) any and all officers, directors, managers, and other Guava 

and Lightspeed personnel responsible for filing the petition for discovery before suit.

¶ 35 On February 7, 2013, two Does, identified by IP addresses 67.162.51.34 and 71.57.3.17, 

filed a motion for a protective order alleging that because their objection to the circuit court’s 

order contained a typographical error regarding their IP address, their information was 

 

8Again, this was a misspelling of the name on the signature line of the verification of the petition for 

discovery before suit, probably due to fading during copying and distribution by Comcast. The 

signature line on the original verification contained in the record is “Alan Mony.” 

9

Steve Jones is the registered agent for Lightspeed listed in the Arizona Secretary of State records. 
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disclosed to Guava. The motion for a protective order stated that one of the Does had received 

a settlement demand letter from Guava as a result of the disclosure.

¶ 36 On February 12, 2013, John Steele of Prenda Law filed an entry of appearance on behalf of 

Guava. The Doe movants and Guava appeared at a hearing on February 13, 2013. Kevin 

Hoerner and John Steele appeared on behalf of Guava. Morgan Pietz appeared on behalf of two 

of the Doe appellants. Mr. Pietz presented a redacted copy of a settlement demand letter that 

was received by a Doe whose information was disclosed by Comcast pursuant to the circuit 

court’s initial order. The letter was dated January 30, 2013, and informs the Doe that his or her 

Internet account was observed distributing stolen files and that based on this information, 

Guava “will seek to hold you (or the person who used your Internet account) liable for this 

conduct.” The letter further states, “[I]f we are forced to proceed against you individually for 

the acts we observed your subscriber account committing, the actual complaint naming you as 

a defendant could possibly include additional counts ***.” After explaining the potentially 

high costs of litigation, the letter explains that Guava is willing to discuss resolution of the 

claims, but the amount that it would be willing to accept to resolve the matter would increase 

over time. The letter concludes with the following statement: “PLEASE BE ON NOTICE: Due 

to the serious nature of this matter, we are referring this matter to our attorneys for further 

prosecution against you in 21 days if we do not hear from you.” Attached to the letter is a 

document entitled “Notice of Offer of Settlement.” The document states that Guava believes 

that, “due to several factors, including our good faith offer to settle at this early stage of the 

case, we would be entitled to full damages,” and that “[i]n exchange for a comprehensive 

release of all legal claims in this matter, which will enable you to avoid becoming a named 

defendant in a lawsuit, we will accept, $4,000.” The Doe can send a check or money order 

payable to Guava or complete and fax a credit card payment authorization. Once Guava has 

processed the payment, Guava states that it will send a signed release as confirmation that the 

payment has been processed.

¶ 37 After some argument regarding whether the Doe movants were entitled to file a notice to 

appear pursuant to Illinois Supreme Court Rule 237 (eff. July 1, 2005), to compel Guava’s 

representatives and attorneys responsible for filing the petition for discovery before suit to 

attend a hearing on the petition for rule to show cause, the hearing was continued to February 

21, 2013.

¶ 38 On February 15, 2013, a number of the Doe movants filed a consolidated reply in support 

of their objections to the circuit court’s order requiring Comcast to disclose their identities. In 

the consolidated reply, the Doe movants alleged that “Alan Mony,” who Guava, in its response 

to the objections, stated had signed the verification of the petition for discovery before suit on 

its behalf, was also a bogus name, and that there is no record of such a person. The Doe 

movants stated in their consolidated reply that the closest name found anywhere in the United 

States is an “Allan Mony.” The consolidated reply points out, however, that a man named 

“Allan Mooney” has previously been listed as the manager of MCGIP, LLC, “one of Prenda’s 

earlier mysterious shell company plaintiffs (which Prenda’s lawyers probably own).” The 

consolidated reply further states that a man using the email address “amooney29@gmail.com” 

is apparently involved in the online adult entertainment business, per an “Adult Industry” news 
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article where Allan Mooney was selling the domain name “orgasms.com.” Finally, the 

consolidated reply states that there is an “Allan Mooney” who is a current client of Alpha Law, 

a new law firm name being used by John Steele’s former or current law partner, Paul 

Hansmeier. These allegations are supported by exhibits attached to the consolidated reply.

¶ 39 6. February 21, 2013, Hearing

¶ 40 A hearing on all pending motions was held on February 21, 2013. From the bench, the 

circuit court ordered Guava’s counsel, John Steele and Kevin Hoerner, to give the Doe 

movants the correct name and spelling of the person who signed the verification on the petition 

for discovery before suit. John Steele stated that he had prepared an affidavit that was notarized 

by a different notary and signed by “Alan Mooney,” attesting to the fact that Alan Mooney 

signed the previous verification, which contained a typographical error on the signature line. 

This affidavit is more specific than the original verification, stating, “[M]y company is 

suffering severe financial loss due to the criminal activity outlined in the petition and I believe 

it is my responsibility as a principal of Guava, LLC to seek redress in the courts.” This is the 

first statement in any of the pleadings purporting to identify a corporate officer of Guava.

¶ 41 From the bench, the circuit court stated that it did not believe the Doe movants were 

necessary parties to the litigation, and therefore they could not file a notice to appear pursuant 

to Illinois Supreme Court Rule 237 (eff. July 1, 2005). The circuit court limited the issues to be 

argued at the hearing to those directly related to the Does’ objections to the disclosure of the 

information sought in the petition for discovery before suit pursuant to Illinois Supreme Court 

Rule 224 (eff. May 30, 2008), precluding the Doe movants from making arguments relating to 

jurisdiction, venue, standing, or their petition for rule to show cause.

¶ 42 With regard to the arguments on the merits of the petition for discovery before suit, that 

Guava had not stated a proper claim against the Does under either the federal Computer Fraud 

and Abuse Act (18 U.S.C. § 1030(g) (2012)) or section 16D-3(c) of the Illinois Computer 

Crime Prevention Law (720 ILCS 5/16D-3(c) (West 2010) (now 720 ILCS 5/17-51(c) (West 

2012))), the circuit court expressed its belief that these arguments should be addressed if and 

when a suit is actually filed against one of the Does. The circuit court ruled that Guava had 

made a showing that the IP addresses and people who are responsible for them may be 

responsible for Guava’s damages.

¶ 43 7. The Circuit Court’s Orders

¶ 44 The circuit court’s order, entered that same day, states that Guava’s “motion to strike Does’ 

Rule 237 Notice, including all requests therein, is allowed, including the Petition for Rule.” 

The order also stated: “All Doe objections to the disclosure of identifying information are 

overruled and denied. The identifying personal information shall be limited to cases involving 

Guava, LLC and shall be limited prospectively. The date for disclosure by Comcast will be set 

forth in a supplemental order of this Court.” On February 22, 2013, the circuit court entered an 

order granting Comcast seven days from the date of the order to disclose the identifying 

information of the Doe movants.
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¶ 45 On February 26, 2013, one of the Doe movants, identified by IP address 68.58.68.84, filed 

a motion for reconsideration. In addition, the Doe appellants filed a motion to stay the 

judgment pending a hearing on the motion for reconsideration and the outcome of an appeal. 

On March 1, 2013, the circuit court denied the motion for stay. The record does not contain a 

ruling on the motion for reconsideration.

¶ 46 8. Proceedings on Appeal

¶ 47 On March 1, 2013, the Doe appellants filed a notice of appeal from the circuit court’s 

orders of February 21 and 22, 2013. That same day, the Doe appellants filed an emergency 

motion to stay the judgment pending appeal, which this court granted. See Ill. S. Ct. R. 305 

(eff. July 1, 2004). The Doe appellants filed their opening brief on August 12, 2013, and 

Guava’s brief was due September 16, 2013. No brief was filed, and on October 1, 2013, this 

court sent Guava, through their attorneys of record, Paul Duffy and Kevin Hoerner, a notice 

that the brief was overdue.

¶ 48 On October 8, 2013, Kevin Hoerner responded to this court’s notice that Guava’s brief was 

overdue by filing a motion for leave to withdraw as attorney of record for Guava, stating that 

he had not been retained by Guava to defend this appeal. The Doe appellants filed an objection 

to Kevin Hoerner’s motion, arguing that Hoerner’s conduct in filing a nonmeritorious lawsuit 

and filing false pleadings and documents was at issue in this appeal, and as such, he should 

only be permitted to withdraw as an attorney of record if he remains subject to the jurisdiction 

of this court and the circuit court for his conduct. This court granted Kevin Hoerner leave to 

withdraw as counsel of record for purposes of this appeal on November 1, 2013.

¶ 49 Paul Duffy filed a motion seeking an extension of time to file a brief on behalf of Guava on 

October 10, 2013, which this court granted. However, a brief was never filed. On December 5, 

2013, this court sent another letter to Paul Duffy stating that this case would be decided on the 

basis of the record on appeal and the appellants’ brief, which were filed with this court. On 

December 19, 2013, this court received a motion by Paul Duffy to file a brief on behalf of 

Guava instanter. In the motion, Paul Duffy claimed that he prepared a brief and mailed it on 

November 7, 2013, and that the brief must be “lost in the mail,” despite the fact that no one had 

ever checked out the record on appeal on behalf of Guava. This court denied Guava’s motion to 

file a brief instanter on January 10, 2014.

¶ 50 On February 18, 2014, the Doe appellants filed, in this court, a motion for attorney fees 

pursuant to Illinois Supreme Court Rules 137 (eff. Jan. 4, 2013), 375 (eff. Feb. 1, 1994), and 

366(a)(3) to (5) (eff. Feb. 1, 1994). The basis for the motion for attorney fees is essentially the 

same as that set forth in the petition for rule to show cause that the Doe appellants filed in the 

circuit court. The Doe appellants argued that this court should make the award of attorney fees 

based on Guava’s filing of the petition for discovery before suit, which contained what the Doe 

appellants assert are false allegations concerning the nature of IP addresses, the subscribers’ 

alleged acts, and the existence of actual damages. The Doe appellants also assert that the 

falsified and forged verification also provides a basis for this court to award attorney fees. 

Guava did not file a response to the motion for attorney fees. On March 5, 2014, this court 

entered an order taking the Doe appellants’ motion for attorney fees with the case. On April 3, 
- 15 - 

2014, Guava filed a motion to strike the Doe appellants’ motion for attorney fees and a motion 

to dismiss the appeal.

¶ 51 ANALYSIS

¶ 52 Although Guava did not file an appellee’s brief in this case, this court may not reverse the 

judgment of the circuit court pro forma. First Capitol Mortgage Corp. v. Talandis 

Construction Corp., 63 Ill. 2d 128, 131 (1976). Instead, this court must examine the points 

raised by the appellant to see if a reversal is merited. Id. at 132. We may reverse the judgment 

of the circuit court if we find that the appellant’s brief demonstrates prima facie reversible 

error and the contentions in the brief find support in the record. Id. at 133. With these principles 

in mind, we consider the issues raised by the Doe appellants on appeal.

¶ 53 1. The Rule 224 Petition for Discovery Before Suit

¶ 54 The first two issues raised on appeal concern the propriety of the order granting Guava’s 

petition for discovery before suit. Ill. S. Ct. R. 224 (eff. May 30, 2008). First, the Doe 

appellants argue that the circuit court lacked subject matter and personal jurisdiction over the 

claims and parties. Second, the Doe appellants argue that Guava was not entitled to discovery 

before suit pursuant to Rule 224 because the petition did not allege a sufficient cause of action 

against the Does and did not seek to identify the Does for purposes of instituting an action 

against them. We will address each of these issues in turn.

¶ 55 a. Subject Matter Jurisdiction

¶ 56 First, the Doe appellants argue that although Guava attempts to state a claim under the 

federal Computer Fraud and Abuse Act (18 U.S.C. § 1030(g) (2012)), as well as a claim under 

section 16D-3(c) of the Illinois Computer Crime Prevention Law (720 ILCS 5/16D-3(c) (West 

2010) (now 720 ILCS 5/17-51(c) (West 2012))), it is really attempting to state a claim 

involving federal copyright law, over which the federal courts have exclusive jurisdiction. See 

17 U.S.C. § 301(a) (2012). Because this issue presents a question of law, and the circuit court 

decided the issue solely on the basis of documents on file, our standard of review is de novo. 

Ploense v. Electrolux Home Products, Inc., 377 Ill. App. 3d 1091, 1096 (2007).

¶ 57 Illinois circuit courts are courts of general jurisdiction having original jurisdiction over all 

justiciable controversies, except (1) cases over which the federal courts have exclusive 

jurisdiction; (2) matters committed to administrative tribunals; and (3) those matters 

committed by the Illinois Constitution to the exclusive jurisdiction of the Illinois Supreme 

Court. See Cohen v. McDonald’s Corp., 347 Ill. App. 3d 627, 632-33 (2004). Guava filed its 

petition pursuant to Illinois Supreme Court Rule 224 (eff. May 30, 2008), which allows for 

discovery before suit of persons who may be responsible for damages. While, as explained in 

further detail below, the nature and propriety of the underlying causes of action that Guava is 

attempting to state against the Doe appellants is germane to whether the Rule 224 petition 

should have been granted, such a determination does not affect the circuit court’s power to rule 

on the Rule 224 petition, which, in and of itself, does not fall into the exclusions to the original 
- 16 - 

jurisdiction of the circuit courts of Illinois as outlined above. Accordingly, we find that the 

circuit court did have subject matter jurisdiction over Guava’s Rule 224 petition for discovery 

before suit.

¶ 58 b. Personal Jurisdiction

¶ 59 The next argument that the Doe appellants make in their brief is that the circuit court lacked 

personal jurisdiction over Comcast and the Does. Again, our standard of review is de novo. 

Ploense, 377 Ill. App. 3d at 1096. Referencing the requirement in Illinois Supreme Court Rule 

224 that “[t]he action for discovery shall be initiated by the filing of a verified petition in the 

circuit court of the county in which the action or proceeding might be brought or in which one 

or more of the persons or entities from whom discovery is sought resides” (Ill. S. Ct. R. 

224(a)(1)(ii) (eff. May 30, 2008)), the Doe appellants argue that neither Comcast nor the Does 

reside in St. Clair County. Although, for reasons detailed below, we find Guava’s allegations 

as to the residence of the Does to be troubling and to merit further inquiry, we find that this 

provision of Rule 224 is a statutory venue provision, rather than a provision relating to 

personal jurisdiction. Jurisdiction and venue are distinct legal concepts, as jurisdiction relates 

to the power of a court to decide the merits of a case, while venue determines where the case is 

to be heard. Baltimore & Ohio R.R. Co. v. Mosele, 67 Ill. 2d 321, 328 (1977). Statutory venue 

requirements are procedural only and do not have any relation to the question of jurisdiction. 

Id. For these reasons, and because Comcast made no objection to the circuit court’s personal 

jurisdiction over it, we cannot say that the circuit court lacked personal jurisdiction over 

Comcast, the named defendant in the Rule 224 action. By providing that Comcast give the Doe 

appellants notice and an opportunity to object, the circuit court essentially granted the Doe 

appellants leave to intervene in this action. The Doe appellants, in turn, availed themselves of 

the personal jurisdiction of the circuit court by entering an appearance and filing an objection. 

Accordingly, we will turn to the merits of the Rule 224 petition.

¶ 60 c. The Merits of the Rule 224 Petition

¶ 61 Illinois Supreme Court Rule 224 provides that “[a] person or entity who wishes to engage 

in discovery for the sole purpose of ascertaining the identity of one who may be responsible in 

damages may file an independent action for such discovery.” Ill. S. Ct. R. 224(a)(1)(i) (eff. 

May 30, 2008). The petition must be verified and must set forth “(A) the reason the proposed 

discovery is necessary and (B) the nature of the discovery sought.” Ill. S. Ct. R. 224(a)(1)(ii) 

(eff. May 30, 2008). We review an order granting or denying a Rule 224 petition for an abuse 

of discretion. Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, ¶ 12.

¶ 62 Our courts have held that in order to protect an anonymous individual from an improper 

inquiry into his or her identity, a Rule 224 petition must state with particularity the facts 

necessary to state a cause of action against the individual whose identity is sought. Id. ¶ 17 

(citing Maxon v. Ottawa Publishing Co., 402 Ill. App. 3d 704, 711 (2010)). More particularly, 

the facts outlining the causes of action that the petitioner has against the person whose identity 

is sought must be sufficient to overcome a motion to dismiss pursuant to section 2-615 of the 
- 17 - 

Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)), although the unidentified 

individual is not required to file such a motion. Stone, 2011 IL App (1st) 093386, ¶ 18. Rather, 

if the petitioner cannot satisfy the section 2-615 standard of pleading in its Rule 224 petition 

for early discovery, then the petitioner has not made an adequate statement that the discovery is 

“necessary” as required by the Rule. Id.

¶ 63 On appeal, the Doe appellants argue, and we agree, that Guava’s petition for discovery 

before suit does not meet the pleading requirements of Rule 224. We find it unnecessary to 

address the Doe appellants’ arguments regarding whether the petition states facts sufficient to 

constitute a cause of action under either the federal Computer Fraud and Abuse Act (18 U.S.C. 

§ 1030(g) (2012)) or section 16D-3(c) of the Illinois Computer Crime Prevention Law (720 

ILCS 5/16D-3(c) (West 2010) (now 720 ILCS 5/17-51(c) (West 2012))) because, contrary to 

the allegations of the petition that the subscribers to the IP addresses are responsible for 

hacking into Guava’s computer systems, such is not necessarily the case.

¶ 64 As one federal court has recognized, “the assumption that the person who pays for Internet 

access at a given location is the same individual who allegedly downloaded a single sexually 

explicit film is tenuous.” In re BitTorrent Adult Film Copyright Infringement Cases, No. 

11-3995(DRH)(GRB), 2012 WL 1570765, at *3 (E.D.N.Y. July 24, 2012). “An IP address 

provides only the location at which one of any number of computer devices may be deployed, 

much like a telephone number can be used for any number of telephones.” Id. “[D]ue to the 

increasing[ ] popularity of wireless routers,” “a single IP address usually supports multiple 

computer devices–which unlike traditional telephones can be operated simultaneously by 

different individuals.” Id. “Unless the wireless router has been appropriately secured (and in 

some cases, even if it has been secured), neighbors or passersby could access the Internet using 

the IP address assigned to a particular subscriber ***.” Id. Accordingly, while Guava’s petition 

for discovery before suit alleges that identifying the ISP subscriber associated with an IP 

address will identify the person who caused its damages, in reality, that person could be the 

subscriber, a member of his or her family, an employee, invitee, neighbor, or interloper. 

Guava’s Rule 224 petition fails to apprise the circuit court of the fact that further discovery 

would be necessary in order to identify an ISP subscriber as the alleged hacker and what steps 

it would take in order to make the factual connections that would be required in order to form a 

reasonable belief that the subscriber is the culpable party. For this reason, Guava’s Rule 224 

petition cannot state with sufficient facts a cause of action against the persons whom the 

petition seeks to identify. This defect alone is a sufficient reason to reverse the circuit court’s 

order allowing the petition.

¶ 65 2. The Petition for Rule to Show Cause/Sanctions

¶ 66 a. Standing in the Circuit Court

¶ 67 The remaining issues on appeal concern the circuit court’s order striking the Doe 

appellants’ petition for rule to show cause and notice requiring the attendance of certain 

representatives of Guava at a hearing on the petition pursuant to Illinois Supreme Court Rule 

237(b) (eff. July 1, 2005). Based on our review of the transcript of the February 21, 2013, 

hearing, the circuit court’s order appears to be based on the premise that the Doe appellants did 
- 18 - 

not have standing to petition the circuit court for a rule to show cause or issue a notice to appear 

pursuant to Rule 237(b). The issue of standing is one of law that we review de novo. 

Nationwide Advantage Mortgage Co. v. Ortiz, 2012 IL App (1st) 112755, ¶ 19.

¶ 68 In its December 12, 2012, order, the circuit court required that Comcast provide the Does 

with notice that their identity was subject to disclosure unless they filed an objection with the 

circuit court by January 25, 2013. In so doing, the circuit court invited the Does to intervene in 

the action, as was wholly appropriate as their interests in the disclosure of their identities was 

the subject matter of the action, and as such, the Does are necessary parties. See Keehner v. 

A.E. Staley Manufacturing Co., 50 Ill. App. 3d 258, 267 (1977) (holding that an individual 

having a substantial interest in a matter such that the matter cannot be resolved without 

affecting that interest is a necessary party). Accordingly, the Doe appellants, by filing their 

objections, became parties to this action and should be afforded the same rights as any other 

party, including the right to file a petition for rule to show cause and a notice to appear at any 

hearing with regard to same pursuant to Illinois Supreme Court Rule 237(b) (eff. July 1, 2005). 

The circuit court erred in striking the petition for rule to show cause and the Rule 237(b) notice 

to appear, and we reverse and remand for an evidentiary hearing on the petition for rule to 

show cause.

¶ 69 b. Motion for Sanctions on Appeal

¶ 70 We turn briefly to the Doe appellants’ motion for sanctions on appeal pursuant to Illinois 

Supreme Court Rules 137 (eff. Jan. 4, 2013), 375 (eff. Feb. 1, 1994), and 366(a)(3) to (5) (eff. 

Feb. 1, 1994), and Guava’s motion to strike and motion to dismiss the appeal. First, we hereby 

deny Guava’s motion to strike the Doe appellants’ motion for attorney fees and to dismiss the 

appeal. Turning to the Doe appellants’ motion for attorney fees, as detailed above, the basis for 

the motion for attorney fees is essentially the same as that set forth in the petition for rule to 

show cause. As outlined in more detail below, this court is alarmed at the allegations set forth 

in the petition for rule to show cause and the motion for sanctions on appeal. However, a 

determination of the merits of these allegations and the degree of culpability to be attributed to 

those responsible for the petition for discovery before suit will require an evidentiary hearing. 

This court is not in a position to adjudicate the merits of the Doe appellants’ allegations of false 

and frivolous pleading, harassment, extortion, identity theft, and forgery. This court is of the 

firm conviction that justice requires inquiry by the circuit court and that a full evidentiary 

hearing of the Doe appellants’ petition for rule to show cause take place. However, because 

this court is not the proper arbiter of these matters, we hereby deny the Doe appellants’ petition 

for attorney fees and sanctions on appeal. Nevertheless, we note that because the Doe 

appellants are the prevailing party in this appeal, they may petition for their costs on appeal 

pursuant to Illinois Supreme Court Rule 374 (eff. Feb. 1, 1994). In addition, attorney fees on 

appeal can be sought in the circuit court after the hearing on the petition for a rule to show 

cause.
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¶ 71 c. Proceedings on Remand

¶ 72 From the record on appeal, as outlined at length throughout the course of this disposition, 

the issues to be addressed in the circuit court upon remand of the Doe appellants’ petition for 

rule to show cause include, but are not necessarily limited to, the following: (1) whether Guava 

and/or its representatives, including its attorneys, knew, or whether through reasonable inquiry 

they should have known, that their allegation that at least one of the IP addresses listed in the 

petition for discovery before suit was associated with a Comcast subscriber who resided in St. 

Clair County was false; (2) whether the verification of the petition for discovery before suit 

was forged; (3) whether the verification was made by a person who is an actual corporate 

representative of Guava; (4) whether Guava was the real party in interest in this action; (5) 

whether Guava is a true limited liability company with standing to institute this action, and, if 

not, whether its representatives and/or attorneys had knowledge of this fact; (6) whether Guava 

ever had the intention of making efforts or reasonable inquiry to uncover sufficient facts to 

form a basis to state a cause of action against the Does or whether its purpose in instituting this 

action was to harass and/or extort the Does without forming a reasonable basis to believe they 

were the culpable parties; (7) whether Guava knew or should have known that its allegation 

that the ISP subscribers associated with the IP addresses listed in Exhibit A to the petition for 

discovery before suit were necessarily the persons against whom there was a cause of action 

was not well-grounded in fact; (8) whether the attorneys who represented Guava in this action 

had personal interests in Guava and whether they intentionally hid such interests from the 

court; (9) whether Guava engaged in sanctionable conduct directed toward those Does whose 

identities were disclosed in this case; and (10) the relative culpability of lead and local counsel 

in relation to any findings of misconduct.

¶ 73 We recognize that the petition for rule to show cause that was filed in the circuit court 

requested sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Jan. 4, 2013), as well as 

punishment for indirect criminal contempt of court. We note that a petition initiating indirect 

criminal contempt proceedings should not have the title “Petition for Rule to Show Cause,” 

which is the designation commonly used for a petition initiating an indirect civil contempt 

proceeding. In re Marriage of Betts, 200 Ill. App. 3d 26, 58 (1990). Instead, a petition initiating 

indirect criminal contempt proceedings should have the title “Petition for Adjudication of 

Criminal Contempt,” because a respondent in indirect criminal contempt proceedings enjoys 

the privilege against self-incrimination and therefore cannot be required to “show cause” why 

he should not be held in indirect criminal contempt. Id. at 58-59. In addition, indirect criminal 

contempt proceedings must generally conform to the same constitutionally mandated 

procedural requirements as other criminal proceedings. Id. at 58. On remand, the Doe 

appellants should be required to amend their pleadings to conform to the requirements that are 

commensurate with the type of relief they are requesting for Guava and/or its representatives’ 

alleged misconduct, and the circuit court shall take care to ensure that the procedural 

requirements necessary to the proceedings are in place.
- 20 - 

¶ 74 CONCLUSION

¶ 75 For the foregoing reasons, we reverse the orders of the circuit court and remand with 

directions that the circuit court dismiss Guava’s petition for discovery before suit, proceed to 

an evidentiary hearing on the Doe appellants’ petition for a rule to show cause, and compel the 

attendance of the persons named in the Doe appellants’ Rule 237 notice to appear. We deny 

Guava’s motion to strike motion for attorney fees and to dismiss the appeal. However, because 

we find that the circuit court is the proper arbiter of the Doe appellants’ allegations of frivolous 

pleading, fraud, identity theft, and extortion, we deny the Doe appellants’ motion for attorney 

fees pursuant to Illinois Supreme Court Rules 137, 375, and 366(a)(3) to (5).

¶ 76 Reversed and remanded with directions; motions denied.