UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MALIBU MEDIA, LLC,

Plaintiff,

vs. Case No. 14-cv-12409

Hon. George Caram Steeh

MICHAEL BRAUN,

Defendant.

/

Paul J. Nicoletti (P44419)

Attorney for Plaintiff

Nicoletti Law, PLC

33717 Woodward Avenue, Suite 433

Birmingham, MI 48009

(248) 203-7800

Bruce T. Wallace (P24148)

Oscar A. Rodriguez (P73413)

Attorneys for Defendant

Hooper, Hathaway, Price,

 Beuche & Wallace

126 South Main Street

Ann Arbor, MI 48104

(734) 662-4426

/

DEFENDANT’S MOTION TO 

DISMISS COMPLAINT

NOW COMES Defendant Michael Braun, by and through his attorneys, 

Hooper, Hathaway, Price, Beuche & Wallace, and moves for dismissal of 

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Plaintiff’s Complaint with prejudice for failure to state a claim upon which relief 

may be granted, pursuant to Fed. R. Civ. P. 12(b)(6). 

The sole issue in this case is whether Plaintiff’s Amended Complaint (Doc 

#6), specifically its single count of Direct Infringement, was sufficiently plead to 

survive a motion to dismiss for failure to state a claim upon which relief may be 

granted. The facts and argument which provide the basis for this motion are set 

forth more fully in the attached memorandum incorporated by reference herein. 

Respectfully submitted, 

HOOPER, HATHAWAY, PRICE,

 BEUCHE & WALLACE

Dated: January 27, 2015 BY: /s/Oscar A. Rodriguez

Bruce T. Wallace (P24148)

Oscar A. Rodriguez (P73413)

Attorneys for Defendant

126 South Main Street

Ann Arbor, MI 48104

(734) 662-4426

orod@hooperhathaway.com

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MALIBU MEDIA, LLC,

Plaintiff,

vs. Case No. 14-cv-12409

Hon. George Caram Steeh

MICHAEL BRAUN,

Defendant.

/

Paul J. Nicoletti (P44419)

Attorney for Plaintiff

Nicoletti Law, PLC

33717 Woodward Avenue, Suite 433

Birmingham, MI 48009

(248) 203-7800

Bruce T. Wallace (P24148)

Oscar A. Rodriguez (P73413)

Attorneys for Defendant

Hooper, Hathaway, Price,

 Beuche & Wallace

126 South Main Street

Ann Arbor, MI 48104

(734) 662-4426

/

BRIEF IN SUPPORT OF DEFENDANT’S

MOTION TO DISMISS

I. INTRODUCTION

Plaintiff Malibu Media, LLC’s Complaint against Defendant Michael Braun 

is one of thousands of cookie-cutter lawsuits arising out of the manner in which 

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Plaintiff makes its sex films available on the World Wide Web. Plaintiff, like in 

virtually every other copyright infringement lawsuit it has filed, alleges that 

“Defendant is a persistent online infringer of Plaintiff’s copyrights” based on the 

claim that Defendant’s IP Address was used through some sort of file sharing 

software to obtain copies of Plaintiff’s films. Plaintiff alleges that between 2012 

and 2014, Defendant’s IP Address and Defendant accessed pornographic videos 

owned by Plaintiff using BitTorrent protocol. Michael Braun has denied all of 

Plaintiff’s allegations as he has never used BitTorrent and has never infringed any 

of Plaintiff’s copyrights.

The U.S. News & World Report reported in February 2012 that more than 

220,000 individuals have been sued since mid-2010 in mass BitTorrent lawsuits, 

many of them accused of illegally downloading pornographic movies. (Exhibit 

A)1

. These “copyright trolls,” as they have become known, use the same basic 

strategy: They log on to BitTorrent, download a movie and mine other 

downloader’s easily accessible IP addresses. Using the IP addresses, they obtain

the issuance of subpoenas to the various internet service providers such as 

Comcast, AT&T, and others who have information relating to the IP address in 

question. The internet service providers (“ISP”) then supply the identity and 

1 When considering whether to grant a 12(b)(6) motion, the court primarily considers the

complaint’s allegations and exhibits attached thereto, but may also take into account items

appearing in the record of the case, orders, and “matters of public record.” Amini v. Oberlin

College, 259 F.3d 493, 502 (6th Cir. 2001) Copies of all media articles cited herein are attached 

to Defendants’ Request for Judicial Notice, submitted concurrently herewith.

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contact information associated with IP address to the plaintiff. Sometime later, the 

individual receives an all too common demand: pay a relatively small settlement or 

face a lawsuit and with it exposure to accusations of having downloaded 

pornographic material, and, of course, a potential fine of $150,000 per movie for 

violating a federal copyright statute. 

Plaintiff files the most copyright lawsuits and is regarded as one of the 

largest players in the copyright troll business. According to a May 14, 2014 article 

in The New Yorker, in a one year period ending in early 2014, Plaintiff had filed 

over 1300 copyright infringement lawsuits, “more of these cases than anyone else, 

accounting for a third of all U.S. copyright litigation during that time”. See article 

at Exhibit B. In all these lawsuits Plaintiff seeks the maximum statutory damages 

under the copyright statute as 17 U.S.C. § 504(2) per movie: $150,000. Id. Copies 

of the several of the countless media articles illustrating the practices of “copyright 

trolls,” as the have become known, are attached as Exhibit C. 

Judge Gary R. Brown, Federal Magistrate in the Eastern District of New 

York described2 the litigation practice of Plaintiff “as part of a nationwide blizzard 

of civil actions brought by purveyors of pornographic films alleging copyright 

2 From Exhibit D- the Magistrate’s Order & Report & Recommendation in In re Bittorrent Adult 

Film Copyright Infringement Cases Civil Action Nos.11-3995(DRH)(GRB); 12-1147(JS)(GRB); 

12-1150(LDW)(GRB); and 12-1154(ADS)(GRB). The four cases involved more than 80 Joe 

Doe defendants. As of the date of the order the same plaintiffs (including Malibu Media, LLC) 

had filed another nineteen cases in the East District for New York alone. 

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infringement by individuals utilizing a computer protocol known as BitTorrent (see

Exhibit D- Magistrate’s Order & Report & Recommendation in In re Bittorrent 

Adult Film Copyright Infringement Cases). The putative defendants are identified 

only by Internet Protocol (“IP”) addresses.” Though it has been recognized by 

various courts that an IP address alone is not sufficient to identify the infringer of a 

particular work, Plaintiff continues to engage a business model of extortion where 

putative defendants have no viable option other than payment to ensure a 

settlement. This strategy is no secret and this case is no different. 

As is discussed more fully below, Plaintiff’s complaint is defective and 

should have never been filed. Plaintiff’s counsel violated Fed. R. Civ. P. 11 (“Rule 

11”) by failing to conduct an objectively reasonable inquiry into the facts and law 

to make sure that complaint was well-founded. McGhee v. Sanilac County, 934

F.2d 89, 92 (6th Cir. 1991). Specifically, Plaintiff failed to inquire into whether it

was in fact Defendant Michael Braun that illegally downloaded and distributed its

movies, as it alleges in its complaint. This failing strikes at the heart of Rule 11, 

whose primary purpose is “to deter baseless filings in District Courts” Cooter &

Gell v. Hartmarx Corp., 496 U.S. 384, 413 (1990). Defendant has wrongfully and 

irresponsibly been subjected to the humiliating and expensive exercise of 

defending himself against allegations which are false and which were filed, 

subscribed to, and served in violation of Rule 11. Beyond the violation of Rule 11, 

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Plaintiff’s Amended Complaint is defective as plead. Defendant now files the 

present motion to dismiss for failure to state a claim under which relief can be 

granted for the reason that Plaintiff has failed to sufficiently plead the necessary 

infringing conduct required in order to sustain a claim for direct copyright 

infringement as a matter of law. 

II. ARGUMENT

A. Summary Of Plaintiff’s Claim For Infringement

Plaintiff’s original Complaint (Doc. #1) was filed against a John Doe 

“subscriber” identified only by an IP Address known as “24.11.171.186”. It alleged

a single count of “Direct Infringement” of Plaintiff’s original works by the owner 

of the IP Address in violation of the United States Copyright Act at 17 U.S.C. 

§101, et seq (“Copyright Act”). It claims to have discovered these violations by 

having a private investigator monitor online sharing of its movies via BitTorrent 

software. Through the private investigator Plaintiff learned that IP Address 

24.11.171.186 was involved in such sharing. After filing the original complaint, it 

requested permission from this Court to serve a subpoena on the Internet Service 

Provider (“ISP”) responsible for providing internet access to IP Address 

24.11.171.186 (Comcast Cable) for the limited purpose of determining the identity 

and contact information of the subscriber or subscribers named on the account 

associated with said address. Plaintiff admits in the first sentence of its Motion for 

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Leave to Serve a Third Party Subpoena (Doc #3, at p. 3) that it is “Defendant’s IP 

address [that] has been habitually used to infringe Plaintiff’s copyrighted works.” 

(Emphasis added). Plaintiff also claims in its motion that “the ISP can use the IP 

address to identify the Defendant”. (Doc #3, at p. 3).

After having determined the identity of the owner of IP Address 

24.11.171.186 Plaintiff filed its Amended Complaint3 (Doc. #6). The Amended 

Complaint is virtually identical to the original Complaint with the exception of the 

addition of Michael Braun as the named defendant. 

In the Amended Complaint, Plaintiff alleges that “the Defendant [Michael 

Braun) engaged in unauthorized “copying” and “distribution” of the “constituent 

elements” of Plaintiff’s movies, thereby committing direct copyright infringement. 

The basis for Plaintiff’s claim is simple: IP Address 24.11.171.186 has been 

associated with the illegal downloading and distribution of movies owned by 

Plaintiff. Since Michael Braun is the holder of the Comcast Cable account that 

provided the IP address, he directly infringed Plaintiff’s copyrighted movies in 

violation of the Copyright Act. Reduced to its simplest form, and ignoring all of 

the references to conspiracies and willful conduct, Plaintiff is making the leap that 

because Michael Braun pays the internet bill that is associated with IP Address 

3 Plaintiff does refer to the second complaint as an amendment, electing to again title it 

“Complaint-Action for Damages for Property Rights Infringement”. However, the second 

complaint was filed under the designation of “Amended Complaint” in the ECF system and the 

information in the complaint with respect to the identity of the Defendant was amended. 

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24.11.171.186, he must have engaged in the infringing activities that Plaintiff 

complains of. This theory has no evidentiary basis, and merits dismissal pursuant 

to Fed. R. Civ. P. 12. 

B. Applicable Standard And Judicial Notice

1. Judicial Notice

Defendant’s motion to dismiss is directed to the Amended Complaint (Doc.

#6). Defendant brings this motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) 

for dismissal for “failure to state a claim upon which relief can be granted.” Rule

12(b)(6). When considering whether to grant a Rule 12(b)(6) motion, the court

primarily considers the complaint’s allegations and exhibits attached thereto, but

may also take into account items appearing in the record of the case, orders, and

“matters of public record.” LaFace Records, LLC v. Does 1-5, 2008 U.S. Dist.

LEXIS 13638, 2008 WL 513508, *3 (W.D. Mich. Feb. 22, 2008) (citing Amini v.

Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001)). These items may be

considered without converting the motion into one for summary judgment under

Rule 56. See Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir.

2008) (citing Amini, 259 F.3d at 502); See Rodic v. Thistledown Racing Club,

Inc., 615 F.2d 736, 738 (6th Cir. 1980) (“Federal courts may take judicial notice of 

proceedings in other courts of record.” (internal quotation marks and citation 

omitted)); DeBenedictis v. Merrill Lynch & Co., Inc., 492 F.3d 209, 214 (3d Cir.

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2007) (taking judicial notice of USA Today and Time Magazine articles submitted 

by defendants). Defendant’s motion incorporates several media articles as well as 

opinions from sister Districts. Each is addressed in a Request for Judicial Notice, 

filed contemporaneously with this motion. 

2. 12(b)(6) Standard

“The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a

matter of law, the plaintiff is entitled to legal relief even if everything alleged in

the complaint is true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). When

deciding a motion under that Rule, the court must construe the complaint in the

light most favorable to the plaintiff, accept all factual allegations as true, and

determine whether the complaint contains “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,

(2007). Notably, however, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions,” and the

courts are not “bound to accept as true a legal conclusion couched as a factual

allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks 

and citations omitted). 

In ruling on a Rule 12(b)(6) motion, courts must evaluate whether a plaintiff 

has complied with Fed. R. Civ. P. 8(a) (“Rule 8(a)”). Zoxoang v Kerry, 710 F.3d 

995, 998-99 (9th Cir. 2013). In order to state a valid claim for relief under Rule 

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8(a), a complaint must contain a “short and plain statement of the claim showing 

that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 

(2009). Rule 8(a) does not require detailed factual allegations, but it does require 

more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and 

conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not 

do.’” Id., quoting Twombly, 550 U.S. at 555. “Nor does a complaint suffice if it 

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id., quoting

Twombly, 550 U.S. at 557. Accordingly, Rule 8 “does not unlock the doors of 

discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, supra, 

at 678-79. 

In this case, because Plaintiff makes allegations against Defendant without 

facts to support them, its Amended Complaint lacks the factual basis to support a 

claim against Defendant for direct copyright infringement. Therefore, the Court 

must dismiss the Complaint against Defendant. 

C. Plaintiff’s Complaint Does Not Comply With Rule (8)(a) Because

It Fails To Plead The Necessary Volitional Act Required For

Infringement To Have Occurred. 

1. Direct Infringement Under the Copyright Act

Plaintiff’s single count Amended Complaint (Doc #6) alleges “direct 

infringement” in violation of the Copyright Act at 17 U.S.C. §106 based on the 

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conclusory allegation that Defendant Michael Braun used BitTorrent software to

illegally download and distribute 52 of Plaintiff’s movies. A claim of copyright 

infringement under the Copyright Act “requires proof that (1) the plaintiff had a 

valid copyright in the work allegedly infringed and (2) the defendant infringed the 

plaintiff's copyright by violating one of the exclusive rights that 17 U.S.C. §

106 bestows upon the copyright holder” Island Software & Computer Serv. v.

Microsoft Corp., 413 F.3d 257, 260 (2nd Cir. 2005) (internal quotation omitted);

see also Patrick Collins, Inc. v. John Does 1-28, 12-13670, 2013 WL359759 (E.D. 

Mich. Jan. 29, 2013).

Regarding the second element, for direct copyright infringement to have

occurred “there must be actual infringing conduct with nexus sufficiently close and 

causal to illegal copying that one could conclude that alleged infringer trespassed 

on exclusive domain of copyright owner, and this nexus requires some aspect of 

volition or causation. CoStar Group, Inc. v LoopNet, Inc., 373 F3d 544, 549 (4th

Cir. 2004). (emphasis added). Further, the Copyright Act “requires conduct by a 

person who causes in some meaningful way an infringement.” Id. (emphasis in 

original). Lastly, “something more must be shown than mere ownership of a 

machine used by others to make illegal copies.” Id.

The Amended Complaint contains the following allegations of Defendant’s 

alleged “direct” copyright infringement (emphasis added).

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¶ 2 Defendant is a persistent online infringer of Plaintiff’s copyrights. 

Indeed, Defendant’s IP address as set forth on Exhibit A was used to 

illegally distribute each of the copyrighted movies set forth on Exhibit 

B.

¶ 5 Plaintiff used proven IP address geolocation technology which has 

consistently worked in similar cases to ensure that the Defendant's acts 

of copyright infringement occurred using an Internet Protocol 

address ("IP address") traced to a physical address located within 

this District, and therefore this Court has personal jurisdiction over 

the Defendant because (i) Defendant committed the tortious conduct 

alleged in this Complaint in this State...

¶ 17 Plaintiffs investigator, IPP International UG, established a direct 

TCP/JP connection with the Defendant's IP address as set forth on 

Exhibit A.

¶ 19 Defendant downloaded, copied, and distributed a complete copy of 

Plaintiff's movies without authorization as enumerated on Exhibit A.

¶ 22 IPP International UG connected, over a course of time, with 

Defendant's IP address for each hash value as listed on Exhibit A. 

The most recent TCP/IP connection between IPP and the Defendant's 

IP address for each file hash value listed on Exhibit A is included 

within the column labeled Hit Date UTC.

¶ 24 IPP's software also logged Defendant's IP address being used to 

distribute third party files through BitTorrent. This evidence indicates 

that Defendant engaged in BitTorrent transactions associated with 262 

files between 08/30/2012 and 05/29/2014. Collectively, this evidence 

is referred as the "Additional Evidence".

¶ 32 By using BitTorrent, Defendant copied and distributed the 

constituent elements of each of the original works covered by the 

Copyrights-in-Suit.

Plaintiff’s theory is that since Defendant is the account holder of the internet 

access associated with the IP Address that was allegedly used to illegally download 

and/or distribute the movies in question he violated the Copyright Act. Paragraph 

19 and 32, which are the only statements alleging that Defendant himself is the 

infringer, are exactly what the Supreme Court in Iqbal, supra, referred to as a 

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“legal conclusion couched as factual allegation,” which courts “are not bound to

accept as true” when addressing a Rule 12(b)(6) motion. Iqbal, supra at 678. The

Amended Complaint, taken as a whole, only permits the Court to conclude that

Plaintiff believes that IP Address 24.11.171.186 was associated with copyright 

infringement. From there Plaintiff apparently wants the Court to make the giant

leap of concluding that it was Defendant who actually downloaded and distributed 

Plaintiff’s movies. Plaintiff’s unfounded and conclusory “the defendant unlawfully 

harmed me accusation” notwithstanding, the Complaint only contains “naked 

assertions” − e.g. ¶ 2: “Defendant is a persistent online infringer of Plaintiff’s 

copyrights” or ¶ 19: “Defendant downloaded, copied, and distributed a complete 

copy of Plaintiff's movies without authorization”− that are “devoid of [the] further 

factual enhancement” necessary to survive a Rule 12(b)(6) motion. Iqbal, supra at 

p. 678-79.

In short, Plaintiff makes conclusory statements without the necessary factual 

enhancement. Id. Not only is such pleading indicative of non-compliance with 

Rule 11, it also falls well short of the Rule 8(a) pleading standard. As is the case 

here, where the facts of the Complaint “do not permit the court to infer more than 

the mere possibility of misconduct, the complaint has alleged--but it has not 

"show[n]"--"that the pleader is entitled to relief." See Iqbal, supra at 679 (citing 

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Rule 8(a)). For these reasons, Plaintiff’s Amended Complaint should be dismissed 

with prejudice. 

Several courts addressing similar suits throughout the country have noted 

that simply identifying the owner of the account associated with an IP address 

sheds very little light into who actually completed the download in question. Judge 

Robert S. Lasnik of the United District Court for the Western District of 

Washington granted the Defendant’s Rule 12(b)(6) motion in a case involving an 

almost identical scenario. In that case, entitled El-Man, LLC v. Eric Cariveau, et 

al. (Case No. 13-CV-00507-RSL), Elf-Man, LLC sued Defendant Eric Cariveau 

for allegedly stealing and distributing one of Plaintiff’s movies thorough use of a 

BitTorrent software program. In its complaint Plaintiff alleged “direct” copyright 

infringement, identical to the claim against Defendant Michael Braun. Judge 

Lasnik dismissed the claim for failure to state a claim explaining as follows4

:

While it is possible that the subscriber [Plaintiff] is the one who 

participated in the BitTorrent swarm, it is also possible that a family 

member, guest, or freeloader engaged in the infringing conduct.

The First Amended Complaint, read as a whole, suggests that 

plaintiff has no idea who downloaded “Elf-Man” using a 

particular IP address. Plaintiff has not alleged that a named 

defendant has the BitTorrent “client” application on her computer, 

that the download or distribution is in some way linked to the 

individual subscriber (as opposed to her account), that the defendant 

has acknowledged personal involvement in the download and 

distribution, or even circumstances which might increase the 

4 Copies of all unpublished cases cited herein are attached to Defendants’ Request for Judicial

Notice, submitted concurrently herewith.

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likelihood that the subscriber is the infringer (such as defendant’s 

living arrangements or network details). 

Rather than provide specific facts tying the named defendant to the 

infringing conduct, plaintiff merely alleges that her IP address “was 

observed infringing Plaintiff’s motion picture” and guesses how that 

might have come about. While it is possible that one or more of the 

named defendants was personally involved in the download, it is 

also possible that they simply failed to secure their connection 

against third-party interlopers. Plaintiff has failed to adequately 

allege a claim for direct copyright infringement.

(Exhibit E- Order on Motion to Dismiss). Similar concerns were raised by Judge

Barry Moskowitz in AF Holdings LLC v. Chris Rogers Case No. 12-cv-1519 

BTM(BLM) out of the District Court for the Southern District of California. In that 

case, the Plaintiff also alleged direct copyright infringement against Defendant for 

allegedly downloading, reproducing, and distributing copies of Plaintiff’s video 

through BitTorrent software. Plaintiff’s claim centered on Defendant being the 

account holder of the IP Address associated with the downloading of the video. 

Judge Moskowitz had the following concerns: “However, the Court is concerned 

about the lack of facts [in the complaint] establishing that Defendant was using that 

IP address at that particular time. Indeed, the [complaint] does not explain what

link, if any, there is between Defendant and the IP address. It is possible that 

Plaintiff sued Defendant because he is the subscriber to IP address 68.8.137.53.” 

and that “[J]ust because an IP address is registered to an individual does not mean 

that he or she is guilty of infringement when that IP address is used to commit 

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infringing activity.” (Exhibit F, Opinion and Order). Judge Moskowitz also agreed 

that “it is no more likely that the subscriber to an IP address carried out a particular 

computer function . . . than to say an individual who pays the telephone bill made a 

specific telephone call.” Id. Judge Moskowitz referenced the following passage 

from Judge Brown’s Report and Recommendation in In re Bittorrent Adult Film 

Copyright Infringement Cases (Exhibit D) which explains that increasing

popularity of wireless routers makes it even more doubtful that the “identity of the 

subscriber to an IP address correlates to the identity of the infringer who used the 

address”:

While a decade ago, home wireless networks were nearly nonexistent, 61% of U.S. homes now have wireless access. Several of 

the ISPs at issue in this case provide a complimentary wireless 

router as part of Internet service. As a result, a single IP address 

usually supports multiple computer devices—which unlike 

traditional telephones can be operated simultaneously by different 

individuals. See U.S. v. Latham, 2007 WL 4563459, at *4 (D.Nev. 

Dec.18, 2007). Different family members, or even visitors, could 

have performed the alleged downloads. 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 and 

download the plaintiff's film.

(Exhibit D) (Exhibit F). The consequences of Plaintiff’s litigation strategy 

are obvious: a complaint, such as the present, containing bare allegations and 

conclusory legal statements may be filed against an innocent subscriber who then 

is effectively coerced into an unjust settlement that he only accepts to avoid the 

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cost of defense and the embarrassment that attaches to an accusation of illegally 

downloading pornographic films. As Judge Moskowitz noted, courts have provided 

protections to defendants in this type of case “to ensure that that potentially 

innocent subscribers are not needlessly humiliated and coerced into unfair 

settlements” Exhibit F, citing Discount Video Center, Inc., v. Does 1-29, 285 

F.R.D. 161, 166 (D. Mass. Aug. 10, 2012) (“Moreover, the improper assertion in 

the Notice [attached to subpoenas] that subscribers are Defendants is significant in 

that it might well cause innocent subscribers . . . to accede to unreasonable 

settlement demands.”) (emphasis added) and Digital Sin, Inc. v. Does 1-176, 279 

F.R.D. 239, 242 (S.D.N.Y. 2012) (issuing a protective order with respect to 

discovery regarding subscriber information because the “risk of false positives”

gives rise to the potential that unjust settlements will be coerced from innocent 

defendants who want to avoid having their names publicly associated with films 

with suggestive titles).

Based on the foregoing, Defendant respectfully requests that this court 

dismiss Plaintiff’s Amended Complaint. 

D. Dismissal With Prejudice is Warranted

As discussed above, Plaintiff’s First Amended Complaint should be 

dismissed because it fails to state a claim on which relief may be granted. 

Furthermore, such dismissal should be with prejudice, because Plaintiff’s earlier 

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statements prevent it from now ethically alleging any set of facts that would cure 

its defective complaint, thereby making leave to amend futile.

In its earlier Motion for Leave to Serve a Third Party Subpoena (Doc. #3) 

Plaintiff represented to the Court that it “seeks leave to serve limited, immediate 

discovery on the John Doe Defendant’s Internet Service Provider, Comcast Cable 

(hereafter “ISP”) so that Plaintiff may learn Defendant’s true identity.” (Doc. #3 at 

p. 3). According to Plaintiff, Comcast Cable could use the IP Address to identify 

the Defendant. Plaintiff also represented that “Other than receiving the information 

from the Defendant’s ISP, there is no way to obtain Defendant’s true identity,”

thus a subpoena is required. (Doc. # 3) at 7.) Now, Plaintiff has obtained the 

requested information, has amended its complaint, and still cannot allege facts 

sufficient to state a claim for relief. There is no reason to believe that Plaintiff is 

sitting on facts that would state a claim for relief, yet failed to allege such facts. 

There is no reason to believe that Plaintiff has an evidentiary basis to allege the 

type of facts—e.g., Defendants’ specific acts of infringement—necessary to state a 

claim. Thus, there is no benefit to granting Plaintiff leave to amend, and Court 

should dismiss Plaintiff’s Amended Complaint with prejudice.

III. CONCLUSION AND REQUEST FOR RELIEF

As outlined above, to survive the instant motion, Plaintiff’s Amended 

Complaint must set forth sufficient factual allegations—in contrast to naked 

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assertions or legal conclusions—that bring the claim from the realm of mere 

possibility to plausibility. Setting forth allegations that are “merely consistent 

with” a valid claim for relief does not satisfy the Rule 8(a) standard. Iqbal, supra at 

678-79. Since Plaintiff has failed to meet this burden, it has failed to state a claim 

upon which relief may be granted. Therefore, this Honorable Court should grant 

Defendant’s Motion and Dismiss the Amended Complaint with prejudice. 

Respectfully submitted, 

HOOPER, HATHAWAY, PRICE,

 BEUCHE & WALLACE

Dated: January 27, 2015 BY: /s/Oscar A. Rodriguez

Bruce T. Wallace (P24148)

Oscar A. Rodriguez (P73413)

Attorneys for Defendant

126 South Main Street

Ann Arbor, MI 48104

(734) 662-4426

orod@hooperhathaway.com\

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CERTIFICATE OF SERVICE

I hereby certify that on January 27, 2015 I electronically filed the foregoing 

Motion to Dismiss with the Clerk of the Court using the ECF system which will 

send notification of such filing to the following:

Paul J. Nicoletti 

Nicoletti Law, PLC

33717 Woodward Avenue

Suite 433

Birmingham, MI 48009

pauljnicoletti@gmail.com

Respectfully submitted, 

HOOPER, HATHAWAY, PRICE,

 BEUCHE & WALLACE

Dated: January 27, 2015 BY: /s/Oscar A. Rodriguez

Bruce T. Wallace (P24148)

Oscar A. Rodriguez (P73413)

Attorneys for Defendant

126 South Main Street

Ann Arbor, MI 48104

(734) 662-4426

orod@hooperhathaway.com

19

2:14-cv-12409-GCS-MKM Doc # 16 Filed 01/27/15 Pg 21 of 21 Pg ID 112