United States District Court

Northern District of Indiana

Hammond Division Case No. 2:13-cv-00099-rlm-jem 

Page 1 of 3

Malibu Media, llc

Plaintiff

– v –

John Doe subscriber assigned ip address

71.194.56.83

Defendant

Motion to Strike 

 

Issue

Rule 12(f) gives courts the power to strike scandalous material from pleadings. 

Malibu Media attached an exhibit to its complaint containing the names of several 

explicitly titled “adult” movies. It doesn’t claim that John Doe violated its purported copyright to these movies, but only attached the exhibit for “evidentiary” 

purposes despite having been previously warned that this was “nonsensical” and 

potentially a Rule 11 violation. Should the material be stricken from Malibu’s 

complaint? 

Argument

This is one of many copyright-infringement actions Malibu Media has filed in 

district courts across the country.1

Its complaints are seemingly “identical in their 

claims and formatting.” 2

In paragraph 23 of its form complaint, Malibu Media says that it has an investigator that has performed “enhanced surveillance” of files that the defendants are 

 1 See, e.g., Malibu Media, llc v. John Does 1–29, United States District Court for 

the Southern District of Indiana, Indianapolis Division, 1:12-cv-845-twp-mjd, 

Minute entry for September 7, 2012 Pretrial Conference, (de 17).

2 Malibu Media llc v. John Doe, Case: 3:13-cv-00205-slc, United States 

District Court for the Western District of Wisconsin, Order of May 28, 2013,

(de7).

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Case No. 2:13-cv-00099-rlm-jem 

Motion to Strike | Page 2 of 3

allegedly distributing. Those files are referred to in an exhibit consistently labeled 

“Exhibit c” to its complaints. Paragraph 23 and the Exhibit c that Malibu 

Media has filed in this case are consistent with the pattern it has used in other 

filings.3

But Malibu Media concedes that it is not suing the defendants—including John 

Doe in this case—for violating its purported copyrights to the material identified in 

Exhibit c. Instead, it says that the exhibit is attached for “evidentiary purposes 

only.”

As the United States District Court for the Western District of Wisconsin noted 

in a recent order,4 these allegations are “nonsensical.” Complaints are pleadings 

and have no evidentiary purpose. Attaching a document for “evidentiary purposes” 

to a pleading that has no evidentiary purpose is improper.5 Moreover, as the 

Wisconsin district court noted, the sole purpose behind attaching Exhibit c

appears to be to pressure defendants to settle claims before the defendant gets

publicly linked to “adult” movies.

Malibu has known from the time the Wisconsin district court issued its order 

that its strategy was improper, but it continued to pursue that strategy in this case 

in complete disregard for the Wisconsin court’s order. 

Argument

John Doe respectfully requests that the court strike paragraph 23 and Exhibit c

from the plaintiff’s complaint under Fed.R.Civ.P. 12(f), and that it grant Doe all 

other just and proper relief in the premises. 

 3 Id.

4 Id.

5 Id.

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Case No. 2:13-cv-00099-rlm-jem 

Motion to Strike | Page 3 of 3

Date: August 16, 2013 /s/ J. Thomas Vetne

J. Thomas Vetne | 19606-64

Jones Obenchain, llp 600 KeyBank Building

202 S. Michigan St.

Post Office Box 4577

South Bend, IN 46634 -4577

574.233.1194 | 574.233.8957 fax

jtv@jonesobenchain.com

Defendant’s Attorney

Certificate of Service

On August 16, 2013, I electronically filed this motion with the clerk using the

cm/ecf system which sent notification Paul J. Nicoletti, plaintiff’s attorney.

/s/ J. Thomas Vetne

J. Thomas Vetne | 19606-64

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