MEMORANDUM - MOTION TO STRIKE Page 1 of 3

Carl D. Crowell, OSB No. 982049

email: crowell@kite.com

Jonathan van Heel, OSB No. 095349

email: jvh@kite.com

CROWELL LAW

P.O. Box 923

Salem, OR 97308

(503) 581-1240

Of attorneys for plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

VOLTAGE PICTURES, LLC, and

MAXCON PRODUCTIONS, INC.,

Plaintiffs,

v.

DOE, a/k/a IP 76.115.46.230

Defendant.

 Case No.: 3:13-cv-00836-AA

MEMORANDUM IN SUPPORT OF 

PLAINTIFFS’ MOTION TO STRIKE 

PLEADINGS OF ATTORNEY ROBERT 

SWIDER ON BEHALF OF DEFENDANT

It is axiomatic that an attorney needs a client to appear. In the present case it has been 

revealed that filings in this case on behalf of “Doe Defendant” are in fact by a counsel that 

represents only third party subscriber Kevin Balmer. Decl. Counsel ¶ 5, 6, (“... I represent 

Kevin Balmer. At the present time we have not been engaged by anyone else in connection with 

these claims.” 

As per the initial Complaint, the defendant is an infringer that personally infringed 

plaintiffs’ copyrights. The subscriber is identified as a distinct party that may or may not also be 

the defendant. ¶ ¶ 14, 46. It has been maintained that Kevin Balmer could not possibly be the 

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MEMORANDUM - MOTION TO STRIKE Page 2 of 3

defendant. Decl. Counsel ¶ ¶ 6, 7. In plaintiffs’ First Amended Complaint (Doc. 14) this 

distinction is elaborated on and further clarified. 

18. In response to a subpoena, Comcast has identified the party assigned IP 

address 76.115.46.230 as a Kevin Balmer, of Portland, Oregon.

19. Kevin Balmer denies infringing, and through counsel claims to have been out 

of the country and to have had, at least at the time of infringement, at least one 

roommate, presumably who had access to the infringing IP address.

20. To date Kevin Balmer has refused to identify any roommate.

First Amended Complaint, Doc. 14, ¶ ¶ 18-20.

This distinction is not lost on appearing counsel, as counsel’s declaration with this court 

states: “My firm represents Doe #270 a/k/a IP 76.115.46.230. The subscriber of that IP address 

was identified by Comcast to counsel for Plaintiff as Kevin Balmer pursuant to a subpoena 

issued by Plaintiff ....” Doc. 13-2. The “Doe” and the “subscriber” are clearly presented as 

distinct parties and not as one and the same.

Further, the Reply brief filed (Doc. 16) maintaining the claim the defendant is 

represented by counsel was filed after conferral on this issue and after plaintiff’s First Amended 

Complaint.

It is acknowledged that Kevin Balmer, the subscriber identified as providing the Doe 

Defendant access to the internet, may have standing to appear with a proper showing. But this is 

not the case being presented or argued in the filings of record. 

As such the filings of record are properly struck pursuant to FRCP 12(f) and FRCP 11. 

In the alternative, should counsel actually now represent the defendant, the identity of the 

defendant should be revealed. Plaintiff has no objection to the identity of the defendant being 

submitted under seal and maintained as confidential. 

///

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MEMORANDUM - MOTION TO STRIKE Page 3 of 3

DATED: November 7, 2013.

/s/ Carl D. Crowell

Carl D. Crowell, OSB No. 982049

email: crowell@kite.com

Crowell Law

P.O. Box 923

Case 3:13-cv-00836-AA Document 19 Filed 11/07/13 Page 3 of 3 Page ID#: 115