IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

SURVIVOR PRODUCTIONS, LLC, 

Plaintiff, 

v. 

ABBOTT DAIMLER, 

Defendant. 

Carl D. Crowell 

Drew P. Taylor 

Crowell Law 

943 Liberty Street SE 

Salem, OR 97308 

Attorneys for plaintiff 

Abbott Daimler 

2870 SE Kelly Street 

Portland, OR 97202 

Pro Se Defendant 

AIKEN; Judge: 

Case No. 3:15-cv-01482-AA 

ORDER 

In this copyright infringement action, plaintiff Survivor Productions, LLC, alleges defendant 

Abbott Daimler used peer-to-peer file-sharing software to illegally download plaintiffs copyrighted 

motion picture, Survivor. Defendant, who is umepresented, submitted a letter to the Court, which 

the Court constrnes as a motion to dismiss. 

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Case 3:15-cv-01482-AA Document 32 Filed 05/25/16 Page 1 of 3
In the letter, defendant alleges that an unknown third party accessed his wireless internet 

connection in order to download plaintiffs motion picture. Whether these allegations are true is a 

question of fact. Questions of fact are usually decided at trial. Sometimes they can be decided after 

discove1y is complete, in response to a motion for summary judgment. But when deciding whether 

to dismiss a case before discove1y, a court cannot make any ruling on questions of fact. 1 This means 

I cannot, at this stage, consider or weigh any evidence or make a detennination that any patty or 

witness is telling the truth. If this were not the rule, a defendant in any case - even a criminal case 

- could get the claims or charges dismissed simply by telling the court "I didn't do it." 

I also cannot dismiss the case based on lack of evidence at this stage. The discovery process 

exists so that plaintiffs and defendants can gather the evidence they need to prove or defend against 

a claim. Defendant is required to respond to plaintiff's discovery requests. There are, however, 

limits on discove1y. Those limits are outlined in Federal Rule of Civil Procedure 26(b ). If defendant 

thinks a discove1yrequest is unfair or unduly burdensome, he may raise that objection with plaintiff. 2 

If the patties at·e unable to work out an agreement, defendant may ask the Court to rule on the 

discove1y dispute. 

It is not clear from the letter whether a copy was sent to plaintiffs counsel. Any document 

sent to the judge or court without including opposing counsel is an "ex pmte communication." Ex 

patte communications generally are not permitted. In the future, if defendant files any documents 

or otherwise communicates with the comt (for example, by sending a letter or an email), he must 

send a copy to opposing counsel. 

If defendant has questions about court procedures, he may contact my courtroom deputy, 

Rebecca Henshaw, at rebecca henshaw@ord.uscomts.gov. In addition, the District of Oregon has 

1 See Cook, Perkiss & Liehe, Inc. v. Northern Cal. Collection Serv., Inc., 911 F.2d 242, 

245 (9th Cir. 1990) ("It is well-established that questions of fact cannot be resolved or 

determined on a motion to dismiss for failure to state a claim upon which relief can be granted.") 

2 See Fed. R. Civ. P. 26(b )(1) & (b )(2)(C)(i-iii) (discovery may be limited if it is 

"umeasonably cumulative or duplicative" or if "the burden or expense of the proposed discove1y 

outweighs its likely benefit"). 

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Case 3:15-cv-01482-AA Document 32 Filed 05/25/16 Page 2 of 3
a Pro Bono Program. Attorneys in this program volunteer to assist umepresented litigants free of 

charge. If defendant sends a letter to the cou1t requesting appointment of pro bono counsel (titled 

"Motion for Appointment of Pro Bono Counsel"), we will submit a request to the Pro Bono Program 

to see if there is an attorney willing to assist him. 

I emphasize that, at this stage, the Court takes no position on the truth or falsity of any of the 

allegations in the complaint or defendant's letter. This Order simply concludes that defendant has 

not shown any basis for dismissing the case prior to discovery. Additional information in this Order · 

is intended to explain comt procedures to a pro se defendant in order to promote efficient resolution 

of this litigation. 

Defendant's motion to dismiss (doc. 29) is DENIED. 

IT IS SO ORDERED. 

Dated this :L)~day of May 2016. 

Ann Aiken 

United States District Judge 

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