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Gerald-Esquire
Gerald-Esquire, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 2865
Experience:  30 years of experience.
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I have been targeted in a copyright troll lawsuit

Customer Question

I have been targeted in a copyright troll lawsuit for allegedly downloading a film. The only evidence that the Plaintiff has to allege that I downloaded the film is that it was accessed with a device utilizing the IP address at my residence. I have three other roommates, who, assuming that it was not a guest or another person with access to the WiFi, could have accessed the film. I am not a lawyer, however, using precedents online, I've written the following motion to dismiss the case, based on the fact that they do not have sufficient evidence to file a claim. I am hoping that a lawyer can look at the Motion to Dismiss and let me know if it is written well, and if there is anything that could be improved.
Civil Action No. 6:15-cv-00909-ST
COBBLER NEVADA, LLC,
Plaintiff
v.
TIMOTHY HELLMAN,
Defendant
DEFENDANT'S MOTION TO DISMISS
Defendant TIMOTHY HELLMAN respectfully ***** ***** court to dismiss the Plaintiff's complaint for failure to state a claim under which relief can be granted.
INTRODUCTION AND PARTIES
The present lawsuit is a claim of copyright infringement by COBBLER NEVADA LLC. It is alleged, by the plaintiff, that sometime in the spring of 2015, a device at the defendant’s IP address was used to access a film ('THE COBBLER') owned by the plaintiff, using the Bit Torrent protocol. Plaintiff alleges that the defendant infringed works owned by the plaintiff. Plaintiff filed the original complaint in this matter against a John Doe at internet protocol (“IP”) address 98.232.194.240. After the defendant was questioned, at a deposition about the activity, the plaintiff amended the original complaint to reflect the subscriber, of the named IP address, TIMOTHY HELLMAN. Defendant denies all allegations against him and files the present motion to dismiss for failure to state a claim under which relief can be granted.
ARGUMENT
The plaintiff’s complaint should be dismissed for failure to state a claim under which relief can be granted regarding defendant TIMOTHY HELLMAN pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
I. PLAINTIFF FAILS TO STATE A CLAIM UNDER WHICH RELIEF CAN BE GRANTED
Plaintiff fails to state a claim under which relief can be granted against defendant TIMOTHY HELLMAN in its First Amended Complaint (“FAC”). Plaintiff’s FAC lacks any evidence that the defendant was the person, in the 4 roommate occupied home, that downloaded (and uploaded) the material owned by the plaintiff, besides the fact that he leased the IP address used (in which all roommates pay an equal share of the bill). Plaintiff fails to plead the necessary requirements in order to sustain a claim for copyright infringement as a matter of law. For these reasons, this court should dismiss the complaint against TIMOTHY HELLMAN.
A. Standard Of Review
The legal sufficiency of a complaint is a question of law. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). At its most basic level, a complaint is legally sufficient if it contains “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Accordingly, “[t]he court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (internal quotation omitted).
Fed. R. Civ. P. 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, 129 S.Ct. 1937, 1949 (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 554. “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, 129 S.Ct. at 1951. “[W]here the well-pleaded facts 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.” Id., citing Fed. R. Civ. P. 8(a)(2).
Here, because Plaintiffs make allegations without facts to support them, their first amended complaint lacks the factual basis to support a claim against defendant for copyright infringement. Accordingly, the court must dismiss the present complaint against defendant.
(I can include the rest in a reply, due to the word limit)
Submitted: 1 year ago.
Category: Intellectual Property Law
Customer: replied 1 year ago.
The rest of the motion:B. Plaintiff Failed to Plead a Necessary Volitional Act in its Amended ComplaintIn its First Amended Complaint, plaintiff fails to plead sufficient volitional acts by defendant that he committed the acts of infringement alleged in the FAC.For claims of copyright infringement, courts have read in a volitional requirement, finding that a person has to commit an act before a finding of liability can be imposed. CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 549 (4th Cir. 2004). In order to establish a prima facie claim of direct infringement, plaintiff must sufficiently allege facts demonstrating that defendant engaged in “volitional conduct.” Perfect 10, Inc. v. Giganews, Inc., no. cv 11-07098, 2013 WL(###) ###-#### ***** *6-9 (C.D. Cal. Mar. 8, 2013) (analyzing volitional conduct requirement); Fox Broad. Co. Inc. v. Dish Network, 905 F. Supp. 2d 1088, 1102 (C.D. Cal. 2012), aff’d 723 F.3d 1067 (9th Cir. 2013).Here, plaintiff failed to allege the necessary volitional conduct to establish that defendant actively engaged in or directly caused the infringement claimed by plaintiff allegedly through defendant’s internet connection. Associating the defendant with the claim at this point is similar to suing the subscriber of a telephone line where an allegedly illegal phone call took place without having evidence of who is responsible for the unlawful act. At best, ***** ***** demonstrated that the internet protocol (“IP”) address used at defendant’s home is allegedly used for the infringing activity claimed herein. In the FAC, plaintiff does not properly associate defendant’s activities to the activity reported from the IP address claimed by plaintiff’s investigator, instead making unsupported conjecture.Because plaintiff failed to plead the element of volitional conduct by defendant, the court should dismiss the present complaint against defendant.C. Plaintiff fails to state a claim under which relief can be grantedFor the foregoing reasons, Plaintiff’s first amended complaint fails to state a claim under which relief can be granted against Defendant TIMOTHY HELLMAN and the court should dismiss the plaintiff’s complaint against him.CONCLUSIONFor the foregoing reasons, this court should dismiss plaintiff’s complaint for failure to state a claim under which relief can be granted against Defendant TIMOTHY HELLMANDATED: October 2nd, 2015
Customer: replied 1 year ago.
Because the formatting was removed, I'm attaching a PDF of the motion now.
Customer: replied 1 year ago.
I've attached the full formatted Motion to Dismiss as a text file. I look forward to your response.
Expert:  Gerald-Esquire replied 1 year ago.

Hello,

Thank you for using Just Answer. I want to provide you the best service I can. Please feel free to ask any follow up questions you have.

I am an attorney with 30 years of experience; I hope to provide you information that will help you in resolving your question.

You have done a very fine job in putting together your Motion. Your formatting (as it appears on my WP) appears to be off.

Generally, the case number ***** ***** the right hand side of the page across from the part names. The headings are placed in the middle of the page. Something like:

"***** *****,

Plaintiff,

v. Case Number *****

***** *****,

Defendant.

Motion to Dismiss"

(If this does not appear properly let me know and maybe we can work out a minimal pay additional services offer so that I can email you directly. Only If You Want.)

These troll cases are annoying, and in some ways they are a bit of a scam. Unless they can show multiple infringements tied specifically to you they can not be successful in the litigation. Indeed past trolls have acknowledge in court that they will drop the case if there are multiple persons who can access the suspect IP address.

You can expect that the plaintiff's counsel will contact you with a "settlement" offer. Beware of these offers that they are not setting you up for an admission of piracy.

These links may be helpful to you as well:

http://fightcopyrighttrolls.com

I want you to be comfortable and satisfied with my attempt to assist you. Please, if you have ANY follow up questions, feel free to ask. Please note that I am generally unavailable Friday evening through Sunday.

I hope the information I have provided is useful to you and that I have earned a positive rating from you. It costs you nothing extra, and is the only way I get credit for my attempt to assist you.

If you are dissatisfied with my response PLEASE let me know before giving me a negative review so that I may try to be of better assistance. Or if you prefer, let me know and I can “Opt Out” and your question can be re-posted without additional cost to you. I will be fair to you and only ask the same from you.

Good luck,

Please note: Information given is not legal advice. Only your local attorney can give legal advice. I can't establish or accept an attorney-client relationship with you. All posts are available for public viewing.

Expert:  Gerald-Esquire replied 1 year ago.

I see the formatting didn't take. Sorry. let me see if I can attach something for you here. give me a minute. Thanks.

Expert:  Gerald-Esquire replied 1 year ago.

I have made some minor edits to the formatting of your document and have reattached it.

Good luck.

Kind regards,

Gerald

Customer: replied 1 year ago.
Hello,Thank you for your response, I appreciate the advice. However, the file that you uploaded is unable to be opened, I was wondering if you could re-post it? Thanks.
Expert:  Gerald-Esquire replied 1 year ago.

Let me try. I will also send you a minimum charge additional services offer. Use it only if you can get this to open. I do not want you to spend money unnecessarily, and my edits were minor formatting edits only.

Mostly you need to move the case number ***** from the Name of the parties, even and across form the v.

Place the headings in the middle of the document.

Add a signature block at the end of the document:

"Respectfully submitted"

That should do it.

Good luck.

Kind regards,

Gerald

Expert:  Gerald-Esquire replied 1 year ago.

It doesn't want to load properly. I'm real sorry.

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