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,
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 22.214.171.124. 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.
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)