Opinion
C17-1731 TSZ
07-08-2019
STRIKE 3 HOLDINGS, LLC, Plaintiff, v. JOHN DOE (73.225.38.130), Defendant.
ORDER
THIS MATTER comes before the Court on plaintiff Strike 3 Holdings, LLC's motion, docket no. 71, for partial summary judgment as to defendant John Doe's abuse-of-process counterclaim. Having reviewed all papers filed in support of, and in opposition to, the motion, including defendant's supplemental response, docket no. 148, and plaintiff's reply thereto, docket no. 161, the Court enters the following order. Discussion
In his initial response, docket no. 79, to the motion for partial summary judgment, defendant moved to strike the Declaration of Tobias Fieser, docket no. 4-3, which had been submitted in connection with plaintiff's motion for leave to serve a third-party subpoena prior to a Rule 26(f) conference, as well as Paragraphs 5, 6, 9, and 14 of the Declaration of Emilie Kennedy, docket no. 73. Defendant did not repeat the motion to strike in his supplemental response, and plaintiff did not reply to the motion to strike. The Court reviewed these materials in connection with the motion to strike, but did not consider them in ruling on the motion for partial summary judgment.
This case is one of nine actions filed within a two-day period by plaintiff Strike 3 Holdings, LLC ("Strike 3"), each alleging that the subscriber associated with a particular Internet Protocol ("IP") address had infringed one or more of Strike 3's copyrighted adult motion pictures. See Compl. (docket no. 1); see also Am. Compl. (docket no. 43). The other eight matters were voluntarily dismissed by Strike 3. This lawsuit is the only one that remains pending, albeit not because of Strike 3's infringement claim, which was voluntarily dismissed on August 24, 2018, see Notice (docket no. 53), but as a result of defendant's counterclaims for a declaration of non-infringement and abuse of process. See Minute Order (docket no. 58); 2d Am. Counterclaims (docket no. 64). Strike 3 now moves for partial summary judgment as to defendant's abuse-of-process counterclaim.
In five cases, Strike 3 reached a settlement with the defendant. Strike 3 elected not to pursue another matter, and in the other two actions, Strike 3 was unable to effect service and unable to secure entry of default, respectively.
Strike 3 has indicated that it would consent to a declaratory judgment of non-infringement provided that "such a judgment does not entitle Defendant to any attorney's fees or costs" and "reserves all [of Strike 3's] rights to prosecute Defendant's son." See Pla.'s Mot. at 12 n.6 (docket no. 71). This issue is addressed in Section C.
A. Summary Judgment Standard
The Court may grant summary judgment if no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). To survive a motion for summary judgment, the adverse party must present "affirmative evidence," which "is to be believed" and from which all "justifiable inferences" are to be favorably drawn, see Anderson v . Liberty Lobby, Inc., 477 U.S. 242, 255, 257 (1986), showing that a rational trier of fact could find for such party on matters as to which such party will bear the burden of proof at trial. See Matsushita Elec . Indus. Co . v. Zenith Radio Corp., 475 U.S 574, 587 (1986); see also Celotex Corp . v. Catrett , 477 U.S. 317, 322 (1986).
B. Abuse of Process
In Washington, the elements of the tort known as "abuse of process" are as follows: (i) the existence of an ulterior purpose to accomplish an object not within the proper scope of the process, (ii) an act in the use of legal process not proper in the regular prosecution of the proceedings, and (iii) harm proximately caused by the abuse of process. Bellevue Farm Owners Ass'n v . Stevens , 198 Wn. App. 464, 477, 394 P.3d 1018 (2017). The crucial inquiry is whether the judicial system's process, after having been made available to secure the presence of the opposing party, has been misused to achieve another, inappropriate end. See Mark v . Williams , 45 Wn. App. 182, 192, 724 P.2d 428 (1986). The mere institution of a legal proceeding, even with a malicious motive, does not constitute an abuse of process. Vargas Ramirez v . United States , 93 F. Supp. 3d 1207, 1232 (W.D. Wash. 2015). Even the filing of a baseless or vexatious lawsuit is not misusing the process, and no liability attaches if nothing is done with the litigation "other than carrying it to its regular conclusion." Batten v . Abrams , 28 Wn. App. 737, 749, 626 P.2d 984 (1981).
To prove his abuse of process counterclaim, defendant must establish that Strike 3 engaged in an act, after using legal process, "to accomplish an end not within the purview of the suit." Vargas Ramirez , 93 F. Supp. 3d at 1232; see also Batten , 28 Wn. App. at 748 (the tort "goes to use of the process once it has been issued for an end for which it was not designed"). The acts about which defendant complains fall into two categories: (i) alleged misrepresentations made to obtain summons; and (ii) allegedly improper discovery efforts.
The first set of accusations do not an abuse-of-process claim make. Defendant contends that Strike 3 knew, but failed to disclose to the Court, that it had no way of linking the subscriber of the IP address at issue with the allegedly infringing behavior. Even if true, such assertion does not establish an "abuse of process" because it involves events that occurred before, and not after , the use of process. See Vargas Ramirez , 93 F. Supp. 3d at 1232; see also Batten , 28 Wn. App. at 748.
Moreover, given the unsettled nature of the law preceding Strike 3's voluntarily dismissal of its copyright infringement claim, defendant cannot show that Strike 3 engaged in behavior "not proper in the regular prosecution of the proceedings." See Bellevue Farm , 198 Wn. App. at 477. The alleged misrepresentations upon which defendant's abuse-of-process counterclaim is premised all occurred before the Ninth Circuit issued its landmark decision in Cobbler Nevada , LLC v. Gonzales , 901 F.3d 1142 (9th Cir. 2018). In Cobbler Nevada , the appellate court for the first time made clear that a copyright infringement claim based merely on a defendant's status as a subscriber of an IP address associated with infringing activity does not cross the threshold of "plausibility" that pleadings in federal court must satisfy. Id . at 1145, 1147 (citing Ashcroft v . Iqbal , 556 U.S. 662, 678 (2009), and Bell Atl . Corp. v. Twombly , 550 U.S. 544, 555 (2007)). Strike 3's conduct in this litigation cannot be judged by standards announced after it voluntarily dismissed its infringement claim.
Strike 3 commenced this action by filing its Complaint, docket no. 1, on November 16, 2017, and it was granted leave on December 4, 2017, to serve a subpoena duces tecum on the Internet service provider for purposes of identifying the IP subscriber and serving summons, see Order (docket no. 5). Strike 3 filed its Amended Complaint, docket no. 43, on July 3, 2018, and it voluntarily dismissed its infringement claim on August 24, 2018, see Notice (docket no. 53). The opinion in Cobbler Nevada was filed on August 27, 2018.
Defendant's second group of grievances relate to Strike 3's defense against the abuse-of-process counterclaim, rather than the prosecution of its now defunct copyright infringement claim, and likewise cannot form the basis of an abuse-of-process claim. Defendant contends that Strike 3 has targeted his son and misused the discovery process to explore whether defendant's son, other family members, or friends engaged in infringement of Strike 3's copyrighted materials. For support, defendant cites depositions that were taken in April 2019 and June 2019, Exs. 10 & 11 to McEntee Decl. (docket nos. 150-10 & 150-11), long after Strike 3 voluntarily dismissed its copyright infringement claim, but while Strike 3 faced potential liability on defendant's abuse-of-process counterclaim. Strike 3 was entitled to pursue a theory of defense that another member of defendant's household or someone with access to defendant's IP address had infringed one or more of Strike 3's motion pictures via the BitTorrent network, which would undermine defendant's allegation that Strike 3's copyright infringement claim was frivolous and asserted for purely extortionist or other improper purposes. Defendant simply has not offered the requisite "affirmative evidence," see Anderson , 477 U.S. at 257, of anything done by Strike 3 in connection with this action "other than carrying it to its regular conclusion." See Batten , 28 Wn. App. at 749.
C. Non-Infringement
As acknowledged by Strike 3, defendant is entitled to a declaratory judgment that he has not himself infringed any of Strike 3's copyrighted works. Defendant, however, has not sought summary judgment, and the Court is not inclined to grant such relief sua sponte in light of the related issue of attorney's fees and costs. Counsel are DIRECTED to meet and confer and, if possible, to file a form of proposed judgment within twenty-one (21) days of the date of this Order. With respect to attorney's fees and costs, the parties shall attempt to reach agreement concerning whether and, if so, how much defendant should receive, bearing in mind that, under the Copyright Act, attorney's fees are discretionary, and the Court may decline to award them. See Killer Joe Nevada , LLC v. Does 1-20 , 807 F.3d 908, 911 (8th Cir. 2015); Palladium Music , Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1200-01 (10th Cir. 2005); see also Fogerty v . Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994) (setting forth the following nonexclusive factors: frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case), and the need in particular circumstances to advance considerations of compensation and deterrence); Cobbler Nevada , 901 F.3d at 1149-50 (affirming the fee determination). If the parties cannot resolve the issue of attorney's fees and costs, defendant shall file any appropriate motion within twenty-one (21) days of the date of this Order. Conclusion
For the foregoing reasons, the Court ORDERS:
(1) Strike 3's motion for partial summary judgment, docket no. 71, is GRANTED, and defendant's counterclaim for abuse of process is DISMISSED with prejudice;
(2) Defendant's counterclaim for a declaration of non-infringement remains pending, subject to the requirement that counsel meet and confer and that, within twenty-one (21) days of the date of this Order, either (a) the parties shall, if possible, file a proposed consent judgment, or (b) defendant shall file any appropriate motion;
(3) The related motions to seal, docket nos. 146 and 157, are GRANTED, and unredacted versions of (i) defendant's supplemental response, docket no. 148, (ii) Exhibits 5 and 12 to the Declaration of Adrienne McEntee, docket nos. 148-1 and 148-2, (iii) Strike 3's reply, docket no. 161, and (iv) the Declaration of Lincoln Bandlow, docket no. 162, shall remain under seal;
(4) The trial date of September 30, 2019, and all related remaining deadlines are STRICKEN;
(5) Counsel shall meet and confer and file a Joint Status Report within twenty-one (21) days of the date of this Order concerning whether the pending discovery motions and the proposed stipulated protective order submitted on July 3, 2019, docket no. 163, may be STRICKEN as moot; the pending discovery motions, docket nos. 125, 126, 136, 138, 139, 141, and 143, are RENOTED to August 2, 2019;
(6) In light of the Court's ruling, the telephonic request to refer this matter to the Honorable J. Richard Creatura, United States Magistrate Judge, for purposes of a settlement conference is DENIED; and
(7) The Clerk is directed to send a copy of this Order to all counsel of record and to Magistrate Judge Creatura.
IT IS SO ORDERED.
Dated this 8th day of July, 2019.
/s/_________
Thomas S. Zilly
United States District Judge