IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, F~0ItiPA
Case No. 11-29024-CA-05
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BOY RACER, INC., a foreign corporation, ) (
Plaintiff, ) , ..
vs. ) f:\'
JOHN DOES 1-615, )
Order Quashing Subpoena, Vacating Order to Compel
- and Dismissing Complaint
This cause came before the Court on March 20, 2013, on Plaintiffs supplemental motion
to strike all pending motions objecting to subpoenas as moot. The Court reviewed the motion,
any and all responses filed thereto, and heard oral argument.
This is one of many lawsuits known as "copyright troll" suits. They commonly are filed
against hundreds of "John Doe" defendants and then used in order to attempt to obtain or ''troll''
for names of subscribers of an Internet Service Provider ("ISP") such as Comcast Cable
Holdings, LLC. The plaintiff then uses that subscriber to attempt to elicit a settlement from each
named defendant before the defendant is publicly identified.
The federal courts have shown extreme hostility to these suits, identifying them as fishing
expeditions that improperly join numerous defendants (thus avoiding court filing fees), as failing
to meet federal pleading standards, and as being used to extort settlements from defendants who
are neither subject to the courts' personal jurisdiction nor guilty of copyright infringement, but
who are fearful of the consequences of being publicly named as a defendant in a suit that seeks
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disclosure of the contents of their personal computers. i Typically, federal courts have dismissed
these mass lawsuits. 2
The Plaintiff in this lawsuit seeks to invoke Florida's ancient equitable doctrine of the
pure bill of discovery. Defendant John Doe 376 argued in response to the Complaint that this
equitable device is not available to allow the plaintiff to pursue its objectives, and requested both
dismissal of the Complaint and an order vacating this Court's order of October 13, 2011,
compelling Comcast Corporation to respond to a subpoena served by the Plaintiff. A number of
other John Doe Defendants filed motions to dismiss, quash, and/or compel. Instead of
In CP Productions, Inc. v. Does 1-300, No.1 :1O-cv-06255 (N.D. Ill. Feb. 24,2011),
U.S. District Judge Milton Shadur held "there is no justification for dragging into an Illinois
federal court, on a wholesale basis, a host of unnamed defendants over whom personal
jurisdiction clearly does not exist and -- more importantly -- as to whom CP's counsel could
readily have ascertained this fact." Slip Op. at 2.
2 See, e.g., Boy Racer, Inc. v. Does 1-60, No. C 11-01738 SI (N.D. Cal. Aug. 19,2011)
(order granting Doe Defendant's Motion to Quash and Dismissing Case Without Prejudice); 10
Group v. Does 1-19, 2010 U.S. Dist. LEXIS 133717, at *8-9 (N.D. Cal. Dec. 7,2010) (plaintiffs
allegations that the defendants conspired with each other to provide the infringing reproductions
of the works were "wholly conclusory and lacked facts to support an allegation that defendants
worked in concert to violate plaintiffs copyright"); Laface Records, LLC v. Does 1 - 38, 2008
U.S. Dist. LEXIS 14544 (E.D.N.C. Feb. 27, 2008) (ordering the severance of claims against
thirty-eight defendants where plaintiff alleged each defendant used the same ISP as well as the
same peer-to-peer network to commit the alleged copyright infringement, but there was no
assertion that the multiple defendants acted in concert); Interscope Records v. Does 1-25, 2004
U.S. Dist. LEXIS 27782 (M.D. Fla. Apr. 1, 2004) (magistrate recommended sua sponte
severance of multiple defendants in action where only connection between defendants was
allegation that they used same ISP and peer-to-peer network to conduct copyright infringement);
see also BMG Music v. Does, 2006 U.S. Dist. LEXIS 53237, No. 06-01579 (Patel, 1.) (N.D. Cal.
July 31, 2006) (finding improper joinder of four Doe defendants where the complaint alleged
that each defendant used the same ISP to engage in distinct acts of infringement on separate
dates at separate times, and there was no allegation that defendants acted in concert); Twentieth
Century Fox Film Corp. v. Does 1-12, No. C 04-04862 WHA (N.D. Cal. Nov. 16,2004) (Alsup,
J.) (severing twelve Doe defendants in a copyright infringement case where although defendants
used the same ISP to allegedly infringe motion picture recordings, there was no allegation that
the individuals acted in concert); cf In the Matter of DIRECTV,INC. 2004 U.S. Dist. LEXIS
24263, No. 02-5912 (Ware, J.) (N.D. Cal. July 26, 2004) (severing and dismissing hundreds of
defendants in a case alleging that defendants purchased and used modified access cards and other
pirate access devices to permit view of plaintiffs programming without authorization).
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responding to the substance of these motions, the Plaintiff voluntarily dismissed John Doe 376
and the other moving Defendants, and moved to strike those motions as moot. Plaintiff further
agreed that the Court should modify its October 13, 2011 order to relieve Comcast of its
obligation to respond to identify the dismissed Defendants. The Plaintiff appears to have taken
this tack to avoid a Court ruling that would undermine its effort to continue to misuse this
Court's jurisdiction to achieve Plaintiffs ends. However, as noted by John Does 376, this Court
does not have jurisdiction over the subject matter of the Complaint. Furthermore, it would be
inappropriate to allow Plaintiff to proceed in the manner it seeks.
This Court Lacks Subject-Matter Jurisdiction
It is a basic principle that "the limits of a court's jurisdiction are of primary concern."
Polk Co. v. Sojka, 702 So.2d 1243, 1245 (1997). Therefore, a Court is required "to address the
issue sua sponte when any doubt exists." Id Defendant John Doe 376 brought a substantial
jurisdictional defect to this Court's attention, and in light of the morass of pleadings and motions
(as is to be expected when 615 individual anonymous defendants are joined together), this Court
- on its own initiative - first will address the jurisdictional issue. After so doing, this Court finds
jurisdiction lacking, as explained below.
The Supreme Court often has recognized that the First Amendment protects anonymous
speech. 3 Other federal courts have held that Internet users sharing copyrighted works via the
BitTorrent application are themselves engaged in anonymous speech that warrants First
3 Watchtower Bible & Tract Soc. o/NY, Inc. v. Village o/Stratton, 536 US 150 (2002)
(ordinance requiring registration of solicitors violates the First Amendment); Buckley v.
American Constitutional Law Found, 525 U.S. 182, 200 (1999) (invalidating, on First
Amendment grounds, state statute requiring initiative petitioners to wear identification badges).
As the Court has held, "[a]nonymity is a shield from the tyranny of the majority." McIntyre v.
Ohio Elections Comm'n, 514 U.S. 334, 357 (1995) (invalidating state law that prohibited
dissemination of campaign literature that did not name issuer).
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Amendment protection. 4 In file sharing cases, courts have adopted a five-prong standard, first
stated in Sony Music Entertainment, Inc. Entertainment, Inc. v. Does 1-40, 326 F. Supp. 2d 556,
564-65 (S.D.N.Y. 2004), to determine whether a user's First Amendment right to remain
anonymous is outweighed by a litigant's need for identifying information. In order to mandate
disclosure of a user's identities, a plaintiff in a file-sharing case must set forth:
(1) a concrete showing of a prima facie claim of actionable harm, (2) specificity
of the discovery request, (3) the absence of alternative means to obtain the
subpoenaed information, (4) a central need for the subpoenaed information to
advance the claim, and (5) the party's expectation of privacy.
London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 164 (D. Mass. 2008) (citing Sony
Music, 326 F. Supp. 2d at 564-65); see also Call of the Wild Movie, 770 F. Supp. 2d at 351
(citing and adopting Sony Music five-prong test); First Time Videos, LLC v. Does 1-500, 276
F.R.D. 241, 248-49 (N.D. Ill. 2011) (same).
The first element of the Sony Music test requires Plaintiff to set forth "a concrete showing
of a prima facie claim of actionable harm." London-Sire Records, 542 F. Supp. 2d at 164-65.
This, in tum, has three parts:
First, the plaintiffs must assert an "actionable harm," a claim upon which relief
can be granted. Second the claim must be supported by prima facie evidence ....
Finally, both the claim and the prima facie evidence supporting it must be
concrete. That is, they must be reasonably grounded in allegations of a specific
act of infringement.
4 Call of the Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 350 (D.D.C.
2011) ("file sharers are engaged in an expressive activity, on some level, when they share files on
BitTorrent, and their First Amendment rights must be considered before the Court allows the
plaintiffs to override the putative defendants' anonymity by compelling the production of these
defendants' identifying information"); First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241,
248-49 (N.D. Ill. 2011); London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 164 (D. Mass.
2008); Sony Music Entertainment, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564-65 (S.D.N.Y.
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Id. at 164-65. The burden is on Plaintiff to establish each of these three parts in order to satisfy
the first Sony Music element and trump a Defendant's First Amendment right to anonymity. See
Call of the Wild Movie, 770 F. Supp. 2d at 351. But, the only actionable harm even alluded to in
the Complaint - copyright infringement - is one that this Court cannot exercise jurisdiction over.
A claim of copyright infringement has two elements: (1) a valid copyright; and (2) a
violation of one of the copyright holder's exclusive rights. London-Sire Records, 542 F. Supp.
2d at 176. However, this Court is barred from exercising any jurisdiction over copyright
infringement claims. 28 U.S.C. § 1338(a) ("No State court shall have jurisdiction over any claim
for relief arising under any Act of Congress relating to patents, plant variety protection, or
copyrights."). Therefore, this Court is without jurisdiction to rule on whether Plaintiff possesses,
or has stated prima facie evidence that it possesses, a valid copyright, or whether any of
Defendants' alleged conduct constitutes copyright infringement. See id. Therefore, this Court is
without jurisdiction to determine whether Plaintiff has stated a prima facie case of copyright
infringement sufficient to meet the first Sony Music requirement. Without such a ruling, Boy
Racer cannot invade the defendants' First Amendment right to remain anonymous. Accordingly,
Plaintiffs Complaint, containing a sole count for a bill of discovery, must be dismissed, the
subpoenas issued to ISPs quashed, and this Court's October 13, 2011 Order to Compel vacated.
A Bill of Discovery Cannot Issue for the Purpose Plaintiff Seeks
Independent of the jurisdictional defect, whether it is appropriate to allow the Plaintiff to
proceed in this fashion requires a brief examination of the merits of the arguments advanced by
John Doe 376. That Defendant pointed out that a pure bill of discovery is an action in equity
pre-dating the Florida Rules of Civil Procedure and the discovery provisions therein. See Daniel
Morman, The Complaint for a Pure Bill of Discovery A Living, Breathing Modern Day
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Dinosaur?, 78-MAR Fla. B.J. 50, 50-51 (2004). Courts allowed the pure bill of discovery so that
a plaintiff could obtain specific discovery relating to an identified substantive cause of action
from a party against whom the plaintiff intended to assert the cause of action. See id. With the
bill of discovery in hand, the plaintiff could enforce the discovery request, because the
defendant's failure to comply could be met with orders of contempt or default judgment. See id.
A bill of discovery was, and still is, simply a means to enforce compliance with specific
discovery requests issued to a defendant. See First Nat. Bank of Miami v. Dade-Broward Co.,
171 So. 510, 510 (Fla. 1936) (defining a bill of discovery as an action in equity that "lies to
obtain the disclosure of facts within the defendant's knowledge, or deeds or writings or other
things in his custody."); see also Complaint for Bill of Discovery filed in Precious Homes at
Twin Lakes Prop. Owner's Ass 'n., Inc. v. Venezia Lakes Homeowners Ass 'n., Inc., at pp., 3-4,
Case No.: 08-75939-CA-23 (Fla. Cir. Ct. Miami-Dade Cty. 2008) (including in the complaint a
request for documents and seeking relief that the "Court grant the discovery sought herein"). 5
The Plaintiff in the instant case made a general request simply "to conduct discovery"
rather than for specific information sought from the John Doe Defendants. A complaint for a bill
of discovery is not, as Plaintiff would have it, a complaint that opens the whole world to
discovery pursuant to the Florida Rules of Civil Procedure. Instead, a bill of discovery is
equitable relief that narrowly allows the Plaintiff to obtain specifically identified information
from the party against whom the Plaintiff asserts it intends to file a substantive claim. See
Carner v. Ratner, 207 So.2d 310, 311 (Fla. 3rd DCA 1968) (stating that the Florida Rules of
Civil Procedure do not "abrogate, or abolish, the traditional right of a court to entertain pure bills
5 The Precious Homes complaint provides an example of the type of information that
may be requested in a Bill of Discovery. At ~ 12, the plaintiff lists a series of contracts it wants
copies of and seeks relief in the form of a Court order granting that discovery.
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of discovery."). In a complaint seeking a bill of discovery, a plaintiff may seek either an order of
the Court demanding that a defendant disclose information within his or her knowledge (i.e. an
interrogatory sought through the equitable powers of the Court) or that a defendant produce
documents in its possession (i. e. a request for the production of documents sought through the
equitable powers of the Court). Publix Supermarkets, Inc. v. Frazier, 696 So.2d 1369, 1370 (Fla.
4th DCA 1997) ("A pure bill of discovery 'lies to obtain the disclosure of facts within the
defendant's knowledge, or deeds or writings or other things in his custody''') citing First Nat.
Bank of Miami v. Dade-Broward Co., 171 So. 510, 510-511 (Fla. 1937). This is the relief
available on a claim for a bill of discovery, an order that the defendant respond to an
interrogatory or a request for production. Plaintiffs request to "conduct discovery" from
Comcast and others as possible witnesses is not the form of relief the pure bill of discovery
allows and for good reason. The pure bill of discovery has never been a license to conduct
fishing expeditions from persons who are not parties and that might reveal claims.
"[A] Pure Bill of Discovery may not be used to obtain information, prior to the bringing
of an action at law, from third-party witnesses." Schwab v. Television 12 of Jacksonville, Inc.,
1993 WL 169181, at *3 (Fla. Cir. ct. 1993) (finding petitioner had no right to bring a claim for
bill of discovery). Instead, a bill of discovery "lies to obtain the disclosure of facts within the
defendant's knowledge, or deeds or writings or other things in his custody." Publix
Supermarkets, 696 So.2d at 1370 (emphasis added).
Long-established precedent also clearly shows that plaintiff cannot maintain a claim for
bill of discovery directly against the ISPs. See First Nat. Bank of Miami, 171 So. at 511 ("a
person who has no interest in the subject-matter of the suit, or is merely a witness, cannot be
made a party defendant to a bill either for relief or for purposes of discovery"); Poling v.
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Petroleum Carrier Corp., 194 So.2d 925,927 (Fla. 1st DCA 1967) (affinning dismissal of bill of
discovery sought against entities that could not be sued in the underlying action complained of
because "the general rule in equity is that a person who has no interest in the subject matter of
the suit, or is merely a witness, cannot be made a party defendant to a bill either for relief or for
purposes of discovery").
In light of these important principles drawn to the Court's attention by John Doe 376, it is
not appropriate to strike the Motion to Dismiss and to Quash filed by John Doe 376. The Court
recognizes, of course, that the Plaintiff is entitled under Florida Rule of Civil Procedure 1.420 to
voluntarily dismiss a defendant without order of the Court before a hearing on a motion for
summary judgment or before submission of a nonjury case to the court for decision. But here,
the Plaintiff already has obtained from the Court an order which in essence granted it most of the
relief it was seeking -- an order requiring Internet service providers to disclose the identities of
the persons assigned to certain IP addresses. Having obtained that relief, it is not appropriate for
this Court to ignore Defendants' request for relief from that decision merely because the Plaintiff
now contends he no longer wishes to maintain the action against the Defendants seeking that
relief. Put another way, this Court's prior order cannot be vacated by Plaintiff, simply because it
claims it changed its mind.
Being fully advised in the premises, it is hereby ORDERED AND ADJUDGED that:
1. Plaintiffs Supplemental Motion is DENIED.
2. All motions filed by Defendant John Does 233, 376, and 486, identified by
Plaintiff as the Defendants related to the IP addresses, 22.214.171.124, 126.96.36.199, and
188.8.131.52, respectively (the "Dismissed Defendants") are GRANTED.
3. Plaintiffs Complaint is DISMISSED with prejudice.
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4. This Court's Order Granting Plaintiffs Motion to Compel Non-Party Internet
Service Providers ("ISP's") To Disclose Indentifying Information Regarding Unknown John Doe
Defendants 1-615, dated October 13,2011, is VACATED in its entirety and the Internet Service
Providers (ISPs) are relieved of their obligation to respond to any subpoenas served by the
5. Counsel for Plaintiff shall provide a copy of this Order to all ISPs identified in
Exhibit A to the Complaint in this action, within 5 days of the date of this Order.
DONE AND ORDERED in Chambers, Miami-Dade County, Florida, this A- day of
_ _....:../UI__ _, 2012.
Circuit Court Judge
Copies furnished to:
Neil H. Rubin, Esq., Rubin & Bickman, PLLC, 1130 Washington
Ave., 4th Floor, Miami Beach, FL 33139
Steele Hansmeier, PLLC, 1111 Lincoln Road, Suite 400, Miami
Beach, FL 33139
Joseph Perea, Prenda Law, Inc., 1111 Lincoln Road, Suite 400,
Miami Beach, FL 33139
Joseph M. Dobkin, Esq., 9990 S.W. 77th Avenue, Penthouse
Three, Miami, Florida 33156
Diane B. Hernandez, Esq., Hernandez & Hicks, P.A., 5800 N.
Andrews Avenue, Fort Lauderdale, FL 33310
Paul Haralson, Esq., The Haralson Law Firm, P.A., 7001 Biscayne
Blvd., 2nd Floor, Miami, Florida 33138
Danny Simon, Esq., Lalchandi Simon P.L., 990 Biscayne Blvd.,
Office 503, Miami, FL 33132
Bradford A. Patrick, Esq., Law Offices of Bradford A. Patrick
P.A., 3001 North Rocky Point, Drive East, Suite 200, Tampa,
Justin S. Brenner, Esq., Hunton & Williams LLP, 1111 Brickell
Ave., Suite 2500, Miami, FL 33131
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