86146987-Bill-Kill-FL-11-29024-ca-05 by mmasnick


									                                                                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,          )                                         (

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                          Plaintiff,                        )                                        , ..
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           vs.                                              )                                                             f:\'

           JOHN DOES 1-615,                                 )
                          Defendant(s).                     )
                                 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,,, and

 , 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.

                                                                        Marc Schumacher
                                                                       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,
           Florida 33607
           Justin S. Brenner, Esq., Hunton & Williams LLP, 1111 Brickell
           Ave., Suite 2500, Miami, FL 33131


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