United States District Court, W.D. Washington, Seattle
following Minute Order is made by direction of the Court, the
Honorable Thomas S. Zilly, United States District Judge:
Plaintiff's motions to effect service via mail, docket
no. 37 in C17-1074, docket no. 28 in C17-1075, docket no. 31
in C17-1211, and docket no. 30 in C17-1403, are DENIED
without prejudice. Plaintiff shall cease all efforts to
effect service in any of the pending cases until further
order of the Court.
every case now before the Court, plaintiff has filed a
corporate disclosure form indicating that it is owned by Lost
Dog Productions, LLC, which is owned by Voltage Productions,
LLC. See, e.g., Pla.'s Corp. Disclosure
(C17-988, docket no. 4). The Statement of Information
(“SOI”) filed on behalf of plaintiff with the
California Secretary of State lists Lost Dog Productions, LLC
as the manager or member of Venice PI, LLC. See
https://businesssearch.sos.ca.gov/. The SOI shows
the same address for both Venice PI, LLC and Lost Dog
Productions, LLC, namely 116 N. Robertson Blvd., Suite 200,
Los Angeles, CA 90048. A search of the California Secretary
of State's online database, however, reveals no
registered entity with the name “Lost Dog” or
“Lost Dog Productions.” Moreover, although
“Voltage Pictures, LLC” is registered
with the California Secretary of State, and has the same
address as Venice PI, LLC, the parent company named in
plaintiff's corporate disclosure form, “Voltage
Productions, LLC, ” cannot be found in the
California Secretary of State's online database and does
not appear to exist.
response to the Minute Order entered November 3, 2017
(see, e.g., C17-988, docket no. 27),
requiring plaintiff to provide an offer of proof, plaintiff
has filed a declaration by Benjamin Perino, Chief Executive
Officer of GuardaLey LTD, a German company. In such
declaration, Perino asserts that he created the surveillance
software at issue, which is licensed by GuardaLey to
MaverickEye UG, also a German company. Perino Decl. at
¶¶ 5 & 11 (see, e.g.,
C17-988, docket no. 29). Perino has been proffered as an
expert, but his qualifications consist of a technical high
school education and work experience unrelated to the
peer-to-peer file-sharing technology known as BitTorrent.
Id. at ¶¶ 6-10. According to Perino, the
infringement detection system at issue “cannot yield a
false positive.” Id. at ¶ 37. Perino does
not have the qualifications necessary to be considered an
expert in the field in question, and his opinion that the
surveillance program is incapable of error is both contrary
to common sense and inconsistent with plaintiff's
counsel's conduct in other matters in this
district. Plaintiff has not submitted an adequate
offer of proof.
support its previously granted motions for leave to issue
subpoenas seeking the identities of subscribers associated
with particular Internet protocol (“IP”)
addresses, plaintiff relied on substantively identical
declarations of Daniel Arheidt, a consultant for MaverickEye.
See, e.g., Arheidt Decl. (C17-988, docket
no. 6). Nowhere in Arheidt's declarations does he
indicate that either he or MaverickEye is licensed in
Washington to conduct private investigation work.
See RCW 18.165.150 (performing the functions of a
private investigator without a license is a gross
misdemeanor); see also RCW 18.165.010(12)(e)
(defining a “private investigator agency” to
include a person or entity that is in the business of
“detecting, discovering, or revealing . . . [e]vidence
to be used before a court”). Plaintiff's counsel
has apparently been aware since October 2016, when he
received a letter concerning LHF Productions, Inc. v.
Collins, C16-1017 RSM, that Arheidt might be committing
a crime by engaging in unlicensed surveillance of Washington
citizens,  but he did not disclose this fact to the
Court or offer any analysis for why such conduct is not
prohibited by RCW 18.165.150. Plaintiff's counsel's
lack of candor was a serious breach of his ethical duties,
particularly because he sought relief from the limitation on
discovery set forth in Federal Rule of Civil Procedure
26(d)(1) on an ex parte basis. See Wash. RPC 3.3.
Plaintiff is DIRECTED to show cause within twenty-eight (28)
days of the date of this Minute Order why its claims in each
captioned action should not be dismissed with prejudice (and
any funds it has received in settlement should not be
disgorged) for one or more of the following reasons: (a)
failure to comply with Local Civil Rule 7.1(a); (b) failure
to establish that plaintiff is properly formed as a limited
liability company under California law; and/or (c) failure to
state a cognizable claim.
Pursuant to Federal Rule of Civil Procedure 12(d), and in
light of the sworn response filed on December 19, 2017,
docket no. 44 in C17-990, defendant Jonathan Dutczak's
motion to dismiss, docket no. 22 in C17-990, will be treated
as a motion for summary judgment, and is RENOTED to February
16, 2018. On or before February 12, 2018, Dutczak shall
submit a declaration under oath,  not to exceed two (2) pages
in length, concerning whether he used BitTorrent technology
to view, download, or share any portion of the motion picture
“Once Upon a Time in Venice” on June 18, 2017, at
21:09:43 UTC (2:09:43 p.m. Seattle time) as alleged in the
Amended Complaint (C17-990, docket no. 16). If Dutczak was
not at home at the time in question, he may, but is not
required to, indicate his whereabouts and, if possible,
provide supporting documentation. Any supplemental response
by plaintiff shall not exceed five (5) pages in length and
shall be filed by the new noting date.
Clerk is DIRECTED to send a copy of this Minute Order to all
counsel of record and to all pro se defendants.
 In matters pursued by plaintiff's
counsel, David Lowe of Lowe Graham Jones PLLC, on behalf of
LHF Productions, Inc., CELL Film Holdings, LLC, Criminal
Productions, Inc., and ME2 Productions Inc., the claims
against defendants represented by J. Christopher Lynch of Lee
& Hayes, PLLC, have been dismissed, in each instance
within just days after Lowe received a letter from Lynch
indicating that the defendant had been wrongly accused of
infringement via the same detection system that is at issue
in this litigation. See
(cited in Def. Dutczak's Resp. at 6, C17-990, docket no.
44); see also C16-1017 RSM (docket nos. 32 &
52); C16-1180 RSL (docket no. 26); C16-1272 RAJ (docket no.
35); C16-1273 RSM (docket no. 31); C16-1351 RAJ (docket no.
29); C16-1588 RSM (docket no. 35); C16-1647 RAJ (docket no.
27); C16-1648 RSM (docket no. 24); C17-99 RSL (docket no.
12); cf. Clear Skies Nevada, LLC v. Hancock, 2017 WL
3642034 at *2 (N.D. Ill. Aug. 23, 2017) (“Defendant
compellingly suggests that Plaintiff moved for voluntary
dismissal so as to avoid ever having its claim judged on the
merits knowing it had a low likelihood of
 The Court has recently become aware
that Arheidt is the latest in a series of German declarants
(Darren M. Griffin, Daniel Macek, Daniel Susac, Tobias
Fieser, Michael Patzer) who might be aliases or even
fictitious. See Lynch Decls. (docket nos. 81 &
120), Elf-Man, LLC v. Lamberson, E.D. Wash. Case No.
2:13-cv-395-TOR; Clay Decl. (docket no. 65-1), Clear
Skies Nevada, LLC v. Anderson, N.D.Ill. Case No.
1:15-cv-6708; see also Reply, Leaverton v.
Killer Joe Nevada, L.L.C., 8th Cir. Case No. 14-3274,
2015 WL 636262. Plaintiff will not be permitted to rely on
Arheidt's declarations or underlying data without
explaining to the Court's satisfaction Arheidt's
relationship to the above-listed declarants and producing
proof beyond a reasonable doubt of Arheidt's
 Such declaration shall contain the
following attestation: “I declare under penalty of
perjury that the foregoing is true and correct. Executed on