United States District Court, W.D. Washington
ORDER GRANTING MOTION TO DISMISS
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Jose Sosa's
unopposed Motion to Dismiss. Dkt. #18. For the reasons
discussed herein, Mr. Sosa's motion is GRANTED.
LHF Producutions, Inc. (“LHF”) filed an Amended
Complaint identifying Mr. Sosa as one of several Doe
Defendants on November 11, 2016. Dkt. #10 ¶ 19.
According to LHF, Mr. Sosa, along with thirteen other named
defendants, unlawfully infringed, in violation of 17 U.S.C.
§§ 101 et seq., its exclusive copyright to
the motion picture London Has Fallen. Id.
¶ 10. More specifically, LHF contends that Mr. Sosa
copied and distributed its film over the Internet through a
peer-to-peer network using the BitTorrent protocol.
Id. ¶¶ 1, 17-30.
Sosa was named in the Amended Complaint because, given the
unique identifier associated with a particular digital copy
of London Has Fallen, along with the timeframe when
the internet protocol (“IP”) address associated
with Mr. Sosa accessed that unique identifier, LHF alleges
Mr. Sosa was part of the same “swarm” of users
that reproduced, distributed, displayed, and/or performed its
copyrighted work. Id. ¶¶ 10, 30-36, 46.
LHF seeks injunctive relief, statutory damages,
attorneys' fees and costs, and any further relief deemed
proper by the Court. Id. at 15.
Sosa disputes LHF's allegations, and now moves to dismiss
the action against him. See Dkt. #18. In support of
his motion, Mr. Sosa argues that “[a]n IP address is
not a reliable or legitimate form of identification of [a]
person.” Id. at 1. Mr. Sosa also contends that
LHF has not presented any proof that Mr. Sosa either owned or
used the IP address LHF now attributes to him, and that LHF
“is without a verified infringer.” Id.
Additionally, Mr. Sosa explains that he has complied with
LHF's request for voluntary cooperation by reviewing the
computers in his home, speaking with his children, and by
changing his computer and internet passwords. Id. In
essence, Mr. Sosa argues that LHF fails to state a
“plausible” ground for relief.
LHF did not respond to Mr. Sosa's motion. Pursuant to
Local Civil Rule 7(b)(2), the Court may construe a
party's failure to file an opposition to a motion
“as an admission that the motion has merit.”
Consequently, the Court construes LHF's failure to oppose
the motion as an admission that Mr. Sosa's motion has
survive dismissal, complaints “must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face[.]'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Facial plausibility can be established if a
plaintiff pleads “factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. While
complaints do not need to provide detailed factual
allegations, they must offer “more than labels and
conclusions” and contain more than a “formulaic
recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555. If the complaint does not
state a cognizable legal theory, or fails to provide
sufficient facts to support a claim, dismissal is
appropriate. Robertson v. Dean Witter Reynolds,
Inc., 749 F.2d 530, 534 (9th Cir.1984).
fails to adequately allege a copyright infringement claim
against Mr. Sosa. Where plaintiffs claiming violations of the
Copyright Act do not provide specific facts linking a named
defendant to an alleged infringement, courts have found that
claims for copyright infringement are not adequately alleged.
E.g., Cobbler Nevada, LLC v. Gonzalez, Case
No. 3:15-cv-00866-SB, 2016 WL 3392368, at *6 (D. Or. June 8,
2016) (slip copy) (finding that plaintiff did not plead
sufficient facts to support Copyright Act claims where
specific facts tying defendant to alleged infringement were
not alleged); also Elf-Man, LLC v. Cariveau, No.
C13-0507RSL, 2014 WL 202096, at *2 (W.D. Wash. Jan. 17, 204)
(motion to dismiss granted where plaintiff did not offer
facts, aside from allegation that defendant paid for internet
access, to support allegation that defendant participated in
BitTorrent “swarm”). Here, LHF relies on one
fact, that Mr. Sosa was assigned a particular IP address, to
assert that Mr. Sosa was personally involved in a BitTorrent
“swarm.” See Dkt. #10 ¶ 19.
However, “the allegation that an IP address is
registered to an individual is, alone, insufficient to
support a claim that the Internet subscriber is guilty of
infringement.” E.g., Dallas Buyers Club,
LLC v. Doughty, Civ. No. 3:15-cv-00176-AC, 2016 WL
1690090, at *6 (D. Or. April 27, 2016) (slip copy).
not alleged any facts that link Mr. Sosa to the infringing
conduct alleged, and while it is possible that Mr. Sosa
participated in the BitTorrent "swarm, " it is also
possible that someone else with access to Mr. Sosa's IP
address is the actual infringer. As noted by the Ninth
Circuit in In re Century Aluminum Co. Securities
Litigation, parties must allege something more,
"such as facts tending to exclude the possibility that
[an] alternative explanation is true, " when "faced
with two possible explanations, only one of which can be true
and only one of which results in liability." 729 F.3d
1104, 1108 (9th Cir. 2013). Because LHF has not plead
sufficient facts to support its allegations, its claim
against Mr. Sosa warrants dismissal. Accordingly, Mr.
Sosa's Motion to Dismiss is GRANTED.