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:
(1) Defendant's motion to dismiss, abate, or for more
definite statement, docket no. 21, is DENIED in part and
GRANTED in part, as follows:
(a) The motion to dismiss or abate this matter because
plaintiff is not now, or was not at the time this case was
commenced, registered in California as a foreign corporation
is DENIED. Although such registration pursuant to California
Corporations Code § 2105(a) would be required for
plaintiff to maintain suit in a court in California,
see Cal. Corp. Code § 2203; see also Hurst
v. Buczek Enters., LLC, 870 F.Supp.2d 810, 818-23 (N.D.
Cal. 2012), it is not a prerequisite to filing an action in
this court. See WF Capital, Inc. v. Barkett, 2010 WL
3064413 at *5 (W.D. Wash. Aug. 2, 2010) (failure to acquire
the requisite certificate before transacting business in
California results “only in the imposition of a
nominalfine” and preclusion from suing in
California courts until a certificate is obtained); see
also Joyce Yeager, Borders and Barriers, Definitions
of Authority to Do Business as a Foreign
Corporation, 102 Com. L.J. 398, 411 (1997) (“a
state cannot require a certificate for authority to conduct
business where the foreign corporation is engaged only in
interstate business”); id. at 422-26
(discussing the standards applicable to foreign entities
transacting both intrastate and interstate business).
(b) The motion for more definite statement is GRANTED.
Plaintiff must “give the defendant fair notice of what
the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (alteration in original, quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiff has not
done so in this case, and defendant has met the
“high” standard for showing that the operative
pleading is in need of a more definite statement. See
Sterling Sav. Bank v. Stanley, 2012 WL 13018729 at *2
(E.D. Wash. June 6, 2012) (indicating that under Federal Rule
of Civil Procedure 12(e), an assertion that “detail is
simply wanting is insufficient” (citing Castillo v.
Norton, 219 F.R.D. 155, 163 (D. Ariz. 2003) (citing
Sheffield v. Orius Corp., 211 F.R.D. 411, 414-15 (D.
Or. 2002)))). The question is whether the complaint is
“so vague or ambiguous” that defendant
“cannot reasonably prepare a response.”
Fed.R.Civ.P. 12(e). The Court agrees with defendant that the
operative pleading does not contain sufficient information to
provide him with notice concerning what copyrighted material
was allegedly infringed. The complaint pleads that
plaintiff's investigator obtained only one or more
pieces of the digital media files
listed on Exhibit A from defendant's Internet Protocol
(“IP”) address. Compl. at ¶ 25 (docket no.
1). The complaint further alleges that a full copy of the
digital media files listed on Exhibit A were obtained by
plaintiff's investigator from “the BitTorrent file
distribution network, ” as opposed to defendant's
IP address. Id. at ¶ 26. Although plaintiff
contends that the digital media files listed on Exhibit A
contain copies of plaintiff's copyrighted works,
plaintiff does not plead that the
pieces of the files downloaded from
defendant's IP address are or contain renderable,
viewable versions of plaintiff's copyrighted works or any
portions thereof. Moreover, although Exhibit A contains
registration numbers (beginning with “PA”) for
some of plaintiff's copyrighted works, it also provides
figures (presumably application numbers) that cannot be used,
absent payment of a fee to the United States Copyright
Office, to identify the title or other meaningful identifying
information about the allegedly copyrighted material, and
thus, defendant cannot determine from the complaint what he
accused of infringing. Finally, because the operative
pleading offers no detail concerning what software or
hardware was used by plaintiff's investigator to harvest
the pieces of the digital media
files at issue and sets forth no facts tending to show that
defendant was using the IP address at issue at the times
listed in Exhibit A, the Court is unpersuaded that plaintiff
has alleged a sufficient link between defendant and the IP
address at issue, which might have been spoofed, used without
defendant's knowledge or consent, or otherwise falsely
implicated. See Michael Piatek, Tadayoshi Kohno,
& Arvind Krishnamurthy, Challenges and Directions for
Monitoring P2P File Sharing Networks - or - Why My Printer
Received a DMCA Takedown Notice, available at
http://dmca.cs.washington.edu; see also AF Holdings LLC
v. Rogers, 2013 WL 358292 at *3 (S.D. Cal. Jan. 29,
2013) (“Due to the risk of ‘false positives,
' an allegation that an IP address is registered to an
individual is not sufficient in and of itself to support a
claim that the individual is guilty of infringement.”).
(c) Within twenty-eight (28) days of the date of this Minute
Order, plaintiff shall electronically file an amended
complaint addressing the deficiencies outlined in Paragraph
1(b), above. Defendant's responsive pleading or motion
shall be due within fourteen (14) days after plaintiff files
its amended complaint.
scheduling conference set for June 14, 2018, is STRICKEN.
Counsel are DIRECTED to meet and confer and to file a revised
Joint Status Report within twenty-one (21) days after
plaintiff files an amended complaint.
Clerk is directed to send a copy of this Minute Order to all
counsel of record.
 The Court notes that
“nominal” might be an inaccurate description and
that the fine ($20/day) might be hefty if plaintiff has been
engaged in unauthorized intrastate business in California for
a long time. See Cal. Corp. Code §
 Plaintiff states that its investigator
did not upload plaintiff's copyrighted works to any
BitTorrent user, see Compl. at ¶ 28, but
plaintiff does not aver under oath that it did not itself
make copyrighted material available via BitTorrent.
 Defendant argues that plaintiff's
witness, Susan B. Stalzer, failed to indicate whether the
digital media files listed on Exhibit A are “identical,
strikingly similar or substantially similar” to the
deposit copies submitted to the United States Copyright
Office. See Stalzer Decl. at ¶ 10 (docket no.
4-5). Stalzer's declaration was one of four declarations
that accompanied plaintiff's motion for leave to serve a
subpoena on the Internet service provider associated with the
IP address at issue. See Lansky Decl. (docket no.
4-2); Fieser Decl. (docket no. 4-3); Pasquale Decl. (docket
no. 4-4); Stalzer Decl. (docket no. 4-5). Defendant
challenges the veracity and accuracy of these declarations.
In evaluating the sufficiency of ...