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LLC v. Doe

United States District Court, W.D. Washington, Seattle

July 8, 2019

JOHN DOE (, Defendant.


          Thomas S. Zilly United States District Judge

         THIS MATTER comes before the Court on plaintiff Strike 3 Holdings, LLC's motion, docket no. 71, for partial summary judgment as to defendant John Doe's abuse-of-process counterclaim. Having reviewed all papers[1] filed in support of, and in opposition to, the motion, including defendant's supplemental response, docket no. 148, and plaintiff's reply thereto, docket no. 161, the Court enters the following order.


         This case is one of nine actions filed within a two-day period by plaintiff Strike 3 Holdings, LLC (“Strike 3”), each alleging that the subscriber associated with a particular Internet Protocol (“IP”) address had infringed one or more of Strike 3's copyrighted adult motion pictures. See Compl. (docket no. 1); see also Am. Compl. (docket no. 43). The other eight matters were voluntarily dismissed by Strike 3.[2] This lawsuit is the only one that remains pending, albeit not because of Strike 3's infringement claim, which was voluntarily dismissed on August 24, 2018, see Notice (docket no. 53), but as a result of defendant's counterclaims for a declaration of non-infringement and abuse of process. See Minute Order (docket no. 58); 2d Am. Counterclaims (docket no. 64). Strike 3 now moves for partial summary judgment as to defendant's abuse-of-process counterclaim.[3]

         A. Summary Judgment Standard

         The Court may grant summary judgment if no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). To survive a motion for summary judgment, the adverse party must present “affirmative evidence, ” which “is to be believed” and from which all “justifiable inferences” are to be favorably drawn, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 257 (1986), showing that a rational trier of fact could find for such party on matters as to which such party will bear the burden of proof at trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S 574, 587 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         B. Abuse of Process

         In Washington, the elements of the tort known as “abuse of process” are as follows: (i) the existence of an ulterior purpose to accomplish an object not within the proper scope of the process, (ii) an act in the use of legal process not proper in the regular prosecution of the proceedings, and (iii) harm proximately caused by the abuse of process. Bellevue Farm Owners Ass'n v. Stevens, 198 Wn.App. 464, 477, 394 P.3d 1018 (2017). The crucial inquiry is whether the judicial system's process, after having been made available to secure the presence of the opposing party, has been misused to achieve another, inappropriate end. See Mark v. Williams, 45 Wn.App. 182, 192, 724 P.2d 428 (1986). The mere institution of a legal proceeding, even with a malicious motive, does not constitute an abuse of process. Vargas Ramirez v. United States, 93 F.Supp.3d 1207, 1232 (W.D. Wash. 2015). Even the filing of a baseless or vexatious lawsuit is not misusing the process, and no liability attaches if nothing is done with the litigation “other than carrying it to its regular conclusion.” Batten v. Abrams, 28 Wn.App. 737, 749, 626 P.2d 984 (1981).

         To prove his abuse of process counterclaim, defendant must establish that Strike 3 engaged in an act, after using legal process, “to accomplish an end not within the purview of the suit.” Vargas Ramirez, 93 F.Supp.3d at 1232; see also Batten, 28 Wn.App. at 748 (the tort “goes to use of the process once it has been issued for an end for which it was not designed”). The acts about which defendant complains fall into two categories: (i) alleged misrepresentations made to obtain summons; and (ii) allegedly improper discovery efforts.

         The first set of accusations do not an abuse-of-process claim make. Defendant contends that Strike 3 knew, but failed to disclose to the Court, that it had no way of linking the subscriber of the IP address at issue with the allegedly infringing behavior. Even if true, such assertion does not establish an “abuse of process” because it involves events that occurred before, and not after, the use of process. See Vargas Ramirez, 93 F.Supp.3d at 1232; see also Batten, 28 Wn.App. at 748.

         Moreover, given the unsettled nature of the law preceding Strike 3's voluntarily dismissal of its copyright infringement claim, defendant cannot show that Strike 3 engaged in behavior “not proper in the regular prosecution of the proceedings.” See Bellevue Farm, 198 Wn.App. at 477. The alleged misrepresentations upon which defendant's abuse-of-process counterclaim is premised all occurred before the Ninth Circuit issued its landmark decision in Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142 (9th Cir. 2018).[4] In Cobbler Nevada, the appellate court for the first time made clear that a copyright infringement claim based merely on a defendant's status as a subscriber of an IP address associated with infringing activity does not cross the threshold of “plausibility” that pleadings in federal court must satisfy. Id. at 1145, 1147 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Strike 3's conduct in this litigation cannot be judged by standards announced after it voluntarily dismissed its infringement claim.

         Defendant's second group of grievances relate to Strike 3's defense against the abuse-of-process counterclaim, rather than the prosecution of its now defunct copyright infringement claim, and likewise cannot form the basis of an abuse-of-process claim. Defendant contends that Strike 3 has targeted his son and misused the discovery process to explore whether defendant's son, other family members, or friends engaged in infringement of Strike 3's copyrighted materials. For support, defendant cites depositions that were taken in April 2019 and June 2019, Exs. 10 & 11 to McEntee Decl. (docket nos. 150-10 & 150-11), long after Strike 3 voluntarily dismissed its copyright infringement claim, but while Strike 3 faced potential liability on defendant's abuse-of-process counterclaim. Strike 3 was entitled to pursue a theory of defense that another member of defendant's household or someone with access to defendant's IP address had infringed one or more of Strike 3's motion pictures via the BitTorrent network, which would undermine defendant's allegation that Strike 3's copyright infringement claim was frivolous and asserted for purely extortionist or other improper purposes. Defendant simply has not offered the requisite “affirmative evidence, ” see Anderson, 477 U.S. at 257, of anything done by Strike 3 in connection with this action “other than carrying it to its regular conclusion.” See Batten, 28 Wn.App. at 749.

         C. Non-Infringement

         As acknowledged by Strike 3, defendant is entitled to a declaratory judgment that he has not himself infringed any of Strike 3's copyrighted works. Defendant, however, has not sought summary judgment, and the Court is not inclined to grant such relief sua sponte in light of the related issue of attorney's fees and costs. Counsel are DIRECTED to meet and confer and, if possible, to file a form of proposed judgment within twenty-one (21) days of the date of this Order. With respect to attorney's fees and costs, the parties shall attempt to reach agreement concerning whether and, if so, how much defendant should receive, bearing in mind that, under the Copyright Act, attorney's fees are discretionary, and the Court may decline to award them. See Killer Joe Nevada, LLC v. Does 1-20, 807 F.3d 908, 911 (8th Cir. 2015); Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1200-01 (10th Cir. 2005); see also Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994) (setting forth the following nonexclusive factors: frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case), and the need in particular ...

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