United States District Court, W.D. Washington, Seattle
S. Zilly United States District Judge
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 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.
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. 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
Summary Judgment Standard
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).
Abuse of Process
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).
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.
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.
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). 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.
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.
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