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Purzel Video Gmbh v. Key

United States District Court, Tenth Circuit

December 2, 2013

PURZEL VIDEO GmbH, Plaintiff,


MICHAEL E. HEGARTY, Magistrate Judge.

Before the Court is Plaintiff's Motion and Memorandum to Dismiss Defendant Inge's Counterclaims and to Strike Defendant Inge's Affirmative Defenses at ¶¶ 19, 20, 22, 23, 21(2nd), 22(2nd), and 26 [filed October 22, 2013; docket #40] ("the Motion"). The Motion has been referred to this Court for recommendation. (Docket #41.) The Motion is fully briefed, and the Court finds that oral argument will not assist in the adjudication of the Motion. Based upon the record herein and for the reasons that follow, the Court RECOMMENDS that Plaintiff's Motion be GRANTED.[1]


Plaintiff initiated this action on May 2, 2013, alleging that multiple Doe Defendants, identified only by their Internet Protocol ("IP") addresses, infringed on Plaintiff's copyrighted work by using the internet and a "BitTorrent" protocol to reproduce, distribute, display, or perform Plaintiff's protected films. In an effort to identify the alleged infringers, Plaintiff requested permission from the Court to serve limited, immediate discovery on the Doe Defendants' Internet Service Provider ("ISP") prior to the Rule 26(f) conference. (Docket #4.) The Court determined that Plaintiff had shown good cause for limited expedited discovery and granted Plaintiff's Motion in part. (Docket #11.) In particular, the Court authorized Plaintiff to serve third party subpoenas pursuant to Fed.R.Civ.P. 45 on the identified ISP for the limited purpose of ascertaining the identity of the Doe Defendants as set forth in Plaintiff's Complaint. The Court directed that the subpoenas be limited to providing Plaintiff with the true name, address, telephone number, email address, and Media Access Control address of the Defendants to whom the ISP had assigned an IP address. With each subpoena, the Court directed Plaintiff serve a copy of its order. Finally, the Court emphasized that Plaintiff could only use the information disclosed in response to the subpoenas for the purpose of protecting and enforcing its rights as set forth in its Complaint [docket #1]. The Court cautioned Plaintiff that improper use of this information could result in sanctions.

In accordance with the Court's order, Plaintiff served a Rule 45 subpoena on Defendant Geoffe Inge's ISP and obtained his identity. Thereafter, Plaintiff filed an Amended Complaint on August 20, 2013. (Docket #21.) Defendant Inge filed his Answer to Plaintiff's Amended Complaint on October 1, 2013, asserting thirteen (13) defenses and five (5) counterclaims. (Docket #32.)

In a single motion, Plaintiff moved to dismiss Defendant Inge's counterclaims and to strike seven (7) of his affirmative defenses on October 22, 2013. (Docket #29.) Defendant filed a response to the present motion on November 6, 2013, and Plaintiff filed a reply on November 20, 2013. The Court is now fully advised and recommends as follows.


I. Legal Standard

"To survive a motion to dismiss, a complaint 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Twombly requires a two-prong analysis. First, a court must identify "the allegations in the complaint that are not entitled to the assumption of truth, " that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 678-80. Second, the Court must consider the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.

Plausibility refers "to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.' Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). "The nature and specificity of the allegations required to state a plausible claim will vary based on context." Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.

However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. The complaint must provide "more than labels and conclusions" or merely "a formulaic recitation of the elements of a cause of action, " so that "courts are not bound to accept as true a legal conclusion couched as a factual allegation.' Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, " the complaint has made an allegation, "but it has not shown that the pleader is entitled to relief." Id. (quotation marks and citation omitted).

II. Analysis

Defendant Inge brings counterclaims against Plaintiff for (1) abuse of process, (2) malicious prosecution, (3) invasion of privacy, (4) outrageous conduct, and (5) groundless and frivolous lawsuit. Keeping the applicable legal standard in mind, the Court will analyze each of these counterclaims in turn.

A. Abuse of Process

A claim for abuse of process requires proof of three elements: "(1) an ulterior purpose for the use of a judicial proceeding; (2) willful action in the use of that process which is not proper in the regular course of the proceedings, i.e., use of a legal proceeding in an improper manner; and (3) resulting damage." Hertz v. Luzenac Group, 576 F.3d 1103, 1117 (10th Cir. 2009) (quoting Lauren Corp. v. Century Geophysical Corp., 953 P.2d 200, 202 (Colo.App.1998)). Thus, to succeed on an abuse of process claim, a party must show not only improper motive, but also that the legal proceeding was used in an improper manner. Id. "[A]lthough the litigant's motive may be important in determining whether there was an ulterior purpose' for the use of the process, it still must be established that, viewed objectively, there was an improper use of the process." Id. (emphasis original). "If the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint there is no abuse, even if the plaintiff had an ulterior motive in bringing the action or if he knowingly brought suit upon an unfounded claim." James H. Moore & Assocs. Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 373 (Colo.App. 1994) (quoting Inst. for Prof'l Dev. v. Regis Coll., 536 F.Supp. 632, 635 (D. Colo. 1982).

Defendant Inge's abuse of process claim is based upon allegations that Plaintiff's lawsuit "is not to protect copyrighted material, but to embarrass, shame, humiliate and extort individuals, such as Defendant Inge, into paying money to avoid being publicly associated with the downloading of pornography[.]" (Docket #32, ¶ 8.) In support of the foregoing conclusory allegation, Defendant Inge alleges that "Plaintiff delivered a letter to Defendant Inge that included the disgusting name of its work' and threatened legal action in an attempt to extort a settlement' in the amount of $4, 000.00." (Docket #32, ¶11.) A copyright owner may recover an award of statutory damages for an infringement with respect to any one work ...

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