Arista Records LLC v. Does 1-27, No. CV-07-162-B-W.

• Decision Date: 29 October 2008
• Docket Number: No. CV-07-162-B-W.,No. CV-08-028-B-W.
• Parties: ARISTA RECORDS LLC, et al., Plaintiffs, v. DOES 1-27, Defendants.
• Court: U.S. District Court — District of Maine

584 F.Supp.2d 240

ARISTA RECORDS LLC, et al., Plaintiffs, v. DOES 1-27, Defendants.

No. CV-07-162-B-W.

No. CV-08-028-B-W.

United States District Court, D. Maine.

October 29, 2008.

Christopher Cole, James S. Lamontagne, Sheehan, Phinney, Bass & Green Manchester, NH, Katheryn Jarvis Coggon, Holme Roberts & Owen LLP, Denver, CO, for Plaintiffs.

Doe 10, pro se.

Robert E. Mittel, Mittel Asen LLC, Hannah Ames, Jason Rayne, Lisa Chmelecki, Christopher M. Northrop, Deirdre M. Smith, Cumberland Legal Aid Clinic, University of Maine School of Law, John G. Osborn, Bernstein, Shur, Portland, ME, for Defendants.

Paul W. Chaiken, Rudman & Winchell, Bangor, ME, for Interested Party.

ORDER AFFIRMING RECOMMENDED DECISION ON DEFENDANTS' MOTIONS TO DISMISS AND DISPOSING OF VARIOUS OTHER MATTERS

JOHN A. WOODCOCK, JR., District Judge.

A consortium of copyright owners and licensees claim that unknown University of Maine students have infringed their rights in copyrighted songs in violation of federal copyright laws. The Defendants, who remain anonymous, filed dispositive, discovery, and sanctions motions.¹ The Court denies each motion. The Court concludes that the Plaintiffs' claims survive even assuming the higher standard in Bell Atlantic Corp. v. Twombly² applies, that the Plaintiffs have not violated the rules on joinder, that the Plaintiffs are entitled to proceed with a discovery deposition of a third party internet service provider, and that the Plaintiffs have not violated Rule 11.

I. MOTIONS TO DISMISS

A. Procedural History

The Plaintiffs filed two symmetrical cases against Doe Defendants, alleging copyright infringement.³ Arista Records LLC v. Does 1-27, No. CV-07-162-B-W (D. Me. filed Oct. 17, 2007); Atlantic Recording Corp. v. Does 1-14, No. CV-08-028-B-W (D. Me. filed Jan. 30, 2008). Symmetrical motions to dismiss each case are ready for decision.

Seven Defendants filed the first motion to dismiss on November 14, 2007. Defs. Doe 2, 3, 6, 7, 8, 15 & 23 Mot. to Dismiss for Failure to State Claim (Docket # 10) (Mot. to Dismiss); Mem. in Supp. of the Mot. to Dismiss for Failure to State a Claim of Various Doe Defs. (Docket # 15) (Mot. to Dismiss—Mem.). Two other defendants later joined that motion. Def. Does # 16's and # 18's Mot. to Dismiss (Docket # 18); Mem. in Supp. of the Mot. to Dismiss of Def. Does #16 and #18 (Docket # 19). Following Plaintiffs' response to both motions, Pls.' Opp'n to Mot. to Dismiss of Does 2, 3, 6, 7, 8, 15 & 23 (Docket # 27) (Pls.' Opp'n), the two groups of Defendant Does replied separately. Defs.' Doe 2, 3, 6, 7, 8, 15, 22 & 23 Reply Mem. on Their Mot. to Dismiss for Failure to State a Claim (Docket # 35) (Defs.' Doe 2, 3, 6, 7, 8, 15, 22 & 23 Reply); Def. Does # 16's and # 18's Reply Mem. in Supp. of Mot. to Dismiss (Docket # 36). The Court referred the motions to dismiss to the United States Magistrate Judge, who filed her Recommended Decision on January 25, 2008. Rec. Dec. on Mots. to Dismiss, 2008 WL 222283 (Docket # 39) (Rec. Dec.). Defendants filed a joint objection to the Recommended Decision on February 11, 2008, and Plaintiffs filed their response on February 28, 2008. Def. Does # 16's and # 18's Objection to Rec. Dec. on Mot. to Dismiss (Docket # 43) (Defs.' Obj.); Pls.' Resp. in Opp'n to Def. Does #16 and # 18's Objection to Rec. Dec. on Mot. to Dismiss (Docket # 49) (Pls.' Resp.).

One Defendant, Doe 10, filed the second motion to dismiss on May 8, 2008. Mot. of Def. Doe 10 to Dismiss for Failure to State a Claim (Docket # 69). Plaintiffs filed their opposition on May 29, 2008; Doe 10 has not replied.⁴ Pls.' Opp'n to Mot. of Def. Doe 10 (08-28) to Dismiss for Failure to State a Claim (Docket # 76). On May 27, 2008, the Court consolidated the motions to dismiss for briefing and argument. Order Granting Mot. to Consol. (Docket # 67). The Court has reviewed and considered the magistrate judge's Recommended Decision, together with the entire record, and has made a de novo determination of all matters adjudicated by the magistrate judge's Recommended Decision.⁵

B. The Court Can Consider the Purpose of the Complaint When Applying the Newly-Refined Pleading Standards of Twombly

The Defendants first pin their hopes on Twombly. Acknowledging that under pre-Twombly standards, there "would have been no question but that the conclusory complaint filed by plaintiffs here satisfied the `short and plain statement' requirement of [Rule 8]," they nevertheless contend that Twombly mandates a "new and significant construction" of Rule 8, which justifies dismissal. Mot. to Dismiss— Mem. at 3. Defendants argue that Twombly not only directs courts to consider the purpose and context of the litigation when deciding motions to dismiss pursuant to Rule 12(b)(6), but also changes significantly the notice pleading standards of Rule 8(a). See Fed.R.Civ.P. 8(a) & 12(b)(6); Defs.' Obj. at 2-3. In her Recommended Decision, the magistrate judge wrote that she was "not persuaded that Twombly ushered in a new era for Rule 12(b)(6) contests in which federal courts are expected to adjust the pleading standard depending on an assessment of the social value of a particular litigation." Rec. Dec. at 11. The Court agrees.

1. Twombly

In Twombly, the Court considered whether a class action alleging violations of the Sherman Act, 15 U.S.C. § 1 et seq., could survive a Rule 12(b)(6) motion to dismiss. The complaint alleged "certain parallel conduct unfavorable to competition," but did not allege "factual context suggesting agreement, as distinct from identical, independent action." 127 S.Ct. at 1961. Twombly observed that under the substantive law, "`[t]he crucial question' is whether the challenged anticompetitive conduct `stem[s] from independent decision or from an agreement, tacit or express.'" Id. at 1964 (alterations in original) (quoting Theatre Enters., Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537, 540, 74 S.Ct. 257, 98 L.Ed. 273 (1954)). The Court further noted that because the Sherman Act prohibits "`only restraints [of trade] effected by a contract, combination, or conspiracy,'" id. (quoting Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 775, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984)), and because parallel behavior is consistent with both independent action and conspiracy, it is essential for a Sherman Act plaintiff to "include evidence [at trial] tending to exclude the possibility of independent action." Id. (citing Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984)).

After outlining the substantive law, the Court reviewed the familiar pleading standard under Rule 8(a) and the standard of review under Rule 12(b)(6):

Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.

Id. at 1964-65 (alterations in original) (citations and internal quotations omitted). Applying these standards to a claim under the Sherman Act, the Court held "that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made." Id. at 1965. The Court was careful to state that to require "plausible grounds to infer an agreement" in a Sherman Act complaint was not to "impose a probability requirement at the pleading stage." Id. Nevertheless, referring to the traditional standard of "no set of facts," Twombly concluded that "after puzzling the profession for 50 years, this famous observation has earned its retirement." Id. at 1969.

2. Twombly and the Context of the Litigation

The Defendants claim that the Plaintiffs filed the present action "solely to create a vehicle to obtain the Defendants' federally-protected educational records, then to use that information to demand settlement amounts far in excess of the Plaintiff's [sic] actual damages from the individual student-defendants." Defs.' Obj. at 3 (citations omitted). In support, Defendants ascribe a national litigation strategy to the Plaintiffs, including the filing of single complaints against multiple anonymous persons, obtaining through expedited discovery identifying information for each, and dismissing the dragnet complaints only to re-file against the unmasked individuals severally to extract speedy settlements. Id. at 5-6 (listing sixteen dismissed cases, including three in this District). Defendants request that the Court judicially notice these proceedings and infer from them that Plaintiffs' prayers for injunctive relief, statutory damages, costs, and attorney fees, are mere pretexts to obscure Plaintiffs' improper purpose of identifying anonymous, alleged infringers.

The first question is whether the Court may review filings in other cases in ruling on a motion to dismiss. First Circuit precedent permits consideration of documents "the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint." Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993); see Warren Freedenfeld Assocs. v. McTigue, 531 F.3d 38, 44 (1st Cir.2008) (matters susceptible to judicial notice may be considered when ruling on a motion to dismiss); Ezra Charitable Trust v. Tyco Int'l, Ltd., 466 F.3d 1, 9 n. 7 (1st Cir.2006) (taking judicial notice of Securities and Exchange Commission complaint filed in the United States District Court for the Southern District of New York); Fed. R.Evid. 201(b)(2). Under a Watterson exception, the Court concludes that for...