Case 1:12-cv-20920-PAS Document 33 Entered on FLSD Docket 09/10/2012 Page 1 of 11

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION SUNLUST PICTURES, LLC, Plaintiff, v. DOES 1 - 120, Defendants. _____________________________/ DEFENDANTS, IP ADDRESS 70.191.179.209, REPLY TO PLAINTIFFS RESPONSE TO MOVANTS MOTION FOR ATTORNEYS FEES COMES NOW defendant, IP Address 70.191.179.209 (Defendant), by and through the undersigned counsel, who hereby files this Reply to Plaintiffs Response to Movants Motion for Attorneys Fees, and would show as follows. I. Introduction and Factual Background 1. On March 6, 2012, plaintiff, Sunlust Pictures, LLC (Sunlust), filed its original Complaint Jury Trial Demanded (Complaint) in the U.S. District Court, Southern District of Florida, Miami Division, purporting mass joinder of unidentified defendants and alleging their infringement on the copyright (Count I) of Sunlusts pornographic film content, Sunny Leone Goddess (Complaint, 3) through a civil conspiracy (Count II), for which each unidentified defendant is contributorily negligent (Count III) through the use of a file sharing protocol known as BitTorrent. (Dkt. # 1.) 2. On March 13, 2012, this Honorable Court entered its Order Granting Plaintiffs Motion for Leave to take Discovery Prior to the Rule 26(f) Conference (Dkt. # 5), which granted Sunlusts Discovery Motion and allowed Sunlust to obtain subpoenas in various jurisdictions
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Case No: 1:12-cv-20920-PAS

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where records custodians for several Internet Service Providers (ISP) may be located. (Dkt. # 6.) 3. Dated 03/20/2012, Defendant received a MASS SUBPOENA NOTIFICATION from Neustar, as agent for Cox Communications, which put Defendant on notice that pursuant to a SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION (Subpoena) issued by the U.S. District Court for the District of Columbia (Exhibit B hereto), Cox Communications would disclose to Sunlusts counsel in Washington, D.C. on 04/23/2012 at 10:00 a.m., Defendants confidential information including his or her name, current (and permanent) addresses, telephone numbers, e-mail addresses and Media Access Control addresses of all persons whose IP addresses are listed in the attached spreadsheet. (Subpoena.) 4. Dated 04/20/2012, Defendant respectfully filed Defendants, IP Address 70.191.179.209, Motion to Quash Subpoena, Special Appearance Motion Dismiss Action, and Memorandum of Law in Support Thereof (Motion to Quash). (Dkt. # 8.) 5. On 05/04/2012, Sunlust filed Plaintiffs Omnibus Response to Movants Motion to Quash and Dismiss and Notice of Supplemental Authority. (Dkt. # 11.) Other supplemental authorities and oppositions thereto were subsequently filed. 6. On 07/23/2012, the Court entered its Omnibus Order Granting Motion to Sever, Dismissing the Claims Against Does 2-120 Without Prejudice and Vacating the Portion of the Courts Order Granting Early Discovery as to Does 2-120. (Dkt. # 26.) 7. On 08/21/12, Defendant filed Defendants, IP Address 70.191.179.209, Verified Motion for Award of Attorneys Fees (Motion for Attorneys Fees). (Dkt. # 30.)

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8. On 09/04/12, Plaintiff filed, Plaintiffs Response to Movants Motion for Attorneys Fees (Plaintiffs Response). (Dkt. # 32.) 9. This Reply is made in rebuttal to Plaintiffs Response to Movants Motion for Attorneys Fees. (Dkt. # 26) and establishes that Defendants Verified Motion should be granted. II. Memorandum of Law This Reply (Reply) challenges the legal conclusions drawn by the Plaintiff and questions the authenticity of the facts relied upon in Plaintiffs Response. This Reply fully incorporates and adopts each argument raised in the Motion for Attorneys Fees (Dkt. # 30), thus eliminating any need to repeat those arguments here. This Reply addresses Plaintiffs arguments in the order presented in its Response and utilizes the same sub-titles. A. Legal Standard Plaintiff agrees with Defendant that 17 U.S.C. 505 applies to this present action and provides for an award of reasonable attorneys fee to the prevailing party. Plaintiff likewise pleaded for attorneys fees and costs of suit in its Complaint. (Compl. 36.) Plaintiff suggests that, [d]ismissal without prejudice precludes prevailing party status, relying Cadkin v. Loose, 569 F.3d 1142 (9th Cir. 2009). This is fully discussed below. Further and also more fully discussed below, Plaintiff suggests that Defendants success in this action is purely technical or de minimus. This is not so. Plaintiff pleaded for statutory damages up to up to $150,000 or actual damages against Defendant (Compl. 35), attorneys fees and costs up to $150,000 (Compl. 36), impoundment of personal property (Compl., Wherefore Clause 3), declaratory relief (Compl., Wherefore Clause 7), and injunctive relief (Id.). Defendant, by way of its Motion to Quash, obtained severance from this action, dismissal of the claims against Defendant, and vacation of the Order that granted early discovery. (Dkt. # 26.) The relief
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obtained, particularly when contrasted against the remedies sought by Sunlust, facially shows that such relief is neither technical nor de minimus. B. Movant is not a Prevailing Party Not only does Plaintiff state that, Movant is not a prevailing party, but Plaintiff goes on to suggest that, Movant is not even a party. (Response, 2.) Plaintiff further suggests that, [a]t most, Movant is merely a third party. (Id.) Plaintiff states that, Movant calls himself a defendant in his motion, but the decision about whom to name as a defendant is for Plaintiff to make, not Movant. (Response, 3.) This statement contradicts the very language of Plaintiffs Compliant, the entirety of which postures Defendant as Defendant both through the ordinary use of the word as a pronoun and as term of art or legal parlance. If the named Doe Defendants were third parties to this action, as Plaintiff now argues they are, then there would be no defendants in this action, since the ISPs subpoenaed by the Plaintiff in this action were not named as defendants. Clearly, it is the ISP that assumes third-party status, while the Defendant is the defendant. The fact that this Defendant was not served process is irrelevant. Defendant was noticed of an opportunity to be heard or suffer the consequences of inaction and therewith made a special appearance through legal counsel. The scenario is no different from where one comes forward to challenge the perfection of a subpoena served, despite Plaintiffs contention that it is free to refile its case against Movant, name and serve him with process. (Response, 3.) Plaintiffs interpretation of the case law it provides in its Response misleads the Court. Plaintiff cites Cadkin v. Loose, 569 F.3d 1142 (9th Cir. 2009), for the proposition that, dismissal without prejudice precludes prevailing party status under Section 505. (Response, 2.) Cadkin has no bearing on the present case, because the party claiming attorneys fees in Cadkin was
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dismissed by way of voluntary dismissal. Cadkin, 569 F.3d at 1145. (Because the plaintiffs in this lawsuit remained free to refile their copyright claims against the defendants in federal court following their voluntary dismissal of the complaint, we hold the defendants are not prevailing parties and thus not entitled to the attorneys fees the district court awarded them.) It is elementary that the first voluntary dismissal is deemed to be not on the merits, while the second is. Neither scenario applies to the present action, which was adjudicated by the Court in favor of Defendants Motion to Quash. Later, Plaintiff contorts the same language from Cadkin, quoted in the paragraph immediately above, to reach the conclusion of law that since Movant was dismissed without prejudice and Plaintiff is free to re-file its case against the Movant, Movant did not prevail. (Response, 3.) The quoted language speaks for itself and has no application to the case at bar. Plaintiff relies on Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir. 1990), which Defendant also relied on in his Motion for Attorneys Fees. However, each partys reliance differs. Defendant includes Cable/Home to provide guidance on criteria to determine the reasonableness of an attorneys fee. Plaintiff postures Cable/Home seemingly to imply that Defendants success in the underlying action was purely technical or de minimus, and therefore does not qualify for a fee award. (Response, 2.) To be clear, in Cable/Home, attorneys fees were awarded for a comparable success. See Cable/Home, 902 F.2d at 860 (In summary, the district court's orders granting summary judgment to plaintiffsappellees, awarding them damages without trial, awarding them requested attorneys fees, denying defendants-appellants motion to dismiss for lack of personal jurisdiction, and denying their motion for a second extension of time to respond to plaintiffs summary judgment motion are AFFIRMED.).
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The line of cases Plaintiff relies upon for the proposition that the Defendant is not a party to this action on the grounds that Defendant was not served process (Response, 2) involve denials of motions to dismiss, quash, sever or vacate on the grounds that the defendant lacked standing. See e.g., Arista Records LLC v. Doe 3, 604 F.3d 110, 115 (2nd Cir. 2010) (The defendants, not having been served with process, were not yet parties and thus could not properly move for dismissal for failure to state a claim.) Each of the cited cases were decided outside the Eleventh Circuit. Further, it is fair to say, and perhaps Plaintiff should have informed the Court, that there is a split among the district courts. For each of these lack of standing district court rulings there is approximately the same number of district courts that rule in favor of standing. The omission is harmless, since this Court found standing and ruled in favor of Defendants Motion to Quash. Next, Plaintiff postures F.T.C. v. Compagnie de Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300 (C.A.D.C., 1980) to support the conclusion that since the Plaintiff has yet to perfect process upon the Movant, the Movant is merely a third-party witness on notice of its potential status as a party defendant. (Response, 2.) This was so in F.T.C., but not here, because the entity referred to in the quoted language from F.T.C. indeed was not named in the lawsuit, but was a witnessrecipient of a congressionally authorized subpoena based on international practice. F.T.C., 636 F.2d at 1304 (This case [F.T.C.] addresses a narrow issue of broad international consequence: did Congress expressly or impliedly authorize the Federal Trade Commission (FTC or Commission) to serve its investigatory subpoenas directly upon citizens of other countries by means of registered mail?). In September 1977 the Commission issued four identical

subpoenas duces tecum directing SGPM to produce specified classes of documents relevant to the investigation. F.T.C., 636 F.2d at 1304-05. Here, Movant was named as a Doe Defendant,
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and the third-party witness was the out-of-state subpoenaed ISP. The cited provision from F.T.C. has no relevancy to the issue at bar. Next, Plaintiff contends, that the Courts dismissal of Movant from this case was in error and provides case law and legal argument in support of such contention. (Response, 3.) No more needs to be said on this issue raised, other than the time to appeal the Courts ruling ran on August 23, 2012. It is not proper to raise such objections now. Plaintiff is estopped from arguing that the Movant is not a party to this action. An individual becomes a party when sufficiently identified in the complaint, whether by an actual or fictitious name. For example, see sections 865.09(9)(a) and (b), Florida Statutes, which make a clear distinction between plaintiffs and defendants. Under subparagraph (a), any Florida business, its members, and those interested in doing such business may not maintain any action, suit, or proceeding in any court of this state until [section 865.09] is complied with. 865.09(9)(a), Florida Statutes (emphasis added). Whereas, on the contrary, the failure to register a fictitious name does not prevent the fictitiously named party from defending any action, suit, or proceeding in any court of this state. 865.09(9)(b), Florida Statutes (emphasis added). The Complaint that gives rise to this action sufficiently identifies the Defendant. (Compl. 4, 6-13 and accompanying Exhibit A to the Complaint.) (Dkt. ## 1, 1-1.) The Movant is known as the subscriber to IP Address 70.191.179.209 as it was used at a certain date and time. According to Plaintiffs experts, there is but one of him or her. In reviewing a substantially similar complaint, the U.S. District Court for the Northern District of Illinois noted: The court notes that it cannot ignore the inconsistency of the plaintiff's position that the Doe . . . lacks standing to pursue a motion to [quash] because it has not been named or served, but at the same time refer throughout the . . . complaint to
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the [co-conspirator] who the plaintiff expressly identifies in the . . . complaint as the person with the Internet Protocol address [24.61.144.232]. . . . For all intents and purposes, the plaintiff has filed a complaint naming [Movant] IP Address [24.61.144.232] as a [co-conspirator]. The plaintiff's contention otherwise does not make it so. Millennium TGA, Inc. v. Does 1-800, No. 10-cv-05603, 2011 U.S. Dist. LEXIS 94746, *3-4 (N.D. Ill. Aug. 24, 2011). Defendants ISP sent a notice to the Movant advising that his or her information would be released in due course, unless he or she files something with the court to object to such release. This notice was provided to afford Defendant the protections granted under due process of law. U.S. Const. Amend. XIV; codified (as applied) under the Cable TV Privacy Act of 1984, 47 U.S.C. 551(c)(2)(B) (2010) (A cable operator may disclose such information if the disclosure is . . . made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed . . . .). Now, contrary to the provided notice of an opportunity to be heard, the Plaintiff alludes that Movant does not have party standing to participate in these proceedings. Plaintiff is estopped from bringing this argument at this time, particularly where the Plaintiff chose to proceed in mass-joinder and, in the manner executed, added such numerosity to the list of Doe Defendants. Doe 18 is a de facto named party and Plaintiff and is estopped from contending otherwise. A nonparty cannot be bound by a case in which he or she is not a party unless the party is represented in the action and the representation is full and adequate. Feen v. Ray, 109 Ill. 2d 339, 348, 487 N.E.2d 619, 622 (1985); Hansberry v. Lee, 311 U.S. 32 (1940). A failure of due process occurs in those cases where it cannot be said that the procedure adopted fairly insures the protection of the interests of absent parties who are to be bound by it. Juris v. Inamed Corp., 2:97-cv-11441, at *30 (11th Cir. July 6, 2012).
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To prevent Defendant from seeking attorneys fees under the anonymity used in the underlying case begs the question as to whether these proceedings initiated by the Plaintiff are truly adversarial or little more than an attempt to use expedited discovery to wrest quick settlements, regardless of innocence, as argued in Defendants Motion to Quash. (Dkt. # 8.) On the Cheap, LLC v. Does 1-5011, No. 10-cv-04472, 2011 U.S. Dist. LEXIS 99831 (N.D. Cal. 2011); see also, VPR Internationale v. Does 1-1017, No. 11-cv-02068, 2011 U.S. Dist. LEXIS 64656 (C.D. Ill. 2011). In the present action, only two Doe Defendants have come forward. It is reasonable to believe that Plaintiff settled with many others, despite lack of service of process. This is Sunlusts business model. C. Movants Attempt to Proceed Anonymously Must be Denied First, there is no motion pending for the Movant to proceed anonymously. Second, the argument that Movant not be allowed to proceed anonymously is being made by the party that named Movant anonymously on its own volition. The cases relied upon by Plaintiff in its Response simply do not apply to the case at bar. They are each based on fact patterns different from the present case. A showing of fear of severe harm is not a condition precedent for a litigant to seek an award of attorneys fees. (Response, 4.) Plaintiffs analogy to the right to cross-examine defendants facing criminal charges also has no bearing on the present case. (Response, 4.) Nor does Plaintiffs contention that the Plaintiff must be allowed to depose the Movant to assess and . . . argue the various factors that are relevant to the Courts discretion in determining the reasonableness of the attorneys fee sought have any significant import. (Response, 4.) On the contrary, the clients testimony is not relevant to a showing of reasonableness. Defendants counsel provided detailed time records of the attorneys time incurred, under oath,
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(Dkt. # 30-2) and a collaborating affidavit of reasonableness sworn to by Defendants expert witness (Dkt. # 30-3). Counsel also provided a copy of the governing attorney-client written fee agreement. (Dkt. # 30-1.) No more is needed. Counsel and Defendants expert witness are prepared to defend the reasonableness of the fee award sought. As to the pejorative statement made by Plaintiff that, [t]here are alarming factual discrepancies in Movants motion, such as the inconsistency between the amount Movant paid his attorney ($800) and the amount he is now seeking in fees ($5,336.25) (Response, 4), Defendant would show that there is nothing alarming or discrepant about these readily ascertainable facts. The client paid $800, as stated and reflected in the fee agreement, and the attorney is seeking $5,336.25, as reflected in the Attorneys Affidavit of Time. (Exhibits A and B to Defendants Motion; Dkt. ## 30-1 & 30-2.) Defendants Motion articulated criteria the Court may look to when adjudicating the reasonableness of an attorneys fee, including the wellknown loadstar principle and the twelve considerations articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The amount paid by the client is not included in such criteria. Indeed, the preponderance of attorney fee awards granted using the loadstar principle involve contingent-fee agreements where the client pays nothing. It is worth noting that not once does Plaintiff state that the amount prayed for by the Movant is not reasonable. III. Conclusion The Court should find that Defendant has standing to move for an award of attorneys fees incurred in bringing forth and prevailing on Defendants, IP Address 70.191.179.209, Motion to Quash Subpoena, Special Appearance Motion To Dismiss Action, and Memorandum of Law in Support Thereof. An attorney fee award is available to a party dismissed without
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prejudice, except on a voluntary dismissal, which did not occur here. Defendant prevailed on the merits. The Copyright Act provides for an attorney fee award to the prevailing party in this action. The law and facts show no alternative but to find that Defendant was the prevailing party in this action and is entitled to recover reasonable costs, including attorneys fees under 17 U.S.C. 505, and such other relief the Court deems equitable and just under the circumstances. Respectfully submitted by: WILLIAM R. WOHLSIFER, PA By: /s/ William R. Wohlsifer William R. Wohlsifer, Esquire Fla. Bar No: 86827 1100 E Park Ave Ste B Tallahassee, Florida 32301 Tel: (850) 219-8888 Fax: (866) 829-8174 E-Mail: william@wohlsifer.com CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was served on all parties receiving electronic notification via the Courts CM/ECF system as of September 10, 2012. By: /s/ William R. Wohlsifer William R. Wohlsifer, Esquire Fla. Bar No: 86827

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