Case ID: 120401874 Control No.: 12042085
All warfare is based on deception.
— Sun Tzu, The Art of War
Such is the lawsuit entitled Liberty Media Holdings, LLC v. John Does 1-441; a deception being practiced upon the Philadelphia Court of Common Pleas in which the plaintiff is seeking pre-complaint discovery of the personal identifying information of 441 Comcast subscribers. Plaintiff has claimed that it needs this discovery in accordance with Pa. R. Civ. Procedure 4003.8 (writ of summons) so as to bring a future complaint for unjust enrichment and conversion against these individuals based upon their alleged pirating of plaintiff’s unspecified adult content during the period of 10/30/2011 through 2/2/2012.
On 3/18/2012 Judge Allan L. Tereshko granted the plaintiff pre-complaint discovery by means of a subpoena on Comcast. Subsequently on 6/11/2012 Comcast filed a motion to quash the subpoena and a motion for a protective order which was denied on 7/13/2012. Plaintiff filed a petition on 7/20/2012 to hold Comcast in contempt of court for failing to produce the pre-complaint discovery which has yet to be decided. Comcast made a motion for reconsideration of the judge’s denial on 7/23/12 which the judge also denied on 7/31/12. Undeterred Comcast filed a motion for permission to take an interlocutory appeal of the judge’s denial of their motions to the Superior Court on 8/1/2012. One of the John Does filed a motion to quash the Comcast subpoena on 8/3/12 which is pending.
Does wishing to fight this lawsuit should look at some of its obvious problems:
- Lack of subject matter jurisdiction: A future state lawsuit for unjust enrichment and conversion is preempted by the federal Copyright Act.
- Lack of personal jurisdiction: TAC has pointed out that the large majority of the IP addresses are located outside of Pennsylvania and the individuals linked to those addresses may be outside of the court’s jurisdiction (long-arm statute).
- Improper joinder
- Damages: Unlike a copyright infringement lawsuit, there are no statutory damages for unjust enrichment or conversion. In all likelihood plaintiff’s damages would equal a lost sale (i.e. purchase price of the adult content). Plaintiff has admitted this in its motion to take pre-complaint discovery (unjust enrichment = “…film’s sale’s price, which is normally paid by law-abiding customers”). So assuming the high end of a retail sale for plaintiff’s content; $60 per film downloaded as damages.
- The best grounds for a motion to quash comes from the standard for pre-complaint discovery: “Under no circumstance should a plaintiff be allowed to embark upon a “fishing expedition,” or otherwise rely on an amorphous discovery process to detect a cause of action he lacks probable cause to anticipate prior to the pre-complaint discovery process under this standard.” He said that he couldn’t find any previous case where pre-complaint discovery was used to obtain the identity of a John Doe, let alone 400 of them, which made this a fishing expedition. (This is a lawyer’s opinion: thanks to anonymous commenter for this update.)
|A. Jordan Rushie of Mulvihill & Rushie LLC
Pa. Id. 209066
Mulvihill & Rushie LLC
2424 East York Street
Philadelphia, PA 19125
Local counsel for Mark Randazza
- Civil Cover Sheet
- Motion for Hearing to Take Pre-Complaint Discovery Under Pa. R. Civ. P. 4003.8
- Praecipe to Attach
- Exhibit A
- Praecipe to Issue Writ of Summons
- 08/23/2012 Plaintiff’s Reply to “John Doe’s” Motion to Quash
List of IP addresses with resolved URLs (OCR: may contain errors and omissions)
This case is over.