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Af Hodlings, LLC v. John Doe and John Botson

October 3, 2012

AF HODLINGS, LLC, PLAINTIFF,
v.
JOHN DOE AND JOHN BOTSON, DEFENDANTS.



The opinion of the court was delivered by: Edward J. Davila United States District Judge

United States District Court For the Northern District of California

ORDER GRANTING MOTION TO DISMISS [Re: Docket Item No. 17]

Presently before the Court is Defendant John Botson's ("Botson") Motion to Dismiss the

First Amended Complaint filed by Plaintiff AF Holdings, LLC ("AF Holdings"). Having fully 19 reviewed the parties' papers and considered their arguments, the Court will grant Botson's motion 20 for the reasons described below. 21 22

I. BACKGROUND

AF Holdings filed this action on April 24, 2012 against Botson and one "John Doe" 24 defendant. See Compl., Docket Item No. 1. The cause of action arises out of the alleged piracy and 25 copyright infringement of one of AF Holdings' copyrighted adult entertainment videos ("the 26 Video"). In its First Amended Complaint, filed June 14, 2012, AF Holdings alleges that the "Doe" 27 defendant unlawfully downloaded, republished, and distributed copies of the Video using an online 28 peer-to-peer sharing tool known as BitTorrent. First Am. Compl. at ¶¶ 7, 26. AF Holdings also 2 alleges that Defendant Botson was the holder of the Internet Protocol ("IP") address used for the 3 allegedly unlawful infringement activity at the time of the alleged infringement. Id. at ¶ 4. 4

5 infringement in the form of unlawful reproduction, copyright infringement in the form of unlawful 6 distribution, and contributory infringement. Id. AF Holdings' sole claim against Defendant Botson 7 is that of the tort of negligence: that Botson breached an alleged duty to secure his Internet 8 connection by failing to prevent its use for an illegal purpose, namely, Defendant Doe's 9 downloading, republishing, and distributing the Video in violation of Plaintiff's copyright. Id. at 10

14 specificity to "give the defendant fair notice of what the . . . claim is and the grounds upon which it 15 rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). A 16 complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim 17 upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). "Dismissal under Rule 12(b)(6) is 18 appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a 19 cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 20 2008). Moreover, the factual allegations "must be enough to raise a right to relief above the 21 speculative level" such that the claim "is plausible on its face." Twombly, 550 U.S. at 556--57. 22

When deciding whether to grant a motion to dismiss, the court generally "may not consider 23 any material beyond the pleadings." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 24 1542, 1555 n.19 (9th Cir. 1990). The court must accept as true all "well-pleaded factual 25 allegations." Ashcroft v. Iqbal, 556 U.S. 662 (2009). The court must also construe the alleged facts 26 in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 27

1988). "[M]aterial which is properly submitted as part of the complaint may be considered."

AF Holdings brings three claims against the unknown "Doe" defendant: direct copyright

United States District Court For the Northern District of California

¶¶ 59--60. AF Holdings does not explicitly allege any copyright claim against Botson.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient Twombly, 550 U.S. at 555. But "courts are not bound to accept as true a legal conclusion couched 2 as a factual allegation." Id. 3 4 6 secure his Internet connection to protect against unlawful acts of third parties. First Am. Compl. at 7 at ¶¶ 59, 60. AF Holdings contends that Botson breached that duty when he failed to secure his 8

III. DISCUSSION

AF Holdings' negligence claim essentially rests on a theory that Botson had a duty to Internet connection after he was on "actual or constructive notice of the use of his Internet 9 connection for an unlawful activity." Id. at ¶ 61. 10

sufficient to show that AF Holdings has failed to state a claim upon which relief could be granted.

First, Botson argues that the negligence claim is preempted by § 301 of the Copyright Act. Second, 13

Decency Act ("the CDA") and thus the negligence claim cannot be sustained as against him. And 15 third, Botson contends that AF Holdings has not sufficiently alleged the elements of negligence 16 because, as a matter of law, Botson had ...


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