Case 8:22-cv-02286-JMC Document 19 Filed 03/24/23 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`NICO TRINKHAUS,
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` Plaintiff,
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`ANABON SECURITY LLC,
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` Defendant.
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`MEMORANDUM OPINION1
`Plaintiff Nico Trinkhaus filed this copyright infringement action against Defendant
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`Civil Case No: 8:22-cv-02286-JMC
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`Anabon Security LLC on September 9, 2022. (ECF No. 1). Presently before the Court are two
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`Motions: (1) Plaintiff’ Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f)
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`Conference (ECF No. 5) (“Plaintiff’s Motion”) and (2) Defendant’s Motion to Dismiss, or, in the
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`Alterative, for Summary Judgment (ECF No. 10) (“Defendant’s Motion”).2 In addition to these
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`Motions, the Court has considered Plaintiff’s Opposition to Defendant’s Motion (ECF No. 12) and
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`Defendant’s Reply in further support of Defendant’s Motion (ECF No. 14). The Court finds that
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`no hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). For the reasons explained below,
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`Defendant’s Motion, treated as a motion to dismiss, is DENIED without prejudice as to
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`Defendant’s ability to again move for summary judgment at a time which the Court will determine
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`in the forthcoming scheduling order. Furthermore, Plaintiff’s Motion is DENIED as moot.
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`1 Originally, this case was assigned to Judge Hazel. However, on February 23, 2023, this case was reassigned to the
`undersigned for all further proceedings, pending the unanimous consent of the parties. (ECF No. 15). On March 1,
`2023, both parties consented to the undersigned’s jurisdiction.
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` Additionally, the parties filed a Consent Motion for Extension (ECF No. 11) on December 7, 2022. Therein, the
`parties requested additional time to file an opposition and reply regarding Defendant’s Motion. As the parties have
`already fully briefed Defendant’s Motion in accordance with their requested schedule, the Court will GRANT the
`parties’ Consent Motion for Extension (ECF No. 11).
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`Case 8:22-cv-02286-JMC Document 19 Filed 03/24/23 Page 2 of 11
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`I. BACKGROUND
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`“At the motion to dismiss stage, the Court takes the allegations of the complaint as true, . .
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`. and [it] construes any disputed allegations in the light most favorable to the plaintiff . . . .” Krell
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`v. Queen Anne’s Cnty., No. JKB-18-637, 2018 WL 6523883, at *2 (D. Md. Dec. 12, 2018) (other
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`citations omitted).
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`Plaintiff is a professional photographer, and he is the legal and rightful owner of
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`photographs which he licenses to online and print publications. (ECF No. 1 at p. 2, ¶ 10).3 At
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`sunrise on August 20, 2016, Plaintiff authored an aerial photograph (“the Photograph”) of the
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`Singapore Marina in the Republic of Singapore. Id. at p. 3, ¶ 23. On March 20, 2018, Plaintiff
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`registered the Photograph with the United States Copyright Office (“USCO”) under Registration
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`No. VA 2-104-395. Id. at p. 3, ¶ 24. On March 16, 2021, Plaintiff discovered the Photograph on
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`a website owned and operated by Defendant.4 Id. at p. 3, ¶ 25. Defendant utilized an exact copy
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`of the vast majority of the Photograph on Defendant’s website. Id. at p. 4, ¶ 31. Defendant’s use
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`of the Photograph was unaccompanied by a license or permission from Plaintiff. Id. at p. 4, ¶ 29.
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`Regarding the website, Defendant takes an active and pervasive role in the content posted thereon.
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`Id. at p. 4, ¶ 32. Defendant’s website involvement includes—but is not limited to—copying and
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`posting images on the website. Id.
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`On April 28, 2022, Plaintiff notified Defendant of Plaintiff’s concern regarding
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`Defendant’s use of the Photograph. Id. at p. 4, ¶ 34. On June 21, 2022, Plaintiff again notified
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`Defendant of Plaintiff’s concern. Id. at p. 4, ¶ 35. Despite these notifications, Defendant continued
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`3 When the Court cites to a specific page number, the Court is referring to the page numbers provided in the electronic
`filing stamps located at the top of every electronically filed document.
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` The website is located at the following Uniform Resource Locator (“URL”) : https://www.anabon.com/. Id. at p. 4,
`¶ 26.
` Plaintiff alleges
`that
`the Photograph was
`stored at URL: https://www.anabon.com/wp-
`content/uploads/2020/11/TIANDY-Panarromic-technology.jpg. Id. at p. 4, ¶ 27.
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`Case 8:22-cv-02286-JMC Document 19 Filed 03/24/23 Page 3 of 11
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`to store and display the Photograph on the website. Id. at p. 4, ¶ 36. During the period relevant to
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`the case sub judice, Defendant possessed complete control over—and actively reviewed and
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`monitored the content on—the website. Id. at p. 5, ¶ 40. As a result of Defendant’s use of the
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`Photograph, Defendant has enjoyed an increase in traffic to the website, which has further resulted
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`in Defendant experiencing an increase in its merchandise sales. Id. at p. 5, ¶ 44.
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`II.
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`STANDARD OF REVIEW
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`A. Rule 12(b)(6) Failure to State a Claim
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`“Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain a
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`‘short and plain statement of the claim showing that the pleader is entitled to relief.’” Love v.
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`Rumgay, No. RDB-13-1402, 2016 WL 1028001, at *4 (D. Md. Mar. 15, 2016) (quoting Fed. R.
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`Civ. P. 8(a)(2)). “Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal
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`of a complaint if it fails to state a claim upon which relief can be granted.” Love, 2016 WL
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`1028001, at *4. The purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to
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`resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
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`Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
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`The Supreme Court of the United States’ opinions in Bell Atl. Corp. v. Twombly, 550 U.S.
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`544 (2007), and Ashcroft v. Iqbal, 556 U.S. 544 (2007), “require that complaints in civil actions
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`be alleged with greater specificity than previously required.” Walters v. McMahen, 684 F.3d 435,
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`439 (4th Cir. 2012) (other citation omitted). When ruling on a Rule 12(b)(6) motion to dismiss, a
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`court must apply “[t]wo working principles . . . .” Iqbal, 556 U.S. at 678. First, although a court
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`must accept as true all the factual allegations contained in a complaint, any legal conclusions that
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`are drawn from those facts are not afforded such deference. Id. (stating that “[t]hreadbare recitals
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`of the elements of a cause of action, supported by mere conclusory statements, do not suffice[]” to
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`Case 8:22-cv-02286-JMC Document 19 Filed 03/24/23 Page 4 of 11
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`plead a claim). Second, a complaint shall be dismissed if it does not allege a “plausible claim for
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`relief . . . .” Id. at 679. “A claim has facial plausibility when the pleaded factual content allows
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`the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
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`Id. at 663 (other citation omitted). In determining whether a plaintiff has stated a plausible claim
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`for relief, a court must “draw on its judicial experience and common sense.” Id. at 679 (other
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`citation omitted).
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`“As a general rule, the court does not consider extrinsic evidence at the motion to dismiss
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`stage . . . .” Reamer v. State Auto. Mut. Ins. Co., 556 F. Supp. 3d 544, 549 (D. Md. 2021) (other
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`citation omitted). However, “the court may consider, without converting the motion to dismiss
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`into one for summary judgment, documents attached to the complaint as exhibits, and documents
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`attached to a motion to dismiss if the document is ‘integral to the complaint and there is no dispute
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`about the document’s authenticity.’” Id. (quoting Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159,
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`166 (4th Cir. 2016)). “A document is ‘integral’ to the complaint if its ‘very existence, and not the
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`mere information it contains, gives rise to the legal rights asserted.’” Reamer, 556 F. Supp. 3d at
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`59 (citing Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602,
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`611 (D. Md. 2011)).
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`Defendant styles its Motion as a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or, in the
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`alternative, for summary judgment under Fed. R. Civ. P. 56. “A motion styled in this manner
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`implicates the court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure.” Pevia
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`v. Hogan, 443 F. Supp. 3d 612, 625 (D. Md. 2020). The Court has “complete discretion to
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`determine whether or not to accept the submission of any material beyond the pleadings that is
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`offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion,
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`or to reject it or simply not consider it.” Id. at 626 (other citation omitted). “Ordinarily, summary
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`Case 8:22-cv-02286-JMC Document 19 Filed 03/24/23 Page 5 of 11
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`judgment is inappropriate where the parties have not had an opportunity for reasonable discovery.”
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`Id. (other citations and internal quotation marks omitted). “To raise adequately the issue that
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`discovery is needed, the nonmovant typically must file an affidavit or declaration pursuant to Rule
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`56(d) . . . explaining why, for specified reasons, it cannot present facts essential to justify its
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`opposition, without needed discovery.” Id. (other citations and internal quotation marks omitted).
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`Based on the fact-intensive nature of Plaintiff’s claims, and Plaintiff’s affidavit asserting
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`the need for discovery (ECF No. 13)5, the Court will decline to consider any evidence outside of
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`Plaintiff’s Complaint when determining the 12(b)(6) portion of Defendant’s Motion.
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`III. Analysis
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`A. Defendant’s Rule 12(b)(6) Motion to Dismiss
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`Plaintiff is entitled to pursue discovery to identify the owner of the website at issue.
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`Defendant’s sole argument is that Defendant “does not . . . own the Website, nor does it administer,
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`maintain, or operate the Website, nor is it responsible for the content included on the Website.”
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`(ECF No. 10 at p. 2, ¶ 3 (citing ECF No. 10-1)). Rather, Defendant asserts that Anabon Security
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`Inc. (“Anabon Inc.”), “is responsible for the content on the Website.” (ECF No. 10 at p. 2, ¶ 4
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`(citing ECF No. 10-2)). Defendant’s Motion relies on two declarations: (1) the Declaration of
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`Defendant’s President, Mahdi Nahavandian (ECF No. 10-1), and (2) the Declaration of Anabon
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`Inc.’s President, Alireza Ghandchi (ECF No. 10-2). However, as stated above, the Court will not
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`consider extrinsic evidence outside the pleadings and convert Defendant’s Motion into one for
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`summary judgment. Therefore, because Plaintiff has adequately alleged that Defendant owns the
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`website, Defendant’s argument must fail.
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`5 Plaintiff’s counsel, Mr. Craig B. Sanders, sets forth Plaintiff’s understanding regarding ownership of the website.
`Specifically, as will be further elaborated upon in this Memorandum Opinion, Mr. Sanders indicates that the registrant
`information for the website has changed since the filing of Plaintiff’s lawsuit. (ECF No. 13 at p. 2, ¶ 4). Mr. Sanders
`asserts that information regarding the identity of the website owner is essential to Plaintiff’s case. See id. at p. 2, ¶ 7.
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`Case 8:22-cv-02286-JMC Document 19 Filed 03/24/23 Page 6 of 11
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`In its Reply, Defendant heavily relies on a prior opinion of this Court: Taccino v. Ford
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`Motor Co., No. GLR-18-913, 2019 WL 1429263 (D. Md. Mar. 29, 2019), aff’d, 789 F. App’x 373
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`(4th Cir. 2020). Defendant argues that the defendant’s motion to dismiss the complaint in Taccino
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`was granted because the allegations in the complaint therein were “clearly directed at an entirely
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`separate and independent entity.” (ECF No. 14 at p. 2 (citing Taccino, 2019 WL 1429263 at *5–
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`*6)). However, Defendant’s reliance on Taccino is misplaced. Taccino involved twelve motions,
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`only one of which is relevant to the case sub judice: “[d]efendant Ford Motor Co.’s (“Ford Motor”)
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`Motion to dismiss Plaintiff’s Complaint . . . .” Taccino, 2019 WL 1429263 at *1. In that motion,
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`Ford Motor argued that the Court should dismiss the plaintiff’s claims because Ford Motor was
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`the wrong party against whom to bring the lawsuit. Id. at *5. The Court agreed with Ford Motor.
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`However, the Court reached its conclusion by considering only the complaint and exhibits attached
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`thereto. Id. (“Based on the facts alleged in the [c]omplaint and the [c]omplaint’s exhibits, the
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`Court concludes that the [plaintiffs] have sued the wrong party.”). In fact, the Court in Taccino
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`noted that “[t]he general rule is that a court may not consider extrinsic evidence when resolving a
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`Rule 12(b)(6) motion.” Id. at *6, n. 76 (other citation omitted). Defendant requests the Court to
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`do something that the Court refused to do in Taccino: impermissibly consider extrinsic evidence
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`beyond the Complaint and its attachments while considering a motion to dismiss. The Court will
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`not do this. Unlike the complaint and accompanying exhibits in Taccino, the Complaint and
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`accompanying exhibits in the case sub judice do not clearly indicate that Plaintiff has brought suit
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`against the wrong defendant.
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`6 The Court also noted the exceptions to this rule: “A court may, however, consider documents attached to the
`complaint, . . . as well as those attached to the motion to dismiss as long as they are integral to the complaint and
`authentic, . . . when assessing a 12(b)(6) motion.” Id.
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`Case 8:22-cv-02286-JMC Document 19 Filed 03/24/23 Page 7 of 11
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`Turning to Plaintiff’s sole count in the Complaint, Direct Copyright Infringement pursuant
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`to 17 U.S.C. § 501 et seq. (“the Act”), the Court recognizes Plaintiff’s Complaint as one that has
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`sufficiently pleaded such a claim. “Under the Act, ‘[a]nyone who violates any of the exclusive
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`rights of the copyright owner . . . is an infringer of the copyright.’” Zuffa, LLC v. Ferrell, No.
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`8:20-cv-0273-PX, 2021 WL 2315458, *3 (D. Md. June 7, 2021) (quoting 17 U.S.C. 501)).
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`The Copyright Act grants the copyright holder ‘exclusive’ rights to use and to
`authorize the use of his work in five qualified ways, namely, (1) to reproduce the
`work, (2) to prepare derivative works, (3) to distribute copies of the work to the
`public, (4) to perform the work publicly, and (5) to display the work publicly.
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`Oppenheimer v. Morgan, 1:19-cv-00002-MR, 2019 WL 2617080, at *2 (W.D.N.C. June 26, 2019)
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`(other citations and internal quotation marks omitted). “For a copyright infringement claim, a
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`plaintiff must show: (1) ownership of a valid copyright; and (2) encroachment upon one of the
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`exclusive rights afforded by the copyright.” Zuffa, 2021 WL 2315458 at *3 (citing Avtec Sys., Inc.
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`v. Peiffer, 21 F. 3d 568, 571 (4th Cir. 1994)).
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`Here, Plaintiff has sufficiently pleaded that he owns a valid copyright in the Photograph,
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`and Plaintiff has sufficiently pleaded that Defendant encroached upon at least one of Plaintiff’s
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`exclusive rights afforded by the copyright. Defendant has not challenged the sufficiency of the
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`allegations beyond whether Defendant is the proper defendant. Accordingly, the Court will deny
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`Defendant’s Motion.
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`The Court’s conclusion would have been the same even if the Court exercised its discretion
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`and converted Defendant’s Motion into one for summary judgment. Moving for “summary
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`judgment before discovery forces the nonmoving party into a fencing match without a sword or
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`mask.” Callender v. Callender, No. TDC-15-4015, 2016 WL 3647613, at *6 (D. Md. June 30,
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`2016) (quoting McCray v. Dep’t of Transp., Md. Transit Admin., 741 F.3d 480, 483 (4th Cir.
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`2014)). “Consequently, summary judgment [must] be denied when the nonmovant has not had the
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`Case 8:22-cv-02286-JMC Document 19 Filed 03/24/23 Page 8 of 11
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`opportunity to discover information that is essential to his opposition.” Callender, 2016 WL
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`3647613, at *6 (other citation and internal quotation marks omitted). “The proper procedure for
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`seeking additional time for discovery is to file an affidavit pursuant to Federal Rule of Civil
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`Procedure 56(d) explaining why, for specified reasons, the party needs discovery to oppose a
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`summary judgment motion.” Id. (citing Fed. R. Civ. P. 56(d); Harrods Ltd. v. Sixty Internet
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`Domain Names, 302 F.3d 214, 244 (4th Cir. 2002)) (internal quotation marks omitted). Here,
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`Plaintiff has invoked Fed. R. Civ. P. 56(d), and Plaintiff’s counsel has established that Plaintiff has
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`yet to have an opportunity to discover information essential to opposing Defendant’s Motion if the
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`Court construes it as a motion for summary judgment. (ECF No. 12 at p. 7).
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`Furthermore, had the Court considered Defendant’s proffered affidavits, and had Plaintiff
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`not motioned for additional discovery, the Court’s conclusion would still have been the same. Fed.
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`R. Civ. P. 56(a) requires the Court to “grant summary judgment if the movant shows that there is
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`no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
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`law.” The court is “required to view the facts and draw reasonable inferences in the light most
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`favorable to” the nonmoving party. Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008) (citing Scott
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`v. Harris, 550 U.S. 372, 377 (2007)).
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`In his Opposition, Plaintiff sets forth facts indicating that the ownership of the website—a
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`fact clearly material to this case—is still potentially in dispute. At the time Plaintiff discovered
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`that Defendant was using the Photograph on the website, the domain registrant contact for the
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`website was reported to be in Maryland, and the server was listed as SiteGround.com. (ECF No.
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`12 at p. 6 (referring to ECF No. 13 at p. 1, ¶ 2)). Per the information provided on the website, the
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`owner of the website had “two (2) physical headquarters: (1) Anabon USA, located at 12345
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`Parklawn Drive, Suite R22 Rockville, MD. 20852; and (2) Anabon Canada, located at 175 West
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`Beaver Creek Road, Unit 32, Richmond Hill, ON L4B 3M1.” (ECF No. 13 at p. 1–2, ¶ 3). The
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`Maryland address is Defendant’s last known business address. (ECF No. 12 at p. 6). An updated
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`Whois report7 indicates a change in the domain registrant to GoDaddy’s Domains by Proxy, LLC
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`Service (“proxy service”). (ECF No. 13 at p. 2, ¶ 4). The proxy service is a private registration
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`service offered by GoDaddy whereby the actual owner’s identity is shielded and replaced by that
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`of a proxy holder. (ECF No. 6 at p. 2) The updated Whois report now shows cloudflare.com listed
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`as the new web hosting service. (ECF No. 13 at p. 2, ¶ 4; ECF No. 6 at p. 2). Plaintiff maintains
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`that Defendant changed the registrant information for the website to a proxy registrant following
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`the commencement of the case sub judice. (ECF No. 13 at p. 2, ¶ 4). Following the
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`commencement of Plaintiff’s case, Defendant contacted Plaintiff to indicate that Defendant had
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`“no affiliation with the website and that the Website is owned and operated by Anabon Canada, a
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`purportedly separate and distinct entity from the current Defendant.” Id. at p. 2, ¶ 5. Viewing the
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`minimal evidence currently before the Court in the light most favorable to Plaintiff, there is
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`information supporting an association between Defendant and the website at the time of the
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`infringement; there is information indicating that steps were taken to shield the website’s
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`ownership (such that it now cannot be verified absent subpoena); and there is information provided
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`by Defendant to Plaintiff that another entity, “Anabon Canada,” which may or may not be the same
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`as “Anabon, Inc.,” is the responsible party. This suggests at this juncture a genuine dispute about
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`the material fact of the website’s owner at the time of the infringement.
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`7 “A Whois domain lookup allows you to trace the ownership and tenure of a domain name.” What Is a Whois Domain
`Lookup?, FAQ to Whois Domain Lookup,WHOIS IDENTIY FOR EVERYONE, HTTPS://WWW.WHOIS.COM/WHOIS/ (last
`visited March 20, 2023). “Similar to how all houses are registered with a governing authority, all domain name
`registries maintain a record of information about every domain name purchased through them, along with who owns
`it, and the date till which it has been purchased.” Id.
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`B. Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Fed. R. Civ.
`P. Rule 26(f) Conference
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`Plaintiff’s Motion for permission to seek third party discovery via subpoena on this
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`ownership issue is technically moot in light of the forthcoming scheduling order and initiation of
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`discovery. Plaintiff filed his Motion on November 1, 2022, because “Defendant has not yet
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`appeared in this action [and] it is unclear when a Rule 26(f) conference will take place . . . .” Id.
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`However, Fed. R. Civ. P. 26(f) provides:
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`Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or
`when the court orders otherwise, the parties must confer as soon as practicable—
`and in any event, at least 21 days before a scheduling conference is to be held or a
`scheduling order is due under Rule 16(b).
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`Furthermore, Fed. R. Civ. P. 16(b) provides:
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`Except in categories of actions exempted by local rule, the district judge—or a
`magistrate judge when authorized by local rule—must issue a scheduling order . . .
`after receiving the parties’ report under Rule 26(f) . . . .
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`As such, this Court’s Local Rule 103.9(b) provides in relevant part:
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`All actions except ones which the presiding judge notifies the parties that he or she
`designates to be complex, e.g., antitrust, mass tort, patent infringement, RICO, and
`securities fraud actions in which all parties are represented by counsel, are
`exempted from the requirement of Fed. R. Civ. P. 16(b) that the Court consult with
`counsel (or unrepresented parties) or await a report from the parties under Fed. R.
`Civ. P. 26(f) before entering a scheduling order.
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`Defendant appeared in this case after Plaintiff filed his Motion. Furthermore, as the Court
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`will deny Defendant’s Motion, Defendant must file a responsive pleading to the Complaint by
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`April 4, 2023.8 On the day Defendant files its Answer, the Court will issue a proposed—and
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`adequately tailored—scheduling order. Considering the imminence of a scheduling order in this
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`8 “Unless the court sets a different time, serving a motion under [Fed. R. Civ. P. 12] alters these periods as follows: if
`the court denies the motion . . . the responsive pleading must be served within 14 days after notice of the court’s action
`. . . .” Fed. R. Civ. P. 12(a)(4)(A).
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`case, the Court finds it unnecessary to permit Plaintiff to conduct the third-party discovery prior
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`to that. Therefore, the Court will deny Plaintiff’s Motion.
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`Lastly, the Court understands Defendant’s concern regarding the equitability and justice of
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`requiring Defendant to defend itself in a suit in which Defendant may or may not be the proper
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`Defendant. Therefore, when the Court issues its initial scheduling order, it will provide for a period
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`dedicated to discovery regarding the sole issue of website ownership, i.e., discovery will be limited
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`to Plaintiff serving the third party-subpoenas outlined in Plaintiff’s Motion, as well as narrow
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`depositions of Defendant’s and Anabon Inc.’s affiants on the concise issue of website ownership
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`at relevant times and, as necessary, the relationship between the two entities. Following this brief
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`period of narrowed discovery, the parties will meet and confer regarding the status of this case.
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`Afterwards, if disagreement still exists concerning the owner of the website during the period
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`relevant to Plaintiff’s case, Defendant shall be permitted to renew its motion for summary
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`judgment premised on its lack of ownership.
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`IV. Conclusion
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`For the foregoing reasons, Defendant’s Motion to Dismiss, or, in the Alternative for
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`Summary Judgment (ECF No. 10), treated as a motion to dismiss, is DENIED without prejudice
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`as to Defendant’s ability to file a renewed motion for summary judgment at a time which the Court
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`will determine in the forthcoming scheduling order. Furthermore, Plaintiff’s Motion for Leave to
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`Serve Third Party Subpoenas Prior to a Rule 26(f) Conference (ECF No. 5) is DENIED as moot,
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`and the parties’ Consent Motion for Extension (ECF No. 11) is GRANTED. A separate order
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`follows.
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`11
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