Case 8:12-cv-01294-PWG Document 76 Filed 04/28/14 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
`Southern Division
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`PATRICK COLLINS, INC., d/b/a
` ELEGANT ANGEL,
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`Plaintiff,
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`v.
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`DAVID OSBURN,
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`Case No.: PWG-12-1294
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`Defendant.
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`MEMORANDUM OPINION
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`I. BACKGROUND
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`Plaintiff Patrick Collins, Inc., d/b/a Elegant Angel (“Collins”) is a California corporation
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`that produces and owns the copyright in pornographic films. Compl. ¶¶ 6–8, ECF No. 1. On
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`April 27, 2012, Plaintiff filed a complaint in this Court against sixty-seven unnamed defendants
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`alleging that they had infringed the copyright in one of Plaintiff’s films by downloading copies
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`by means of torrent files over peer-to-peer networks. Id. ¶¶ 9–10. Defendant David Osburn
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`originally was identified as Doe 1 associated with the Internet Protocol (“IP”) address
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`108.15.17.74. See Am. Compl. ¶ 5, ECF No. 9; Infringement Table, Compl. Ex. A, ECF No. 1-
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`2.
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`Osburn has contested this litigation aggressively from the start. After receiving notice
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`that Collins had subpoenaed records from his Internet Service Provider (“ISP”), Osburn filed a
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`Motion to Quash taking the position that the mere fact that material was downloaded at his IP
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`address does not mean that Osburn himself infringed any copyrights. Mot. to Quash 2, ECF No.
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`Case 8:12-cv-01294-PWG Document 76 Filed 04/28/14 Page 2 of 10
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`6. That motion was denied. Order, ECF No. 8. In addition to his answer, Osburn initially filed a
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`counterclaim asserting a count for misuse of copyright as well as seeking declaratory judgment
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`in his own favor, Ans., ECF No. 15, although the counterclaims later were withdrawn, see
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`Stipulated Scheduling Order, ECF No. 58, and an answer was filed that did not assert any
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`counterclaims, Answer, ECF No. 60. On February 26, 2013, Osburn filed a consent motion to
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`unseal this case, making his identity as a Defendant a matter of public record, Def.’s Mot. to
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`Unseal File, ECF No. 42, and subsequently he has filed several additional motions, see, e.g.,
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`Def.’s Mot. for Default J. or Summ. J., ECF No. 46; Def.’s Mot. for Entry of Protective Order,
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`ECF No. 54.
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`According to the parties’ status report, filed December 12, 2013, discovery was
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`concluded by December 5, 2013. Plaintiff does not appear to have taken any discovery from
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`Defendant with the possible exception of having an expert visit Defendant’s home. Status
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`Report 3, ECF No. 67. From the record before me, it appears that Plaintiff did not make any
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`Fed. R. Civ. P. 26(a)(2) expert disclosures, propound any interrogatories or requests for
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`production, or take any depositions. Id. at 4–5. In contrast, Defendant retained an expert who
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`prepared a written report, propounded “multiple interrogatories and requests for production of
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`documents,” and took three depositions. Id.
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`On December 11, 2013, Collins filed a Motion to Dismiss Pursuant to Fed. R. Civ. P.
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`41(a)(2), essentially stating that it had been unable to reach a settlement with Osburn and simply
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`wished to let this case drop. Pl.’s Mot. to Dismiss, ECF No. 65. Osburn has opposed the Motion
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`to Dismiss, Def.’s Dismiss Opp’n, ECF No. 68, and has filed a Motion for Summary Judgment
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`Case 8:12-cv-01294-PWG Document 76 Filed 04/28/14 Page 3 of 10
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`in Favor of Defendant, ECF No. 69,1 with an accompanying memorandum (“Def.’s Summ. J.
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`Mem.”), ECF No. 69-1, alleging that Collins lacks any evidence showing that Osburn infringed
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`any copyrights, that Collins has proceeded in bad faith, and therefore that Osburn is entitled to
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`judgment in his favor as well as recovery of the substantial legal fees he has incurred, Def.’s
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`Summ. J. Mem. Both motions are ripe. Although Osburn has requested oral argument on the
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`pending motions, Def.’s Mot. for Oral Argument, ECF No. 73, I have reviewed the filings and
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`find that a hearing is not necessary, Loc. R. 105.6. Accordingly, Defendant’s Motion for Oral
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`Argument is DENIED.
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`II.
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`STANDARD OF REVIEW
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`Rule 41(a)(2) provides that, after the opposing party has served an answer or motion for
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`summary judgment, “an action may be dismissed at the plaintiff’s request only by court order, on
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`terms that the court considers proper,” and that, “[u]nless the order states otherwise, a dismissal
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`under this paragraph (2) is without prejudice.” Fed. R. Civ. P. 41(a)(2). “The purpose of this rule
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`is ‘to allow voluntary dismissals unless the parties will be unfairly prejudiced.’” Redding v.
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`Ameriprise Auto & Home Ins., No. DKC-11-3141, 2012 WL 1268327, at *3 (D. Md. Apr. 13,
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`2012) (quoting Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987) (citations omitted)).
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`The factors this Court considers in ruling on a Rule 41(a) motion include “‘the opposing party’s
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`effort and expense in preparing for trial, excessive delay and lack of diligence on the part of the
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`movant, and insufficient explanation of the need for a voluntary dismissal,’ as well as ‘the
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`present stage of litigation.’” Miller v. Terramite Corp., 114 F. App’x 536, 539 (4th Cir. 2004)
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`1
`Osburn initially filed his Motion for Summary Judgment on December 12, 2013, ECF
`No. 66. He then filed a motion that has been docketed as a “Corrected Motion for Summary
`Judgment” on December 14, 2013, ECF No. 69. The two motions appear substantively identical,
`and Collins has responded only to the corrected motion. Accordingly, I will summarily DENY
`the original Motion for Summary Judgment docketed at ECF No. 66 as erroneously filed and will
`consider only the corrected motion docketed at ECF No. 69.
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`Case 8:12-cv-01294-PWG Document 76 Filed 04/28/14 Page 4 of 10
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`(quoting Phillips USA, Inc., v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996) (internal
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`citations and quotation marks omitted)).
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`Summary judgment is proper when the moving party demonstrates, through “particular
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`parts of materials in the record, including depositions, documents, electronically stored
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`information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
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`other materials,” that “there is no genuine dispute as to any material fact and the movant is
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`entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c)(1)(A); see Baldwin v. City of
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`Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary judgment
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`demonstrates that there is no evidence to support the nonmoving party’s case, the burden shifts to
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`the nonmoving party to identify evidence that shows that a genuine dispute exists as to material
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`facts. See Celotex v. Catrett, 477 U.S. 317 (1986). The existence of only a “scintilla of
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`evidence” is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby,
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`Inc., 477 U.S. 242, 251 (1986). Instead, the evidentiary materials submitted must show facts
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`from which the finder of fact reasonably could find for the party opposing summary judgment.
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`Id. “[U]nder Fed. R. Civ. P. 56, as amended in 2010, facts in support of or opposition to a
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`motion for summary judgment need not be in admissible form; the requirement is that the party
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`identify facts that could be put in admissible form.” Mallik v. Sebelius, 964 F. Supp. 2d 531, 546
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`(D. Md. 2013) (citing Niagara Transformer Corp. v. Baldwin Techs., Inc., No. DKC-11-3415,
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`2013 WL 2919705, at *1 n.1 (D. Md. June 12, 2013)).
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`III. DISCUSSION
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`A. Plaintiff’s Motion to Dismiss
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`In its Motion to Dismiss Pursuant to Fed. R. Civ. P. 41(a)(2), Collins states that although
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`it “believes sufficient evidence exists of Defendant’s copying and/or allowing someone to use
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`Case 8:12-cv-01294-PWG Document 76 Filed 04/28/14 Page 5 of 10
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`Defendant’s Internet account to make an unauthorized copy of Plaintiff’s movie, Plaintiff is
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`willing to accept dismissal with prejudice, with each party bearing its own costs and attorney
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`fees.” Pl.’s Mot. to Dismiss ¶ 2. According to Collins, its evidence shows that a user located at
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`Osburn’s IP address downloaded a copy of the film in question. Id. Collins states that it
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`“offered to settle this matter by [] a complete dismissal with prejudice. Defendant flat-out
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`refused to agree to a dismissal and since then has engaged in no discussion whatsoever
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`regarding terms he desired to resolve this case.” Id. ¶ 1 (emphasis in original). However,
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`“Plaintiff has determined that the cost of going forward may not justify the damages that might
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`be awarded,” id. ¶ 6, and therefore simply wishes to “‘walk away’ with prejudice, with each
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`party bearing its own costs and attorney fees,” id. ¶ 5.
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`Osburn has opposed the motion to dismiss, taking a much different view of the facts and
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`claiming that “[t]his litigation was initiated by Plaintiff without a scintilla of evidence against
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`Defendant himself,” and that the only evidence was that “someone using Defendant’s router”
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`downloaded the film in question. Def.’s Dismiss Opp’n 1. According to Osburn, the lack of
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`good faith on Collins’s part is apparent because “Plaintiff did not serve a single interrogatory,
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`request for production of documents, or request for admissions, Plaintiff did not take a single
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`deposition of anyone,” and “Plaintiff never even filed or served an expert report” in response to
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`one prepared by Plaintiff’s expert. Id. at 2.
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`The crux of Osburn’s opposition, however, appears to be his position that:
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`As a testament to his innocence, David Osburn refused to buckle under the
`extortive effect of the threat of identifying him as a defendant in a law suit by a
`pornographic film company and instead retained counsel to defend himself. The
`cost of doing so was more than the original demand for settlement, but the loss of
`principle if he paid the settlement demand was unacceptable to Mr. Osburn.
`Now, after putting Mr. Oburn through the emotional and financial strain of
`defending himself since the suit was filed in April, 2012, over a year and a half
`ago, Plaintiff wants a free pass—no costs and no attorney fees.
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`Case 8:12-cv-01294-PWG Document 76 Filed 04/28/14 Page 6 of 10
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`Id. at 3. And although Osburn acknowledges that he received a proposed settlement in August
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`2013, he protests that was not a serious offer because it did not provide any compensation for
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`Osburn’s attorney fees, did not conclusively establish Osburn’s lack of liability, and included “an
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`unjustified release of Plaintiff and a restrictive confidentiality provision.” Id. at 7.
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`Although it is apparent that there is considerable animosity between the parties, I find no
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`merit to Osburn’s assertions that Collins has pursued this litigation in bad faith. Collins filed and
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`served a complaint against Osburn because it determined that a copy of one of its films had been
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`downloaded by a computer located at the IP address 108.15.17.74, Am. Compl. Ex. A, ECF No.
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`9-1, and that that IP address belonged to Osburn, Am. Compl. ¶ 5, facts that Osburn does not
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`deny, see, e.g., Def.’s Dismiss Opp’n 6. Osburn correctly has noted that this evidence is not
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`conclusive proof that “Defendant did such downloading, was aware that anyone was
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`downloading using his router, or has any idea who did the downloading even now.” Def.’s
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`Dismiss Opp’n 1. But the Federal Rules of Civil Procedure do not hold pleadings to such an
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`impossibly high standard; plausibility—not conclusiveness—is the standard. A complaint is
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`supported properly if “the factual contentions have evidentiary support or, if specifically so
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`identified, will likely have evidentiary support after a reasonable opportunity for further
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`investigation or discovery.” Fed. R. Civ. P. 11(b)(3). This requirement “‘is not intended to chill
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`an attorney’s enthusiasm or creativity in pursuing factual or legal theories,’” but merely requires
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`that there be “some basis in law to support the claims in the complaint.” Brubaker v. City of
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`Richmond, 943 F.2d 1363, 1373 (4th Cir. 1991). Osburn would elevate the pleading standard for
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`stating a claim to such an exalted level that very few cases would be able to meet it without
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`extensive pre-filing discovery.
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`Case 8:12-cv-01294-PWG Document 76 Filed 04/28/14 Page 7 of 10
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`Plaintiff’s counsel has appended to the Amended Complaint a certification reciting the
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`details of the investigation that was undertaken on Collins’s behalf, Am. Compl. 10–12. And it
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`takes no great imagination to see how evidence that a file was downloaded by a certain IP
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`address could support a plausible claim that the file was downloaded by the subscriber at that IP
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`address. Cf. Fed. R. Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact
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`more or less probable . . . .”). Thus it was not improper for Collins to initiate and pursue this suit
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`against Osburn.
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`Osburn also emphasizes the inherently coercive potential of copyright suits alleging
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`wrongful downloads of pornographic materials. Def.’s Dismiss Opp’n 2–3 (quoting Ingenuity 13
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`LLC v. John Doe, No. 2:12-cv-833-ODW(JCx) (C.D. Cal. May 6, 2013)). Indeed, this Court has
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`recognized the dangers that may attach to such suits and has been active in crafting ways to
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`protect the rights of defendants in Osburn’s unenviable position. See, e.g., Malibu Media v. Doe,
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`No. JKB-13-3659, 2013 WL 6629042 (D. Md. Dec. 16, 2013) (imposing procedural protections
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`for unnamed defendant and barring copyright plaintiff from initiating settlement negotiations
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`with unrepresented defendants to prevent coercion). But Osburn has not presented any evidence
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`of improper coercion in this case other than the mere fact of the suit itself. Having voluntarily
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`emerged from the anonymity of a sealed complaint, Def.’s Mot. to Unseal, Osburn cannot now
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`claim that Collins was acting for an improper purpose based on “the threat of identifying him as
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`a defendant in a law suit by a pornographic film company.” Def.’s Dismiss Opp’n 3. And
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`notwithstanding the multiple adjectives used to characterize Collins’s proposed, “complex,
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`draconian, plaintiff-oriented proposed settlement agreement,” Def.’s Dismiss Opp’n 7, it is
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`undeniable that Collins offered to dismiss this case without any payments by Osburn, and the
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`clauses to which Osburn so vociferously objects—a confidentiality provision, a mutual release,
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`Case 8:12-cv-01294-PWG Document 76 Filed 04/28/14 Page 8 of 10
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`and a provision for each party to bear its own fees and costs—are not unusual in settlement
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`agreements. See Proposed Settlement Agreement, Def.’s Dismiss Opp’n Ex. 6, ECF No. 68-6.
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`Moreover, when it became clear that Osburn neither would agree to the Proposed Settlement
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`Agreement, nor propose an alternative acceptable to Collins, it filed this motion to dismiss with
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`prejudice rather than attempt to extract concessions from Osburn. Again, this shows no bad faith
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`or impropriety by Collins.
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`But the crux of Osburn’s opposition is his view that allowing Collins to walk away
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`without compensating Osburn for his attorney’s fees “would be the height of unfair disposition
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`by the Court and Defendant.” Def.’s Dismiss Opp’n 3. When a dismissal is without prejudice,
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`the Court may impose conditions, such as the movant’s payment of the opposing party’s fees and
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`costs. See Fed. R. Civ. P. 41(a)(2). Indeed, costs “should be imposed as a matter of course in
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`most cases” when dismissal is without prejudice. See Davis v. USX Corp., 819 F.2d 1270, 1276
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`(4th Cir. 1987). But “[o]rdinarily, where a motion for voluntary dismissal is granted with
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`prejudice, an award of attorneys’ fees is not appropriate because there is no risk that the
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`defendant can ‘be called upon again to defend’ and thus no risk of ‘any duplication of expense.’”
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`C-Tech Corp. v. Aversion Techs., No. DKC-11-983, 2012 WL 3962508, at *8 (D. Md. Sept. 7,
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`2012) (quoting Lawrence v. Fuld, 32 F.R.D. 329, 331 (D. Md. 1963)) (emphasis added). The
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`“two exceptions to this general principle” are “(1) where the case involves ‘exceptional
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`circumstances’ and (2) where ‘there is independent statutory authority for such an award.’” Id.
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`(quoting 9 Wright & Miller § 2366 (internal quotation marks and citations omitted)). For
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`example, circumstances would be exceptional if the “‘plaintiff’s suit was . . . unnecessary,
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`groundless, vexatious and oppressive . . . .’” Nat’l Satellite, 2000 WL 1717304, at *2 (quoting
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`Lawrence, 32 F.R.D. at 332–33).
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`Case 8:12-cv-01294-PWG Document 76 Filed 04/28/14 Page 9 of 10
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`I already have found that this suit was not brought in bad faith. But Osburn argues that
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`the fact that Collins did not take any discovery shows that it was not seriously pursuing its case
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`while forcing Osburn “to expend large sums of money for attorney fees, attorney time, and travel
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`expenses for depositions, and for preparing and filing pleadings, motions, oppositions, and other
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`filings to defend himself, including defense counsel traveling to Rhode Island and California to
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`take depositions.” Id. at 2–3.
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`It is not apparent from the record that Osburn was required to respond to Collins’s
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`relative inactivity by conducting multiple depositions 2,500 miles apart, retaining an expert and
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`commissioning a full expert report, and drafting “multiple interrogatories and requests for
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`production of documents,” Status Report 4–5, and more economical alternatives, such as
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`telephone depositions, were available. Although it appears that Osburn was responding
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`forcefully to allegations that he considered personally offensive, Osburn’s choice to pursue a
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`particularly aggressive defense strategy does not constitute exceptional circumstances sufficient
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`to warrant an attorney’s fees award. See C-Tech Corp., 2012 WL 3962508, at *8; Nat’l Satellite,
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`2000 WL 1717304, at *2. And while the Copyright Act grants me discretion to apportion costs
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`or attorney’s fees under certain circumstances, 17 U.S.C. § 505, I decline to exercise that
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`discretion here. Dismissal will not be conditioned on Collins’s payment of attorney’s fees or
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`costs.
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`“Because district courts ordinarily ‘must’ grant a plaintiff’s request for voluntary
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`dismissal with prejudice and because Defendant[] here [has] not offered any argument that such
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`a dismissal would prejudice [his] rights,” Plaintiff’s Rule 41(a)(2) motion will be GRANTED,
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`and this case will be DISMISSED WITH PREJUDICE. See C-Tech Corp., 2012 WL 3962508,
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`at *3
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`Case 8:12-cv-01294-PWG Document 76 Filed 04/28/14 Page 10 of 10
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`B. Defendant’s Motion for Summary Judgment
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`Also in response to Plaintiff’s Motion to Dismiss, Osburn filed a motion for summary
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`judgment arguing that “[i]n the absence of evidence showing that David Osburn did one of the
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`alleged infringing acts himself or was aware of someone using his router to do it and permitted it,
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`Plaintiff has no case whatsoever.” Def.’s Summ. J. Mem. 2. Accordingly, Osburn seeks not
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`only “attorney fees and expenses pursuant to 17 U.S.C. § 505 and the inherent power of the
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`Court to compensate him for his unfair expenses,” but also judgment in his favor Id. at 4.
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`I already have found that Osburn is not entitled to attorney’s fees. And although it is far
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`from clear that summary judgment would be appropriate in any event—Osburn’s motion appears
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`to focus more on disputing Collins’s factual assertions than demonstrating the lack of any
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`dispute, see Def.’s Summ. J. Mem.—there is no need to address the issue because Osburn’s
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`motion has been mooted by the dismissal of this case, with prejudice.
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`Accordingly, Defendant’s motion for summary judgment will be DENIED as moot.
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`IV. CONCLUSION
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`For the reasons stated herein, Defendant’s Motion for Oral Argument, ECF No. 73, will
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`be DENIED; Plaintiff’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 41(a)(2), ECF No. 65, will
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`be GRANTED; and Defendant’s Motion for Summary Judgment, ECF No. 69, will be DENIED
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`as moot.
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`This case will be DISMISSED WITH PREJUDICE, each party to bear its own costs.
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`A separate order shall issue.
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`Dated: April 25, 2014
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`dsy
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`10
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` /S/
`Paul W. Grimm
`United States District Judge