Yesterday Judge Robert S. Lasnik granted a motion to dismiss the case Elf-Man v. Does 1-152 (WAWD 13-cv-00507 ). This motion was filed on 10/30/2013 by Michael P. Matesky on behalf of three named defendants. The parties presented their oral arguments in front of the judge on 1/15/2014; even though I was not there, I can imagine the judge’s attitude towards the troll by merely looking at the order (embedded below).

Why did I say that it is a big news? The reason is that federal judges don’t often rule that a trolls’ pleading falls short of the threshold set by the Supreme Court of the Unites States in Bell Atlantic v. Twombly in 2007 and Ashcroft v. Iqbal in 2009. The only other order I’m aware of was issued in a CASD Prenda case a year ago: Judge Moskowitz dismissed the case for a similar reason.

I know lawyers immediately realize the significance of this event, but those who don’t know the history of pleading standards should read numerous legal articles, written in many languages — from Legalese to plain English.

In short, prior to those pivotal rulings, pleading standards were much more liberal: plaintiffs were only required to literally follow the Rule 8 of the Federal Rules of Civil Procedure, i.e. to only include “a short and plain statement of the claim showing that the pleader is entitled to relief.”

After the Twombly/Ashcroft rulings, the requirements were tightened:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”

According to Judge Lasnik, the main defect of the complaint is that the plaintiff conflates an ISP subscriber with an infringer, a common troll’s modus operandi that was thoroughly addressed in Massachusetts last year. Also, the plaintiff’s attorney Maureen VanderMay tried to argue negligence, which is laughable: the negligence liability tugboat sank a long time ago.

Pursuant to plaintiff’s allegations, a particular defendant may have directly and intentionally stolen plaintiff’s copyrighted material, or she may simply have “facilitated” unauthorized copying by purchasing an internet connection which an unidentified third party utilized to download “Elf-Man.” Plaintiff provides no factual allegations that make one scenario more likely than the other: both are merely possible given the alternative allegations of the complaint. Plaintiff argues that such alternative pleading is permissible under Fed. R. Civ. P. 8(d)(2) and that “[i]f a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.” The critical defect in this case is not the alternative pleading of claims of direct, contributory, and indirect infringement. Rather, the problem arises from the alternative pleading of the facts that are supposed to support those claims. The effect of the two “or” conjunctions means that plaintiff has actually alleged no more than that the named defendants purchased internet access and failed to ensure that others did not use that access to download copyrighted material. For the reasons set forth below, these facts do not support any of the alternative claims asserted. Rule 8(d)(2) does not, therefore, save plaintiff’s complaint.

If the above quote sounds a bit cryptic, here is Mike Matesky’s explanation:

Judge Lasnik had issued a veiled warning last August (before the plaintiff had named specific defendants) that he questioned whether there was a Rule 11 basis to allege that a subscriber engaged in the infringement, simply because they are named as the subscriber. To get around the risk of Rule 11 sanctions, the plaintiff’s attorneys filed an amended complaint carefully structured to avoid unequivocally alleging that the defendant actually shared the movie. Rather, they alleged that the defendant shared the movie (thereby committing direct and contributory infringement) and/or they signed up for an account and failed to prevent direct infringement from occurring (thereby committing an unspecified “indirect infringement” that plaintiff argued was a new form of liability that should be recognized). That equivocal pleading left them particularly vulnerable to a motion to dismiss. However, the order could potentially apply to standard bittorent complaints if they don’t allege facts making it reasonable to infer that the subscriber/defendant was personally involved in the sharing of the movie.

This is yet another nail (and a pretty sharp one) in the coffin of copyright trolling.

Granting the motion to dismiss, the judge ordered the plaintiff to amend its complaint to present plausible facts, yet he is doubtful that VanderMay / Elf-Man will be able to come up with any:

Given the procedural posture of this case, it is doubtful that plaintiff has facts to support the allegations of personal involvement and/or intent on which its claims rely. Nevertheless, it may have additional information regarding individual defendants that would provide the necessary heft to its factual allegations and should be given an opportunity to remedy the deficiencies identified by the Court. Plaintiff shall, therefore, have fourteen days from the date of this Order to file a Second Amended Complaint that pleads factual content that allows the Court to draw the reasonable inference that the named defendants are liable for the misconduct alleged. Failure to file a timely and adequate pleading will result in the entry of judgment against plaintiff and in favor of defendants.

Such judgment means attorney fees. I have little doubt that an inevitable defendants’ motion for fees won’t be granted.

Elf-Man/VanderMay’s cases are interesting for other reasons too. Make sure to read a recent DieTrollDie’s post.

Thanks to other lawyers who represented defendants on this case: John Whitaker, Benjamin Justus and others.

Media coverage