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Maverick Entertainment Group, Inc v. Does 1 - 2

September 19, 2011

MAVERICK ENTERTAINMENT GROUP, INC.,
PLAINTIFF,
v.
DOES 1 - 2,115,
DEFENDANTS.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

On June 9, 2011, putative defendant Frank Digiovannangelo moved to intervene in this case pursuant to Federal Rule of Civil Procedure 24 in order to quash the subpoena issued by the plaintiff to his Internet Service Provider (hereinafter "ISP"), or, in the alternative, to obtain dismissal from these proceedings. Referencing the Court's Memorandum Opinion dated May 12, 2011, ECF No. 133, the Court denied the Movant's motion by Minute Order on June 17, 2011. On July 8, 2011, the plaintiff moved for sanctions against Mr. Digiovannangelo's counsel, Eric J. Menhart, for "frivolous filings," arguing that the motion to intervene was "nearly identical to numerous similar motions previous [sic] filed by this attorney and denied by this Court." Pl.'s Mot. Sanctions, ECF No. 145, at 2. As explained below, the plaintiff's motion for sanctions is denied. Moreover, the Court takes this opportunity to further clarify the denial of Mr. Digiovannangelo's motion to intervene.

I.BACKGROUND

On April 8, 2010, plaintiff Maverick Entertainment Group, Inc. filed a Complaint against unnamed individuals who allegedly used a file-sharing protocol called BitTorrent to illegally infringe plaintiff's copyrights in thirteen motion pictures: Army of the Dead, Border Town 2009, Buds for Life, Demons at the Door, Holy Hustler, Jack Squad, Smile Pretty (aka Nasty), Stripper Academy, The Casino Job, The Clique (aka Death Clique), Too Saved, Treasure Raiders, and Trunk. Compl. ¶¶ 3, 9, ECF No. 1. The plaintiff subsequently filed an Amended Complaint listing 4,350 putative defendants, who are identified only by their IP addresses. Am. Compl., Aug. 10, 2010, ECF No. 9.*fn1 Given that the defendants in this case were unidentified at the time the plaintiff filed its Complaint, on April 19, 2010, the Court granted the plaintiff leave to subpoena ISPs to obtain identifying information for the putative defendants. Minute Order dated April 19, 2010 (Leon, J.); Order Granting Pl.'s Mot. for Leave to Take Discovery Prior to Rule 26(f) Conference, May 24, 2010, ECF No. 7 (Leon, J.). Specifically, the Court authorized the plaintiff to obtain "information sufficient to identify each Defendant, including name, current (and permanent) addresses, telephone numbers, e-mail addresses, and Media Access Control addresses." Order Granting Pl.'s Mot. for Leave to Take Discovery Prior to Rule 26(f) Conference, May 24, 2010, ECF No. 7 (Leon, J.), at 1. This information was to be "used by the plaintiff solely for the purpose of protecting the plaintiff's rights as set forth in the complaint."

Id. at 2.

Since the Court approved expedited discovery, ISPs have provided identifying information for the putative defendants in response to the plaintiff's subpoenas on a rolling basis. Prior to providing the plaintiff with a putative defendant's identifying information, the ISPs were required to send notices to the putative defendants informing them of their right to challenge release of their information in this Court. See Order Granting Leave to Take Discovery dated May 22, 2010, ECF No. 7 (Leon, J.); Pl.'s Mot. Leave to Take Discovery, ECF No. 4, at 5 (stating that if the Court permitted discovery, ISPs will "notify their subscribers that this information is being sought, and each Defendant will have the opportunity to raise any objections before this Court prior to the return date of the subpoena."). Many of the putative defendants moved to prevent release of their identifying information, arguing primarily that (1) the subpoenas issued to their ISPs should be quashed because they required disclosure of privileged or protected information, or that they should be dismissed because (2) they did not engage in the alleged illegal conduct, (3) the Court lacks personal jurisdiction, or (4) the putative defendants are improperly joined. On May 12, 2011, the Court denied the putative defendants' motions, on grounds, inter alia, that the motions were premature because the plaintiff had yet to name defendants in the case. Maverick Entm't Grp., Inc. v. Does 1- 2,115, No. 10-cv-569, 2011 WL 1807428 (D.D.C. May, 12, 2011). With regard to the release of the putative defendants' identifying information, the Court held that the putative defendants' right to anonymity in the context of their BitTorrent activity does not outweigh the plaintiff's need to conduct limited discovery to identify individuals infringing its copyrights. Id. at *4.

On June 9, 2011, Frank Digiovannangelo (hereinafter "the Movant") filed a motion to intervene "for the purposes of quashing or modifying the subpoena issued to his ISP, or, in the alternative, raising defenses under Rule 12(b) of the Federal Rules of Civil Procedure." ECF No. 139, at 1. The Movant claims that IP address 173.59.37.2 (putative defendant number 4504), which is listed in the Amended Complaint, is associated with his computer and internet usage. The plaintiff is apparently continuing to seek identifying information for this IP address and has not dismissed this IP address from this lawsuit.

Along with his motion to intervene, the Movant simultaneously filed motions to quash the subpoena, and to dismiss the case against him on grounds of misjoinder and lack of personal jurisdiction. The Court denied these motions on June 17, 2011, referencing the Court's previous May 12, 2011 Memorandum Opinion, which fully explained the Court's reasoning for denying motions to quash and motions to dismiss filed by persons, such as Movant, who are not named defendants in the case but claim that they are identified by an IP address in the Complaint. Minute Order dated June 17, 2011 (Howell, J.).

On July 8, 2011, the plaintiff moved for sanctions pursuant to Federal Rule of Civil Procedure 11 against the Movant's attorney, Eric J. Menhart, arguing that the Movant's motion to intervene "is nearly identical to numerous similar motions previous filed by this attorney and denied by this Court." Pl.'s Mot. Sanctions, ECF No. 145, at 2. The plaintiff further asserts that the Movant's filings are "procedurally and substantively defective, [and] they amount to nothing more than frivolous filings made in a deliberate attempt to somehow circumvent this Court's clearly established memorandum opinions and orders." Id.

As set forth below, the Court further clarifies the reasons for denial of the Movant's motion to intervene and denies the plaintiff's request for Rule 11 sanctions against Movant's counsel for filing a motion to intervene on behalf of his client.

II.DENIAL OF THE MOVANT'S MOTION TO INTERVENE

Federal Rule of Civil Procedure 24 states that the Court "must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." FED. R. CIV. P. 24(a)(2). To intervene as a matter of right under FED. R. CIV. P. 24(a), "(1) the application to intervene must be timely; (2) the applicant must demonstrate a legally protected interest in the action; (3) the action must threaten to impair that interest; and (4) no party to the action can be an adequate representative of the applicant's interests." Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008) (quoting SEC v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C. Cir. 1998)); see also Aref v. Holder, 774 F. Supp. 2d 147, 171 (D.D.C. 2011). If a movant does not meet the requirements to intervene as a matter of right, the Court may nonetheless allow intervention, pursuant to FED. R. CIV. P. 24 (b), if the movant "has a claim or defense that shares with the main action a common question of law or fact." FED. R. CIV. P. 24 (b)(1)(B).

In the instant case, the Movant timely moved to intervene, but he is not entitled to intervene as a matter of right because he does not have a sufficiently cognizable legally protected interest in the litigation. Furthermore, permissive ...


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