Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
0Activity
0 of .
Results for:
No results containing your search query
P. 1
Cronshaw, Mark-Memorandum in Support of 12(b)(6) Motion to Dismiss

Cronshaw, Mark-Memorandum in Support of 12(b)(6) Motion to Dismiss

Ratings: (0)|Views: 14|Likes:
Published by J Doe

More info:

Published by: J Doe on Nov 08, 2012
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

12/04/2012

pdf

text

original

 
1
 
UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO
MALIBU MEDIA, LLC, DEFENDANT MARK CRONSHAW’S MEMORANDUMOF POINTS AND AUTHORITIESIN SUPPORT OF DEFENDANT’SMOTION TO DISMISSPLAINTIFF’S COMPLAINT FOR FAILURE TO STATE A CLAIM
 
Plaintiff,vs. 1:12-cv-01394-WYD-MEHLAURA LINN,ANDREW SCHINSKY,MARK CRONSHAW,CHRISTOPHER Chief Judge Wiley Y. DanielO’SHELL,WEI GOODRICH, andJOHN DOE 1Defendants.
DEFENDANT MARK CRONSHAW’S MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISSPLAINTIFF’S COMPLAINT FOR FAILURE STATE A CLAIM
Defendant, Mark Cronshaw (“Defendant”), by and through undersigned counsel and pursuant to Fed.R.Civ.P. 12(b)(6), hereby moves to dismiss Malibu Media, LLC’s (“Plaintiff’s”)Complaint for failing to state a claim upon which relief may be granted and provides thefollowing supporting points an authorities:
 
2
INTRODUCTION
Plaintiff’s Amended Complaint alleges that Defendant reproduced and distributedPlaintiff’s copyrighted files through a series of BitTorrent transactions, using a computer accessing the Internet, and identified through an Internet Protocol (“IP”) address assigned to theDefendant’s Internet account (Docket No. 63 ¶A). The entirety of Plaintiff’s claims hinge uponthe purely speculative conclusion that the Internet Service Provider (“ISP”), to which Defendantsubscribes can correlate the Defendant’s IP address to the Defendant’s true identity. (AmendedComplaint, Docket No. 63, ¶15). Significantly, Plaintiff fails to provide information or detailswhatsoever as to how Plaintiff actually concluded that Defendant, in-fact, committed anyvolitional act as required to sustain a claim of direct copyright infringement. Plaintiff’s AmendedComplaint is purely speculative, factually inaccurate, and misleading, and accordingly, should bedismissed.
LEGAL STANDARDS
 
A.
 
JUDICIAL ESTOPPEL
The legal principle of judicial estoppel is a discretionary remedy that courts may invoke“to prevent ‘improper use of judicial machinery.’”
 Johnson v. Lindon City Corp
., 405 F.3d 1065,1068 (10th Cir. 2005) (citing
 New Hampshire v. Maine
, 532 U.S. 742, 750 (2001) (citationomitted). "Where a party assumes a certain position in a legal proceeding, and succeeds inmaintaining that position, he may not thereafter, simply because his interests have changed,assume a contrary position, especially if it be to the prejudice of the party who has acquiesced inthe position formerly taken by him."
 Id 
. quoting
 Davis v. Wakelee
, 156 U.S. 680, 689(1895).Although noting that this rule is "'probably not reducible to any general formulation of 
 
3
 principle,'"
 New Hampshire
, 532 U.S. at 750 (citation omitted), the Court noted several factorswhich other courts have typically used to determine when to apply judicial estoppel.First, a “party's later position must be 'clearly inconsistent' with its earlier position."
 Id 
.(citation omitted). Moreover, the position to be estopped must generally be one of fact rather than of law or legal theory.
 Lowery v. Stovall 
, 92 F.3d 219, 224 (4th Cir. 1996). Second,"whether the party has succeeded in persuading a court to accept that party's earlier position, sothat judicial acceptance of an inconsistent position in a later proceeding would create 'the perception that either the first or the second court was misled.'"
 New Hampshire
, 532 U.S. at 750(citation omitted). The requirement that a previous court has accepted the prior inconsistentfactual position “ensures that judicial estoppel is applied in the narrowest of circumstances.”
 Lowery
, 92 F.3d at 224. Third, “whether the party seeking to assert an inconsistent positionwould derive an unfair advantage or impose an unfair detriment on the opposing party if notestopped.”
 New Hampshire
, 532 U.S. at 751.
B.
 
RULE 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Dismissal of a complaint is appropriate where, accepting the complaint as true and acceptingall inferences in the light most favorable to the plaintiff, the complaint fails as a matter of law tostate a claim on which relief can be granted. Fed.R.Civ. P. 12(b)(6). To survive a motion todismiss for failure to state a claim, a complaint must satisfy the pleading requirements set forthin Federal Rule of Civil Procedure 8(a)(2). While Rule 8’s pleading standard "does not require'detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."
 Ashcroft v. Iqbal 
, 556 U.S. 662, 678 (2009)(citing
 Bell Atl. Corp., v.Twombly
, 550 U.S. 544, 555 (20 07)). Consequently, to survive a motion for dismissal, a“complaint’s allegations must plausibly suggest that the plaintiff has a right to relief [and raise]

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->