In the Eastern District of North Carolina, in Elektra v. Doe, the Raleigh, North Carolina, case targeting NC State students, District Judge Louise W. Flanagan has issued a ruling indicating that she is going to take a "fresh look" at the RIAA's John Doe cases, and has stayed the subpoena which the RIAA served upon the university.
The ruling came in response to two John Does' motions to dismiss the complaint, strike the Carlos Linares declaration, and quash the subpoena.
Judge Flanagan held as follows:
Plaintiffs have filed nearly identical complaints against this defendant, and others named as defendants in the prior pending action, and many of these actions have been assigned now to me. In this case, and one other, bearing court file number 5:08-CY-116, defendant has moved to dismiss, to strike plaintiffs' affidavit,to quash subpoena,and to stay enforcement of the subpoena addressed to North Carolina State University.July 2, 2008, Order staying discovery and referring motions to dismiss, strike, and quash to Magistrate Judge
In furtherance of dismissal, defendant in court file number 5:08-CY-115 seeks the court where plaintiffs' agent is asserted to have engaged in criminal activity, to strike "the second-hand [Carlos] Linares Declaration and Plaintiffs Exhibit 1 that it supports," and, where "[t]he remaining bare allegations are not enough to survive the Twombley standard," to dismiss the action. Similar argument is offered in court file number 5:08-CY-116. Urging First Amendment anonymity interests, defendant in each case seeks for the court to quash the subpoena at issue. In the interim, prior to decision on the motions, defendant in each case seeks the court to relieve North Carolina State University of any responsibility to respond to the subpoena.
In all cases before this court, the undersigned has allowed plaintiffs' expedited motion for discovery. Several of the cases assigned to me, all originating out of the prior pending action, recently have been closed upon voluntary dismissal.
For good cause shown, the motion to stay enforcement of subpoena addressed to North Carolina State University, served upon David Drooz, Associate General Counsel, is ALLOWED pending decision on remaining motions.
While motion to dismiss was raised on behalf of defendants denominated as Does #1,#18, #19, #26, #31, #33, #35, and #38, and denied, it is unclear whether defendant in either court file number 5:08-CY-115 or court file number 5:08-CY-116, were among those Does in the prior action, and, moreover, the basis for dismissal pursuant to Rule 12 is argued in these cases on grounds not fully raised in court file number 5:07-CY-298. Accordingly, a fresh look at the arguments in support of and in opposition to the motion to dismiss before the court,and attendant motion to strike, is called for. The court refers pretrial motions pending in this case to Magistrate Judge James E. Gates, for decision on the motion to quash and for memorandum and recommendation on the motion to dismiss and attendant motion to strike.
Brief in support of motion
Affidavit in support of motion
Commentary & discussion:
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