Tuesday, February 19, 2013

Motion to dismiss complaint for failure to state a claim granted in AF Holdings v Rogers

In a San Diego, California, case, AF Holdings v. Rogers, a motion to dismiss the complaint, for failure to state a claim, has been granted. Chief Judge Barry Ted Moskowitz ruled as follows:

[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity.
January 29, 2013, Order Partially Granting Motion to Dismiss for Failure to State a Claim, Hon. Barry Ted Moskowitz, Chief Judge
Defendant's memorandum of law in support of motion to dismiss

Commentary & discussion:


Ray Beckerman, PC


Anonymous said...

It's been over 20 days. Has Plaintiff filed their second amended complaint yet?

raybeckerman said...

Good question.

No, they withdrew the whole case instead, probably hoping to find some less smart judge.