United States District Court, D. Utah, Central Division
Nuffer District Judge
REPORT AND RECOMMENDATION
B. PEAD, UNITED STATES MAGISTRATE JUDGE.
matter was referred to the Court under 28 U.S.C. §
636(b)(1)(B). (ECF No. 15). Plaintiff LHF Productions
(“LHF”) brings a single claim for copyright
infringement alleging that each Defendant downloaded
LHF's copyrighted motion picture, London Has
Fallen. See (ECF No. 2). The case is now before
the court on Defendant Alan Carroll's Motion to Dismiss.
(ECF No. 39). The court decides the motion on the
parties' briefs, without oral argument.
Carroll does not identify any legal standard governing his
motion, nor does he cite to any particular rule on which he
relies for dismissal. The court construes Mr. Carroll's
motion liberally and concludes, as did LHF, that he seeks
dismissal pursuant to Rule 12(b)(6). “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.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“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. Id. “Nevertheless,
conclusory allegations without supporting factual averments
are insufficient to state a claim on which relief can be
based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Finally, while pro se filings must be
construed liberally, a court must avoid acting as an advocate
for a pro se litigant. Hall at 1110.
Carroll contends the claim against him should be dismissed
because LHF lacks proof that Mr. Carroll, rather than someone
else in his household, downloaded LHF's copyrighted
motion picture. (ECF No. 39). Also, Mr. Carroll contends he
cannot be held liable for copyright infringement “when
the copyright holder made the copyrighted material available
to me or someone else with torrent software.”
contends Mr. Carroll's motion should be denied because it
is untimely and because LHF's claim is properly pled.
(ECF No. 40). LHF also contends the facts it has discovered
to date tend to support its claims and that Mr. Carroll's
arguments raise factual disputes that are not appropriate
when the court considers a motion to dismiss.
The undersigned recommends the District Court deny Mr.
Carroll's motion because he has provides no proper basis
on which to dismiss LHF's claim
Carroll provides no basis on which the court may dismiss the
claim against him. As stated above, a motion to dismiss
challenges the adequacy of allegations in a pleading.
“[A] judge ruling on a defendant's motion to
dismiss a complaint ‘must accept as true all of the
factual allegations contained in the complaint.'”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572
(2007). The factual allegations must state a
“plausible” claim for relief. Ashcroft
at 678. Mr. Carroll does not attempt to identify any
deficiency in the pleadings. Instead, he speaks in terms of
alternative facts that “could have” occurred that
might limit his liability. Thus, his motion to dismiss fails.
Mr. Carroll may present facts to dispute the allegations in
Plaintiff's Complaint at the appropriate time, but he may
not do so in the context of a motion to
on the foregoing, the undersigned RECOMMENDS
the District Court DENY Mr. Carroll's