UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MALIBU MEDIA, LLC,
Plaintiff,
v.

No. 3:18-cv-01369 (JAM)

JOHN DOE,
Defendant.

ORDER DENYING MOTION FOR DEFAULT JUDGMENT
Imagine that someone accesses the internet via a particular internet protocol (“IP”)
address and illegally downloads movies. That IP address was assigned by an internet service
provider (“ISP”) to one of its subscriber accounts. Is it fair to say that the ISP account
subscriber—the person who pays the internet bill—is the individual who must have engaged in
the illegal activity and who should pay a large damages award if he or she does not appear in
court to deny doing anything wrong? At a time when wireless internet networks and personal
electronic devices are ubiquitous, and when network passwords, logins for TV streaming
services, and Amazon accounts are freely shared with family, friends, roommates, businesses,
and even strangers, I don’t think so.
This issue arises in the context of an unopposed motion for default judgment by plaintiff
Malibu Media, LLC, a maker and distributor of adult films that have been chronically subject to
illegal downloading activity on the internet. Defendant John Doe is the named subscriber to a
Cox Communications internet service account that is associated with the IP address that was
used to unlawfully download several of Malibu Media’s films. 1 Because Malibu Media does not

1

Because of compelling reasons not to disclose the true name of the defendant in this action, I granted Malibu
Media’s request to file this motion under seal. Doc. #28. Accordingly, the defendant is identified as “John Doe”
throughout this ruling.

1

 allege any additional facts beyond Doe’s subscriber status to show that he engaged in the
unlawful downloading of Malibu Media films, I conclude that Malibu Media has not alleged
plausible grounds for relief and will deny Malibu Media’s motion for default judgment without
prejudice.
BACKGROUND
The following facts are taken from plaintiff Malibu Media’s complaint and are accepted
as true for the purpose of ruling on this motion. On August 13, 2018, Malibu Media, the owner
of the copyrighted adult films at issue, filed this action against John Doe, the then-unknown
subscriber of the account assigned to IP address 72.192.32.104, alleging violations of the
Copyright Act. Doc. #1. Malibu Media alleges that the IP address in question was used to
illegally distribute its copyrighted movies, after its investigator established a direct TCP/IP
connection with the IP address and determined that the “BitTorrent file distribution network,” a
peer-to-peer file sharing system, was used to copy Malibu Media’s films without authorization.
Doc. #17 at 2-4 (¶¶ 10-23) (amended complaint). Malibu Media’s investigator proceeded to use
“proven IP address geolocation technology,” which it claims has “consistently worked in similar
cases,” to trace the IP address to a physical address located within the District of Connecticut. Id.
at 1-2 (¶ 5).
The Court granted Malibu Media’s motion for leave to serve a third-party subpoena on
Cox Communications to obtain the name of the owner of the internet subscriber account that was
assigned to the IP address at the relevant time. Docs. #8, #10. Pursuant to that subpoena, Malibu
Media determined the name of the listed owner of the internet subscriber account.
In March 2019, Malibu Media filed an amended complaint naming Doe as defendant,
alleging that he “downloaded, copied, and distributed a copy of Plaintiff’s movies without

2

 authorization” and that he “is a habitual and persistent BitTorrent user and copyright infringer.”
Doc. #17 at 4 (¶¶ 23, 25). As its single cause of action, Malibu Media asserts direct infringement
of copyright under 17 U.S.C. § 106 et seq. Id. at 5-6 (¶¶ 28-33). In its amended complaint,
Malibu Media states this cause of action specifically against Doe, without further reference to an
IP address.
Malibu Media alleges only that its investigator “connected, over a course of time, with
Defendant’s IP address.” Id. at 4 (¶ 24). The amended complaint does not allege that anyone ever
spoke with or contacted Doe personally. Nor does the amended complaint state facts to suggest
that Doe has exclusive access to the internet account assigned to the specified IP address. But
Malibu Media nonetheless avers that its investigation established that “[Doe]”—himself,
personally—“downloaded, copied, and distributed a complete copy of Plaintiff’s works without
authorization.” Id. at 4 (¶ 23); see also id. at 3, 5 (¶¶ 18, 30) (respectively alleging that
“Plaintiff’s investigator downloaded from Defendant” digital media files, and that “Defendant
copied and distributed” elements of the protected videos).
Doe was personally served with a summons and amended complaint at an address in
Wethersfield, Connecticut. Doc. #23. He did not answer or otherwise appear in the action. In
May 2019, the Court granted a motion for default entry against Doe. Docs. #25, #26. Malibu
Media has now filed an unopposed motion for entry of default judgment, seeking statutory
damages in the amount of $7,500, a permanent injunction, and an award of attorney’s fees and
costs. Docs. #29; #29-1 at 1, 16.
DISCUSSION
“It is an ancient common law axiom that a defendant who defaults thereby admits all
well-pleaded factual allegations contained in the complaint.” City of New York v. Mickalis Pawn

3

 Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (internal quotations and citations omitted). Federal
Rule of Civil Procedure 55 “provides a ‘two-step process’ for the entry of judgment against a
party who fails to defend: first, the entry of a default, and second, the entry of a default
judgment.” Id. at 128; Fed. R. Civ. P. 55(a)-(b). Once the clerk enters a default pursuant to Rule
55(a), “the court may, on plaintiffs’ motion, enter a default judgment if liability is established as
a matter of law when the factual allegations of the complaint are taken as true.” Bricklayers &
Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC,
779 F.3d 182, 187 (2d Cir. 2015).
Although it is true that “a defendant who defaults thereby admits all well-pleaded factual
allegations contained in the complaint,” it is also true that “a district court need not agree that the
alleged facts constitute a valid cause of action.” Mickalis Pawn Shop, 654 F.3d at 137. That is to
say, a default “only establishes a defendant’s liability if those allegations are sufficient to state a
cause of action against the defendant.” Taizhou Zhongneng Import & Export Co. v. Koutsobinas,
509 F. App’x 54, 56 (2d Cir. 2013) (default judgment wrongly entered on breach of contract
claim against party who was not a party to the contract and in the absence of further factual
allegations to show that the non-party was subject to veil-piercing liability for breach of
contract).
A court should not grant a motion for default judgment simply because a plaintiff alleges
in a conclusory fashion that a defendant has violated the law. Instead, the factual allegations in
support of default judgment must establish plausible grounds for relief. Thus, a court must
evaluate whether the factual allegations set forth as a basis for the default judgment motion
would survive a challenge by way of a motion to dismiss for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure. See, e.g., Belizaire v. RAV Investigative & Sec.

4

 Servs. Ltd., 61 F. Supp. 3d 336, 344 (S.D.N.Y. 2014); Atl. Recording Corp. v. Brennan, 534 F.
Supp. 2d 278, 283 (D. Conn. 2008). As the Supreme Court has noted, the plausibility standard
that governs the adequacy of the factual allegations of a complaint “is not akin to a probability
requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Notwithstanding Malibu Media’s well-pleaded allegations that someone infringed its
copyright, the issue here is whether it has plausibly alleged that it was Doe who did so. On the
one hand, some courts conclude that, if there has been a copyright infringement traced to a
particular IP address, it is plausible to conclude that the subscriber to the ISP account that
corresponds to this IP address is the one who engaged in the acts of copyright infringement. See,
e.g., Countryman Nevada LLC v Pitts, 2014 WL 7178077, at *2 (M.D. Fla. 2014); Malibu Media
LLC v John Does 1–11, 2013 WL 3732839, at *4 (S.D.N.Y. 2013).
On the other hand, a growing weight of authority runs to the contrary, with courts
concluding that a defendant’s status as subscriber of the ISP account associated with the IP
address used to infringe a copyright, standing alone, merely makes it possible—rather than
plausible—that it was the defendant who engaged in the acts of unlawful infringement. See, e.g.,
Malibu Media LLC v. Duncan, 2020 WL 567105, at *4-6 (S.D. Tex. 2020) (collecting cases);
Malibu Media v. Park, 2019 WL 2960146, at *6 (D.N.J. 2019) (denying motion for default
judgment against subscriber to ISP account associated with IP address used for infringing
activity); Malibu Media, LLC v. Doe, 2018 WL 6446404, at *3 (N.D. Ill. 2018) (granting motion
to dismiss by subscriber to ISP account associated with IP address used for infringing activity).
The Second Circuit has yet to address the issue, but the Ninth Circuit has persuasively
explained why a plaintiff like Malibu Media does not state plausible grounds for relief by

5

 alleging only that a defendant is the registered owner of the internet subscriber account assigned
to the IP address associated with the infringement activity. See Cobbler Nevada LLC v.
Gonzalez, 901 F.3d 1142 (9th Cir. 2018). “Although copyright owners can often trace
infringement of copyrighted material to an IP address, it is not always easy to pinpoint the
particular individual or device engaged in the infringement.” Id. at 1146. “[S]imply establishing
an account [that is associated with an IP address] does not mean the subscriber is even accessing
the internet, and multiple devices can access the internet under the same IP address.” Ibid.
Another court has also aptly explained why it is speculative to conclude that unlawful
activity involving a particular IP address should be attributed to the subscriber of the ISP account
that is associated with that IP address:
[I]t is no more likely that the subscriber [of an ISP account assigned]
to an IP address carried out a particular computer function—here the
purported illegal downloading of a single pornographic film—than
to say an individual who pays the telephone bill made a specific
telephone call.
Indeed, due to the increasing[] popularity of wireless routers, it [is]
much less likely.… [A] single IP address usually supports multiple
computer devices—which unlike traditional telephones can be
operated simultaneously by different individuals. Different family
members, or even visitors, could have performed the alleged
downloads. Unless the wireless router has been appropriately
secured (and in some cases, even if it has been secured), neighbors
or passersby could access the Internet using the IP address assigned
to [the ISP account of a] particular subscriber and download the
plaintiff’s film.
In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 84, report and
recommendation adopted sub nom. Patrick Collins, Inc. v. Doe 1, 288 F.R.D. 233 (E.D.N.Y.
2012).
Beyond alleging that Doe is the subscriber of the ISP account associated with the IP
address used for infringing activity, Malibu Media does not allege any additional facts to make it
6

 plausible to conclude that it was Doe—rather than other persons—who was responsible for the
infringing activity. For example, Malibu Media does not allege any facts about whether the
physical address corresponds to a single-family home or a multi-unit apartment building. Nor
does Malibu Media allege any facts about the number of persons who reside at the physical
address that corresponds to the ISP subscriber account and IP address. Nor does Malibu Media
allege any facts about the network configuration at the physical address, such as whether there is
wireless internet or whether the network is secured or unsecured. Compare Malibu Media, LLC
v. Doe, 2019 WL 8301066, at *2 (N.D. Ill. 2019) (denying motion to dismiss by defendant
subscriber of ISP account because “Malibu Media’s [new] allegations about Doe’s background
in computer science and presence as the lone adult male in the residence during the period of
infringement further make it plausible that Doe, and not another individual, was the infringer.”).
To be sure, I understand that “the technology limitations potentially puts a plaintiff [like
Malibu Media] in a difficult position in naming the correct defendant,” but “such limitations do
not relieve a plaintiff of alleging sufficient facts so that a court can reasonably infer that the
named defendant is the actual infringer.” Malibu Media v. Park, 2019 WL 2960146, at *6.
Without additional allegations, “[i]t thus remains just as possible that the IP address was used by
family members, roommates, guests, friends, and neighbors.” Malibu Media v. Duncan, 2020
WL 567105, at *6. Accordingly, I will deny the motion for default judgment without prejudice to
renewal on the basis of additional allegations to plausibly show that it was Doe who engaged in
the alleged infringing activity.
CONCLUSION
For the reasons set forth above, the motion for default judgment (Doc. #29) is DENIED
without prejudice. Malibu Media may file a renewed motion for default judgment by September

7

 14, 2020. If Malibu Media does not file a renewed motion for default judgment by that date, the
Court may dismiss this action for failure to prosecute.
It is so ordered.
Dated at New Haven this 13th day of August 2020.
/s/Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

8