MADALINA IACOB, Plaintiff, v. JOHN DOE #1-41, Defendants 18-CV-11829 (MKV) (KHP) United States District Court, S.D. New York Filed March 11, 2020 Counsel Madalina Ramona Iacob, Bronx, NY, pro se Parker, Katharine H., United States Magistrate Judge REPORT AND RECOMMENDATION *1 TO: HON. MARY KAY VYSKOCIL, United States District Judge FROM: KATHARINE H. PARKER, United States Magistrate Judge Pro se Plaintiff Madalina Ramona Iacob filed this copyright infringement action on December 17, 2018 against 52 John Doe Defendants (she has since amended her Complaint to identify the Defendants by weblink). Plaintiff has been given multiple opportunities to file a proper complaint and identify the entities and persons she wishes to sue and/or to provide the Court with sufficient information to allow it to help her identify the John Doe defendants and approve issuance of subpoenas. Having failed to comply with multiple Court orders, I respectfully recommend that this action be dismissed without prejudice. FACTUAL ALLEGATIONS Plaintiff states that she is a model, author, and entrepreneur who has built a life coaching business focused on female empowerment. She built a website as part of her business and posted various photographs and text on it, including articles and links to e-books she wrote. She also used Facebook and Instagram to promote her business and posted her photos on these platforms as well. She also offered her books for sale on Amazon. In or around 2015, Plaintiff was sued by her landlord for renting out her one-bedroom apartment in New York City through Airbnb, which caused the landlord to incur various fines for operating as an illegal hotel. The lawsuit was widely publicized. Plaintiff asserts that her business, reputation, and social standing were destroyed because of the lawsuit. Many news organizations posted photographs of Plaintiff or her apartment building online to accompany their stories about the Airbnb-related lawsuit against her. Most of the news articles appear to have been published in or around December 2015, and many of the pictures of Plaintiff appear to be modeling pictures taken from her social media accounts and personal webpage. Plaintiff contends that, because the news articles related to the lawsuit, there was no reason for them to use her modeling pictures. She asserts that the news organizations took her photos from her website or Facebook postings and used them without her permission to accompany their articles in violation of her copyrights. Additionally, Plaintiff alleges that the news organizations benefitted from increased traffic to their websites after they posted her personal pictures. She also complains that she was portrayed negatively in the news articles and that others reposted the pictures on other websites, such as exoffenders.com, which portrayed her as a criminal or sex worker.[1] The reposting and links to the 2015 lawsuit articles continued through at least 2017. Plaintiff has attached screenshots of the offending internet postings to her Complaint that purportedly show the date of the postings. Not all the pictures attached to the Complaint, however, clearly show the date when the postings were first made. *2 Plaintiff has provided copyright registrations for various photographs and a book registered within 5 years of the works first being published on her website. Most of the copyrights were registered in February 2017. The various works and registrations include: • A book with photographs that appears to have been registered on March 28, 2017; • A photo of three women that appears to have been registered on February 15, 2017; • A photo of two women, one in a floral top and black skirt, that appears to have been registered on February 15, 2017; • A photo of two women, one in a red dress, that appears to have been registered on February 15, 2017; • A photo of a woman in a green shirt and black skirt sitting by the water that appears to have been registered on February 15, 2017; • A picture of a woman in a green dress that appears to have been registered on February 15, 2017; • A photo of a woman in a purple dress that appears to have been registered on February 15, 2017; • A photo of a woman in a cat Halloween costume that appears to have been registered on February 15, 2017; • A photograph entitled Business Lifestyle that appears to have been registered on February 15, 2017; and • A book entitled Self Love-Return to Innocence that appears to have been submitted for copyright registration in July 2015. Plaintiff alleges that she sent some of the websites letters asking them to take down the photos and alerting them to their copyright infringement, but that the owners of the websites and/or journalists (including the Daily Mail and the New York Post) refused to take down the pictures. As a result, she asserts her pictures have been used and re-used and constantly uploaded to new websites, perpetuating the infringement of her works. PROCEDURAL HISTORY Plaintiff initially listed herself on the caption as Jane Doe and requested to proceed anonymously. The Honorable Analisa Torres denied Plaintiff's request and required her to file a complaint with her real name by January 28, 2019. Plaintiff failed to comply with the Court's directive, but in light of Plaintiff's pro se status, Judge Torres directed the Clerk of Court to amend the caption with Plaintiff's real name. This Court reviewed Plaintiff's Complaint and deemed it insufficient because it failed to identify any defendants or provide sufficient information to allow the Court to assist Plaintiff in identifying any of the defendants. Accordingly, it ordered Plaintiff to file an amended complaint by April 29, 2019 containing information specified by the Court. (Doc. No. 10.) The Court also encouraged Plaintiff to consult with the free legal clinic located in the Thurgood Marshal United States Courthouse regarding necessary amendments. Plaintiff filed an Amended Complaint on April 16, 2019. That Complaint did not comply with the Court's order. Nevertheless, the Court gave Plaintiff another opportunity to correct the deficiencies by filing a second amended complaint. (Doc. No. 12.) Plaintiff filed a Second Amended Complaint on May 20, 2019. That Complaint also was deficient because it failed to identify any individuals or entities against whom she might be able to assert claims. In light of Plaintiff's pro se status, the Court gave Plaintiff one last chance to file a third amended complaint addressing deficiencies specified by the Court. The Court ordered Plaintiff to file a new complaint that provided: (1) a name or pseudonym for each defendant; (2) the name of the website or forum in which they posted Plaintiff's copyrighted pictures; (3) the website address for each post; and (4) the specific copyrighted picture(s) posted. The Court also required Plaintiff to provide facts supporting her copyright claims. In particular, the Court specified that, in her prior Complaints, Plaintiff had failed to: (1) identify all of the pictures that are the subject of her copyright infringement claim; (2) allege facts showing her ownership of the copyrights at issue; (3) assert that she preregistered or registered her copyrights with the United States Copyright Office; and (4) describe with specificity how and when the defendants infringed her copyrights. (Doc. No. 14.) The Court gave Plaintiff until September 30, 2019 to address these deficiencies and warned her that her Complaint could be dismissed sua sponte for failure to comply. (Id.) *3 Plaintiff filed a Third Amended Complaint (“TAC”) on September 20, 2019. (Doc. No. 15.) In it, she contends that 41 Defendants infringed her copyrights in various photographs by posting those photographs on the internet without her permission. Instead of listing the names of entities or persons as defendants, Plaintiff lists 41 weblinks, some of which no longer work, where the photos were posted as the “Defendants.” However, she identifies the Daily Mail and the New York Post as defendants in the body of the TAC, which appear to correlate with Defendants 18 and 19, respectively. She also mentions the Gothamist in the body of the TAC, which appears to be Defendant 28 based on the weblink provided, and states she previously sued Gothamist for defamation. Similarly, in the TAC Plaintiff states that she contacted Disqus and informed it she would file a defamation suit against it. Disqus appears to be Defendant 8 based on the weblink provided. Several other weblinks appear to identify companies that appear to be Plaintiff's intended defendants. For example, Defendant 10 is a weblink to a Jewish Business News post and Defendant 17 is a weblink to a New York Daily News post. Other “Defendant” weblinks refer to postings on Facebook (Defendants 6 and 35) and Pinterest (Defendant 32), but it is unclear who was responsible for the offending posts. What is clear, however, is that Plaintiff has made no effort to serve the TAC on the New York Post, the Daily Mail, Gothamist, Disqus, the New York Daily News or Jewish Business News, nor did she list these entities in her caption as defendants. On the same day she filed the TAC, Plaintiff also filed a Motion for a Temporary Restraining Order (“TRO”) pursuant to Federal Rule of Civil Procedure 65(b) against the Daily Mail and New York Post, which she identified in the Motion as “defendant 18” and “defendant 19,” respectively. In her Motion, Plaintiff alleged, among other things, that these particular entities were infringing on her copyrights. The Motion was denied by Judge Torres on September 24, 2019 because it failed to comply with the requirements of Rule 65(b) and Plaintiff also failed to show that she would suffer irreparable harm if the Motion was not granted. REQUEST FOR DISCOVERY In the TAC, Plaintiff asks the Court to prepare subpoenas for each of the 41 weblink “Defendants” and to allow her to serve the subpoenas by email so that she can learn the “real identity” of her Defendants. She has provided “Registrar email” addresses for all of the weblinks and contends that the “Registrars” or hosting companies have a legal obligation to comply with court orders and subpoenas and reveal the identity of the individuals who posted her copyrighted works. She has provided a “contact address” for a number of the Defendants in addition to an email address. DISCUSSION The district court has the discretion to dismiss cases for lack of prosecution pursuant to Federal Rule of Civil Procedure 41(b). See Lukensow v. Harley Cars of New York, 124 F.R.D. 64, 66 (S.D.N.Y. 1989) (citing Harding v. Federal Reserve Bank of New York, 707 F.2d 46 (2d Cir. 1983)); see also McKiver v. City of New York, No. 17-cv-4411 (GBD) (KHP), 2019 WL 7602171, at *2 (S.D.N.Y. July 17, 2019) (collecting cases), adopted sub nom. by McKiver v. Gerding, No. 17 Civ. 4411 (GBD) (KHP), 2019 WL 4784658 (S.D.N.Y. Oct. 1, 2019). “A District Court may, sua sponte, dismiss an action for lack of prosecution.” Lukensow, 124 F.R.D. at 66 (collecting cases). The Second Circuit, however, has added a caveat to this discretionary power, cautioning that dismissal under Rule 41(b) “is a harsh remedy and is appropriate only in extreme situations.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). Dismissal should be determined in “light of the whole record.” Id. The Second Circuit has further advised district courts to “be especially hesitant to dismiss for procedural deficiencies where ... the failure is by a pro se litigant.” Id. Before dismissing a pro se litigant's case, the court should consider: “(1) the duration of the plaintiff's failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.” Id. In this case, Plaintiff has failed to comply with the Court's order to name defendants, notwithstanding the fact that she clearly has a basis for identifying at least some of the entities she apparently intends to sue for copyright infringement. For example, on the same day she filed the TAC, Plaintiff also filed a Motion seeking a TRO against the New York Post and Daily Mail for allegedly infringing on her copyrights and identified both as “defendant[s]” in that Motion. Although Plaintiff has been given multiple opportunities to clarify who she is suing, she has not done so. Plaintiff also has been warned that a failure to comply with this Court's order to amend her Complaint would result in dismissal. *4 Plaintiff also has not followed posted rules for pro se litigants in this court. Pro se litigants are required to submit a completed summons to the Pro Se Intake Unit for the Clerk of Court to sign, seal, and issue. See Fed. R. Civ. P. 4(b). Pro se litigants are advised of this obligation on this District's website. See How to Start a Lawsuit Without an Attorney, NYSD.USECOURTS.GOV, https://nysd.uscourts.gov/prose/appearing-without-an-attorney (last accessed Mar. 10, 2020). The summons must be directed to a defendant and include the defendant's address. Plaintiff could have, but did not, complete summonses for the news agencies she believes infringed her copyrights. Nor did she supply the information necessary for the Court to complete such summons. Once a summons is issued, it must be served by the Plaintiff within 90 days. Fed. R. Civ. P. 4(m). If service is not made within that timeframe, the Court must either dismiss the action without prejudice or grant the plaintiff additional time to serve the complaint if the plaintiff demonstrates good cause for her failure to serve the complaint. Id.; see also Cassano v. Altshuler, 186 F. Supp. 3d 318, 322 (S.D.N.Y. 2016) (dismissing pro se plaintiffs’ complaint where they failed to justify their failure to effectuate proper service on defendants, and the court declined to exercise its discretion to extend the time to complete service). Here, in light of the fact that Plaintiff has failed to name any suable entities or serve entities that appear to be intended defendants, despite having multiple opportunities to do so, the Court declines to afford Plaintiff an additional opportunity to amend and serve her Complaint. To the extent Plaintiff has sought discovery to learn the identity of her John Doe Defendants, she has not satisfied the criteria for obtaining such discovery. Courts in this district have granted plaintiffs leave to serve a third-party subpoena prior to a Rule 26(f) conference to ascertain the identity of a John Doe defendant who has infringed on the plaintiff's copyright. See Strike 3 Holdings, LLC v. Doe, No. 1:19-cv-11466-AJN, 2020 WL 264584 (S.D.N.Y. Jan. 17, 2020) (granting plaintiff leave to serve a third-party subpoena prior to Rule 26(f) conference to learn identity of John Doe defendant whose IP address had been associated with infringing activity). Courts apply a “flexible standard of reasonableness and good cause” when deciding whether to grant such a request. See Digital Sin, Inc. v. John Does 1-176, 279 F.R.D. 239, 241 (S.D.N.Y. Jan. 30, 2012) (internal quotation marks and citation omitted); Stern v. Cosby, 246 F.R.D. 453, 457 (S.D.N.Y. 2007) (same); see also 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2046.1 (3d ed. Aug. 2019) (“Although [Rule 26(d) ] does not say so, it is implicit that some showing of good cause should be made to justify ... [an order for immediate discovery], and courts presented with requests for immediate discovery have frequently treated the question whether to authorize early discovery as governed by a good cause standard.”). When determining whether expedited discovery is appropriate, the court considers the following factors: (1) whether the plaintiff has made a prima facie showing of copyright infringement; (2) the specificity of the discovery request; (3) the lack of alternative means of obtaining the information sought; (4) the need for that information to litigate plaintiff's claims; and (5) and defendants’ expectation of privacy. See Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010). The Copyright Act establishes a three-year statute of limitations for copyright claims. 17 U.S.C. § 507(b); see also Wilson v. Dynatone Publ'g Co., 892 F.3d 112, 118 (2d Cir.), reh'g denied, 908 F.3d 843 (2d Cir. 2018). Although it is unclear whether all of the offending posts were made within the three years prior to her commencing this action, it appears that many were made within that timeframe. Plaintiff has attached copyright registrations for certain images she says were posted without her permission, and most of those registrations appear to have been obtained between two and five years after the works were publicly posted. See 17 U.S.C. § 410(c) (“In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.”); see also Stern v. Lavender, 319 F. Supp. 3d 650, 669 (S.D.N.Y. 2018) (“[A] certificate of registration from the United States Register of Copyrights within five years of first publication of a work ‘constitutes prima facie evidence of the valid ownership of a copyright, although that presumption of ownership may be rebutted.’ ” (first quoting Hamil Am. Inc. v. GFI, 193 F.3d 92, 98 (2d Cir. 1999); then citing 17 U.S.C. § 410(c)). Plaintiff also has attached copies of the offending posts. Based on this, and in light of the leniency afforded to pro se litigants, the Court finds that Plaintiff has alleged sufficient facts to support at least some of her copyright infringement claims at this stage of the case. Although Defendants’ privacy rights are important, courts in this District have found that there is a minimal expectation of privacy in the sharing of copyrighted material. See Strike 3 Holdings, LLC, 2020 WL 264584, at *3. These factors weigh in favor of issuing pre-discovery subpoenas. *5 However, Plaintiff clearly has alternative means to obtain the information she seeks that do not require a subpoena. Indeed, she has named certain news organizations or listed links to their sponsored webpages, sent cease and desist letters to them, and instituted a defamation lawsuit against at least one. As to Defendant 6, she appears to have attached the name of an individual responsible for the post, one Laverne Goulbourne at LG Estates Inc., along with an address. As to these presumed defendants, there is no reason why Plaintiff could not have complied with the Court's prior orders to identify them and provide their address for issuance of a summons. This is especially so when the Court directed Plaintiff to consult with the free legal clinic available to pro se litigants in this District on multiple occasions. Thus, Plaintiff could have identified at least some defendants without a subpoena. Additionally, Plaintiff has failed to provide information specific enough to allow the Court to help her identify other defendants and assist with the issuance of subpoenas. All she has provided are weblinks, registrar emails, and contact addresses. She does not explain how or why she identified the registrar emails for each purported defendant. Nor does she identify the hosting company for the weblinks. She does not provide the name of any supposed contacts, except for Defendant 6, whom she states is LG Estates Inc. and Defendant 28, whom she identifies as New York Public Radio. A number of registrar emails appear to be email addresses that are used to report online abuse, but do not appear to relate to the potential intended defendants. For example, Defendant 28 appears to be the Gothamist, but the registrar email provided is registrar-abuse@amazon.com. Likewise, the Register email for Defendant 8, Disqus, is listed as abuse@godaddy.com. A number of the defendants have the same registrar email. For example, the registrar email for Defendants 23, 24, 26, 27, 29, 30, 36, and 37 is listed as “abuse@namecheap.com.” The registrar email for Defendants 3, 16, 17, 19, 21, and 32 is abusecomplaints@markmonitor.com. The registrar email for Defendants 6, 8, 10, 13, 14, 15, 33, and 34 is abuse@godaddy.com. None of these emails appear to be appropriate emails for service of subpoenas. For example, the Court independently looked at the godaddy.com website and observed that complaints about websites hosted on GoDaddy that are using copyrighted material without permission should be sent to copyrightcomplaints@godaddy.com. See Account Management Help, GODADDY.COM, https://www.godaddy.com/help/reporting-abuse-27154 (last accessed Mar. 10, 2020). The email abuse@godaddy.com does not appear on the GoDaddy webpage pertaining to reporting abuse. Id. The Court also independently looked at the MarkMonitor website, which states that the abusecomplaints@markmonitor.com email is for reports of abuse involving registered domain names for which it is the registrar. See MarkMonitor Abuse Policy, MARKMONITOR.COM, https://markmonitor.com/legal/abuse-policy (last accessed Mar. 10, 2020); Contact Us, MARKMONITOR.COM, https://markmonitor.com/contact (last accessed Mar. 10, 2020). Thus, this does not appear to be an email to which a subpoena could be directed. For the weblinks listed as defendants, Plaintiff should have provided the domain hosting company name, not a domain name registrar, and the physical address of the domain hosting company. Most companies will have information about where to send subpoenas. For example, the GoDaddy website provides the address for its headquarters and the address and fax number to which subpoenas should be directed. SUBPOENA POLICY/ATTORNEY TIPS, GODADDY.COM (Feb. 14, 2019), https://www.godaddy.com/legal/agreements/subpoena-policy. However, because Plaintiff has not explained why GoDaddy would have information about any particular defendant, the Court has no basis to evaluate whether a subpoena to GoDaddy would be appropriate. Thus, this Court cannot assist Plaintiff in identifying the John Doe Defendants and finds that she has not demonstrated good cause justifying the issuance of subpoenas or, much less, provided sufficient information to permit the issuance of such subpoenas. CONCLUSION *6 Given that this case has been pending for over a year and Plaintiff has continued to fail to comply with Court orders despite multiple warnings that failure to comply could result in the dismissal of her case, I respectfully recommend that this action be dismissed without prejudice. The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the Pro Se Plaintiff. NOTICE Plaintiff shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed. R. Civ. P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). Defendants shall have fourteen days to file written objections. If Defendants file written objections to this Report and Recommendation, Plaintiff may respond to the objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). If Plaintiff files written objections, defendant may respond to the objections within fourteen days. Objections and responses to objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Mary Kay Vyskocil at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Vyskocil. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). Footnotes [1] Plaintiff also contacted Gothamist and Disqus in or about November 2016 and threatened both entities with a defamation lawsuit. She ultimately sued Gothamist in or about February 2017 for defamation related to the comments and posts about her.