ROSEMARY M. COLLYER, United States District Judge.
Plaintiff Comcast Cable Communications, LLC, brought this suit seeking a declaratory judgment to determine its obligation to comply with a foreign discovery order. Comcast was served by Defendant Issam Hourani, who is a citizen of the United Kingdom and a claimant in a U.K. defamation suit, with an order from a U.K. court requiring disclosure of the name and address of the Comcast customer who used a particular Internet Protocol (IP) address on specified dates. Mr. Hourani believes that the subscriber used the IP address to defame him through internet postings. Under the Communications Act, 47 U.S.C.
Issam Hourani filed suit in London against PsyberSolutions LLC, its Chief Executive Officer Allison Blair, Alistair Thomson, and Bryan McCarthy alleging that they operated a "Campaign" to assassinate his character, portraying Mr. Hourani as a criminal involved in the abduction, false imprisonment, torture, drugging, rape, and murder of Anastasya Novikova, in Beirut, Lebanon in 2004. Hourani v. Thomson, Claim No. H14 D 05164, U.K. Compl., dated Dec 10, 2014 [Dkt. 3]. In the U.K. Complaint, Mr. Hourani alleges that (1) the defendants established websites, Facebook pages, Twitter accounts, and a YouTube channel on which they published words and images defaming Mr. Hourani by falsely connecting him to Ms. Novikova's murder; (2) the defendants organized a vigil outside Issam Hourani's London home on June 19, 2014, and a demonstration in Hyde Park and outside the Lebanese Embassy in London on November 16, 2014 (collectively, the Demonstrations) to commemorate the tenth anniversary of Ms. Novikova's death; and (3) the defendants videotaped the Demonstrations and posted the videos on the Internet. U.K. Compl. at 2-19. Mr. Hourani contends that this course of conduct, including the publication of defamatory statements, constituted defamation and harassment in violation of a British statute, section 1(1) of the "Protection from Harassment Act of 1997." Id. at 2, 26.
The U.K. Complaint is substantially similar to the complaint filed here by Issam Hourani's brother, Devincci Hourani. See Hourani v. PsyberSolutions, 15-cv-933 (RMC) (Compl. filed June 15, 2015). This Court recently dismissed Devincci Hourani's case because, among other things, he failed to allege malice as required in a defamation case where a limited-purpose public figure is a plaintiff. See id., Op. (Feb. 18, 2016); Order (Feb. 18, 2016).
On August 19, 2015, the U.K. court ordered Comcast to disclose to Issam Hourani:
U.K. Discovery Order [Dkt. 3] at 1-2. The U.K. Order further provides that Mr. Hourani may use the information produced "for the purpose of bringing proceedings for defamation and/or harassment and/or other civil proceedings against any individual or other entity thereby identified and/or assisting the Claimant to establish
Mr. Hourani served Comcast with the U.K. Discovery Order. Comcast has not complied, and counsel for Mr. Hourani threatened to pursue legal remedies against Comcast. Compl. [Dkt. 1] ¶ 2. Comcast notified the subscriber shown by Comcast's records to be the user of the IP address at the relevant times, and the subscriber indicated that it did not consent to disclosure of any of its identifying information to Mr. Hourani. Id. ¶ 3. The subscriber threatened to file suit against Comcast under 47 U.S.C. § 551(f) if Comcast disclosed the subscriber's identity. Id. As a result, Comcast filed this declaratory judgment action to determine its obligation under the U.K. Discovery Order. Comcast seeks a declaratory judgment indicating whether or not the U.K. discovery order is enforceable against it, under 28 U.S.C. § 1782 and 47 U.S.C. § 551(c).
The parties have filed cross motions for judgment on the pleadings. See Def. Mot. [Dkt. 17]; Pl. Opp'n [Dkt. 18]; Pl. Cross Mot. [Dkt. 19]; Def. Opp'n [Dkt. 20]; Pl. Reply [Dkt. 21].
Federal Rule of Civil Procedure 12(c) permits a party to file a motion for judgment on the pleadings after the pleadings are closed but early enough not to delay trial. Fed. R. Civ. P. 12(c). The standard of review on a motion for judgment on the pleadings is virtually identical to the standard for a motion under Rule 12(b)(6). United Parcel Service, Inc. v. Int'l Bhd. of Teamsters, AFL-CIO, 859 F.Supp. 590, 592, n. 1 (D.D.C.1994). A complaint must be sufficient "to give a defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). To survive a motion to dismiss or a motion for judgment on the pleadings, a complaint must contain sufficient factual matter to state a claim for relief that is "plausible on its face." See Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
A court must treat the complaint's factual allegations as true, "even if doubtful in fact." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. A court need not accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial
For this Court to declare that the U.K. Discovery Order is enforceable against Comcast, an order must be issued pursuant to 28 U.S.C. § 1782. Section 1782 provides:
28 U.S.C. § 1782. However, "[a] person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege." Id.
A district court has discretion in deciding whether to grant a § 1782 order. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 260, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004). The Supreme Court identified the following factors to consider in exercising such discretion: (1) whether the person from whom discovery is sought is a participant in the foreign proceeding; if he is, the need for a § 1782 order is not readily apparent; (2) the nature of the foreign tribunal and its proceedings and its receptivity to U.S. federal-court assistance; (3) whether the request for assistance under § 1782 conceals an attempt to circumvent foreign discovery restrictions; and (4) whether the request is unduly intrusive or burdensome. Id. at 264-65, 124 S.Ct. 2466.
Section 1782 is limited by the cable privacy provision of the Communications Act, 47 U.S.C. § 551(c). Section 551(c) provides, in relevant part, that a cable operator cannot disclose personal identifying information regarding a subscriber unless the subscriber consents or the cable operator acts pursuant to a court order with notice to the subscriber. See 47 U.S.C. § 551(c)(1) & (2)(B).
Mr. Hourani, a British citizen and a party to the U.K. defamation suit, served a subpoena issued by the U.K. court on Comcast. Mr. Hourani seeks information regarding the identity of a Comcast subscriber who used a particular IP address during a specified time period. He seeks to assert a defamation and harassment claim against the subscriber in a U.K. court. Comcast seeks a declaratory judgment that Mr. Hourani can only enforce the subpoena under § 1782 and in accordance with § 551(c) of the Communications Act.
Comcast's motion is well-founded. Sections 1782 and 551(c) clearly apply. Comcast is found in this district, and it is not a party to the U.K. proceeding. Mr. Hourani, who is a party to the U.K. case, requires this Court's assistance to enforce the U.K. Discovery Order. There is no evidence that the U.K. court would not be receptive to U.S. assistance, and there is
For the foregoing reasons, Mr. Hourani's motion for judgment on the pleadings [Dkt. 17] will be denied, and Comcast's cross motion for judgment on the pleadings [Dkt. 19] will be granted. Comcast's petition for an order pursuant to 28 U.S.C. § 1782 will be granted.
By a date to be set in the Order issued pursuant to this Opinion, Comcast shall serve the subscriber who used IP address 98.204.52.170 between 23 May 2015 and 23 July 2015 or the earliest possible time after these dates, with this Order and with the U.K. Discovery Order. Comcast shall serve notice in writing to the subscriber's last known address, via first class mail or overnight service, return receipt requested, and shall file proof of service with the Court under seal. No later than 21 days after receipt of the notice, the subscriber may appear anonymously and file a motion objecting to the disclosure of the subscriber's name and address, including any request to modify this Order. If the subscriber fails to file a timely motion or if the Court denies the subscriber's motion objecting to disclosure, the Court may order Comcast to produce the name and address of the subscriber to Mr. Hourani.
Further, Mr. Hourani shall pay Comcast the reasonable costs of (A) compiling the requested information; (B) providing notice to the subscriber; and (C) all other reasonable costs and fees incurred in responding to the U.K. Discovery Order, not to exceed $500 in total. Comcast shall provide Mr. Hourani with written notice of such reasonable costs.
A memorializing Order accompanies this Opinion.
47 U.S.C. § 551(c).