Guava LLC v. Comcast Cable Communications, LLC

Illinois Official Reports

Appellate Court

Guava LLC v. Comcast Cable Communications, LLC,
2014 IL App (5th) 130091

Appellate Court GUAVA LLC, Petitioner-Appellee, v. COMCAST CABLE
Caption COMMUNICATIONS, LLC, Respondent (John Doe 68.58.68.84,
John Doe 71.229.73.180, John Doe 67.162.81.65, John Doe
75.150.227.205, John Doe 98.213.192.42, John Doe 76.29.35.172,
John Doe 98.214.217.213, John Doe 67.167.13.99, John Doe
67.173.94.229, John Doe 98.213.182.122, John Doe 67.174.24.44,
John Doe 24.15.225.33, John Doe 71.194.189.101, John Doe
71.57.3.17, John Doe 98.213.129.83, John Doe 98.213.177.66, John
Doe 67.173.71.42, John Doe 68.57.233.25, John Doe 67.162.51.34,
and John Doe 67.167.112.22, Movants-Appellants).

District & No. Fifth District
Docket No. 5-13-0091

Filed May 20, 2014

Held In an action arising from petitioner’s attempt to obtain the identities of
(Note: This syllabus subscribers to respondent’s Internet services who allegedly used those
constitutes no part of the services to gain unauthorized access to petitioner’s protected
opinion of the court but computer system, which distributed adult entertainment to fee-paying
has been prepared by the members of the system, the trial court erred in granting petitioner’s
Reporter of Decisions request, pursuant to Supreme Court Rule 224, for discovery before
for the convenience of filing suit, since the petition failed to allege sufficient facts to support
the reader.)
a cause of action against the persons the petition sought to identify,
and, further, the trial court erred in denying the petition of the “John
Doe” subscribers, who were identified only by an Internet Protocol
address, seeking a rule to show cause and sanctions against petitioner,
especially when the underlying question in the matter was whether
petitioner intended to state a cause of action against the subscribers or
was actually seeking to harass or extort the subscribers without
forming a reasonable basis for believing that they were culpable
 parties; therefore, the trial court was directed on remand to dismiss the
petition for discovery before suit and to conduct an evidentiary
hearing on the petition for a rule to show cause.

Decision Under Appeal from the Circuit Court of St. Clair County, No. 12-MR-417;
Review the Hon. Andrew J. Gleeson, Judge, presiding.

Judgment Reversed and remanded with directions; motions denied.

Counsel on Thomas V. Leverso, of Law Offices of Thomas V. Leverso, of South
Appeal Barrington, Laura K. Beasley, of Joley, Nussbaumer, Oliver &
Beasley, P.C., of Belleville, and Erin K. Russell, of Russell Firm, of
Chicago, for appellants.

No brief filed for appellee.

Panel JUSTICE SPOMER delivered the judgment of the court, with opinion.
Presiding Justice Welch and Justice Chapman concurred in the
judgment and opinion.

OPINION

¶1 The movants, 20 “John Does” (the Doe appellants) who are identified by an Internet
Protocol address (IP address), appeal the February 21, 2013, order of the circuit court of St.
Clair County, which: (1) granted the motion of the petitioner, Guava LLC (Guava), to strike
the Doe appellants’ petition for rule to show cause and notice requiring the attendance of
certain representatives of Guava at a hearing on the petition pursuant to Illinois Supreme Court
Rule 237(b) (eff. July 1, 2005); and (2) denied the Doe appellants’ objection to the disclosure
of their personal information by the respondent, Comcast Cable Communications, LLC
(Comcast), as required by the circuit court in its December 12, 2012, order granting Guava’s
petition for discovery before suit to identify responsible persons (petition for discovery before
suit) pursuant to Illinois Supreme Court Rule 224 (eff. May 30, 2008). In addition, the Doe
appellants appeal the February 22, 2013, order of the circuit court of St. Clair County, which
gave Comcast seven days to disclose the Doe appellants’ personal information to Guava.

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¶2 The Doe appellants make the following arguments for reversal of the circuit court’s orders:
(1) that the circuit court lacked both subject matter and personal jurisdiction over the claims
and parties, (2) that Guava’s petition for discovery before suit failed to state facts that would
entitle it to discovery of the Doe appellants’ identities pursuant to Rule 224, and (3) that the
Doe appellants’ petition for a rule to show cause should have proceeded to an evidentiary
hearing requiring the presence of the representatives of Guava listed in the Doe appellants’
Rule 237(b) notice.
¶3 Guava did not file a timely appellee’s brief with this court, and on January 10, 2014, this
court denied Guava’s motion to file its brief instanter. On February 18, 2014, the Doe
appellants filed a motion for attorney fees in this court, arguing that this court should award
attorney fees to the Doe appellants based on Guava’s vexatious, frivolous, and dilatory conduct
in this case, pursuant to Illinois Supreme Court Rules 137 (eff. Jan. 4, 2013), 375 (eff. Feb. 1,
1994), and 366(a)(3) to (5) (eff. Feb. 1, 1994). This court entered an order taking the motion for
attorney fees with the case. On April 3, 2014, Guava filed a motion to strike the Doe
appellants’ motion for attorney fees and to dismiss the appeal, stating that it never received the
motion for attorney fees. In response, the Doe appellants filed signed certified mail return
receipts indicating Guava’s counsel did receive the motion. We hereby deny Guava’s motion
to strike and to dismiss the appeal.
¶4 After considering the Doe appellants’ appeal and motion for attorney fees on their merits,
pursuant to the guidance of the Illinois Supreme Court in First Capitol Mortgage Corp. v.
Talandis Construction Corp., 63 Ill. 2d 128, 131-32 (1976), we reverse the orders of the circuit
court and remand with directions that the circuit court dismiss Guava’s petition for discovery
before suit, proceed to an evidentiary hearing on the Doe appellants’ petition for a rule to show
cause, and compel the attendance of the persons named in the Doe appellants’ Rule 237 notice
to appear. Because we find that the circuit court is the proper arbiter of the Doe appellants’
allegations of frivolous pleading, fraud, identity theft, and extortion, we deny the Doe
appellants’ motion for attorney fees pursuant to Illinois Supreme Court Rules 137, 375, and
366(a)(3) to (5). However, we note that because the Doe appellants are the prevailing party in
this appeal, they may petition for their costs on appeal pursuant to Illinois Supreme Court Rule
374 (eff. Feb. 1, 1994). In addition, attorney fees on appeal can be sought in the circuit court
after the hearing on the petition for a rule to show cause.

¶5 FACTS
¶6 1. The Petition for Discovery Before Suit
¶7 On November 20, 2012, Guava filed a petition for discovery before suit pursuant to Illinois
Supreme Court Rule 224 (eff. May 30, 2008), naming Comcast as a respondent. According to
the petition for discovery before suit, Guava is “a limited liability company that operates
protected computer systems, including computer systems accessible in St. Clair County,” and
these computer systems distribute third-party adult entertainment content and generate revenue
by requiring third parties to pay a fee for accessing their distribution systems. Members are
assigned a username and password in order to access the distribution system. The petition for
discovery before suit alleged that Comcast is an Internet Service Provider (ISP) that provides
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 Internet services to certain subscribers (the Does), whom the petition seeks to identify “so that
[Guava] may file an action for computer fraud and abuse and computer tampering against
them.” With regard to venue, the petition for discovery before suit alleged that venue is proper
“because at least one of the Doe [d]efendants resides in St. Clair County” and because
“Comcast transacts business in St. Clair County.”
¶8 Attached to the petition for discovery before suit as “Exhibit A” is a list of approximately
300 IP addresses, which the petition defines as “a unique number that is assigned to Internet
users by an ISP at a given date and time.” According to the petition for discovery before suit,
these IP addresses were identified by Guava via computer security software to be associated
with individuals who used stolen usernames and passwords to gain unauthorized access to
Guava’s protected computer systems. Once the IP addresses were ascertained, Guava used a
publicly available reverse-lookup database on the Internet to determine that Comcast was the
ISP that issued the 300 IP addresses set forth in “Exhibit A.” The petition for discovery before
suit requested an order requiring Comcast to disclose personal identifying information of all of
the Comcast subscribers associated with these 300 IP addresses. In the petition, Guava states
that the alleged facts support a claim against the Does under the federal Computer Fraud and
Abuse Act (18 U.S.C. § 1030(g) (2012)), as well as a claim under section 16D-3(c) of the
Illinois Computer Crime Prevention Law (720 ILCS 5/16D-3(c) (West 2010) (now 720 ILCS
5/17-51(c) (West 2012))).

¶9 2. The Verification
¶ 10 Guava attached a verification to the petition for discovery before suit, pursuant to section
1-109 of the Illinois Code of Civil Procedure (735 ILCS 5/1-109 (West 2012)). The signature
line of the verification stated that the verification was signed by an “Alan Mony−Declarant.”
The notary stamp stated that the verification was subscribed and sworn to on November 20,
2012, the date the petition was filed, before Joshua James Marschall, a notary public in the
state of Minnesota whose commission was to expire on January 31, 2013. There were no
markings on the verification to indicate it had been faxed, and the font was different than that
of the petition. The relationship of “Alan Mony−Declarant” to Guava was not stated in the
petition or in the verification.

¶ 11 3. Comcast’s Motion to Dismiss
¶ 12 On December 10, 2012, Comcast filed a motion to dismiss, stating that Guava sought to
discover the identities of persons who did not reside in St. Clair County. Accordingly, Comcast
argued that the circuit court would not have personal jurisdiction over the individuals, nor
would the circuit court be a proper venue for an action against them. In support of its argument,
Comcast attached a printout showing the customer cities and counties for the IP addresses
listed in the petition for discovery before suit. The printout shows that the IP addresses were
associated with counties such as Will, Cook, Du Page, Winnebago, McHenry, Lake,
Sangamon, Macon, McLean, and De Kalb. Comcast further argued that even if one or more of
the individuals could be connected to St. Clair County, joinder in one suit in St. Clair County

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 would be impermissible under Illinois law, such that discovery of all of them in one petition for
discovery before suit would be improper. However, Comcast did not argue that it was not a
resident of St. Clair County or that it does not transact business there.
¶ 13 The motion to dismiss also noted that Guava did not plead that it is incorporated in Illinois,
does any business in Illinois, or is a registered foreign corporation entitled to bring claims and
lawsuits in Illinois courts. Accordingly, Comcast argued that Guava did not have standing to
bring this action for discovery before suit. In addition to its objections to Guava’s standing to
sue in Illinois, personal jurisdiction, and venue, Comcast argued that the petition for discovery
should be dismissed because the petition fails to state causes of action that could be brought
against any defendant Guava seeks to identify.
¶ 14 Comcast’s motion to dismiss outlined Guava and its counsel’s history of filing similar
lawsuits throughout the country, seeking the issuance of subpoenas to ISPs requesting that they
identify subscribers or customers to whom certain IP addresses were assigned at the time of the
alleged hacking activity. Comcast quoted a judge from the federal court for the Central District
of California, who explained, in an unpublished order, the litigation tactics that have been used
in such suits take the form of actions for copyright infringement in the federal courts. MCGIP,
LLC v. Does 1-149, No. C 11-02331 LB, 2011 WL 4352110 (N.D. Cal. Sept. 16, 2011).1
According to the California court, in these cases, a plaintiff sues anywhere from a few to
thousands of Doe defendants for copyright infringement in one action and seeks leave to take
early discovery. Id. at *4 n.5. Once the plaintiff obtains the identities of the IP subscribers
through early discovery, it serves the subscribers with a settlement demand. Id. The
subscribers, often embarrassed about the prospect of being named in a suit involving
pornographic movies, settle. Id. Comcast argued that Guava did not intend to institute an action
against the Does, and thus, instituted this action for an improper purpose.

¶ 15 4. The Circuit Court’s Initial Order
¶ 16 On December 12, 2012, the circuit court entered an order denying Comcast’s motion to
dismiss and granting Guava’s petition for discovery before suit. The order did not address
Comcast’s arguments regarding personal jurisdiction, venue, standing, or the insufficiency of
1
The Honorable Otis D. Wright II, a judge for the federal district court for the Central District of
California, in an order issuing sanctions against, inter alia, Paul Duffy, Guava’s counsel in this case,
characterized the attorney for MCGIP, LLC, Brett Gibbs, as a “redshirt” being controlled by several
attorneys, including Duffy. Ingenuity 13 LLC v. Doe, No. 2:12-cv-8333-ODW, 2013 WL 1898633,
at *1 (C.D. Cal. May 6, 2013). Although this order issuing sanctions is not contained in the record on
appeal, because it was entered after the notice of appeal was filed, this court, in an order dated July 23,
2013, took judicial notice of the contents of the order pursuant to Vulcan Materials Co. v. Bee
Construction, 96 Ill. 2d 159, 166 (1983). However, it is important to note that, for the purposes of this
opinion, this court takes judicial notice of the contents of the motion for sanctions and any other
unpublished orders of other courts, not as proof of the findings of fact contained therein, but only as
proof of the fact that such an order exists to provide context for the allegations made in the petition for
rule to show cause and the circuit court’s order denying same. See id. (a court may not take judicial
notice of facts contained in pleadings in a case not involving the same parties).
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 the causes of actions that Guava claimed to have against the Does. The order required Comcast
to provide all of the Does with copies of the petition and order by December 26, 2012. Any
Doe seeking to file an objection or a motion to quash, dismiss, or sever was required by the
order to do so by filing such a pleading with the clerk of the circuit court by January 25, 2013.
Except as to those subscribers who filed such a pleading by that date, Comcast was ordered to
provide Guava, by January 30, 2013, with the name, address, phone number, email address,
2
and Media Access Control (MAC) address for each of the Does to whom Comcast assigned
an IP address as set forth in Exhibit A of the petition. Comcast was ordered to withhold the
identifying information for any objecting Doe, pending resolution by the circuit court of the
objections. All objections were set for hearing on February 13, 2013.

¶ 17 5. The Doe Objections and Petition for Rule to Show Cause
¶ 18 Forty-five Does filed objections to the circuit court’s order that their personal information
be disclosed to Guava. On January 14, 2013, one of the Does, identified by IP address number
68.58.68.84, filed a “Petition For Rule to Show Cause Why Petitioner Guava, LLC a/k/a
Lightspeed Media, Its Officers and Directors, Declarant Alan Moay, Steve Jones, Paul A.
Duffy and/or Kevin T. Hoerner Should Not Be Held in Contempt of Court And For Other
3
Sanctions” (petition for rule to show cause). According to the petition for rule to show cause,
Guava is, upon information and belief and according to the government of St. Christopher
(Kitts) and Nevis, as well as Lightspeed’s own prior lawsuits, a wholly or partially owned
subsidiary of Lightspeed Media Corporation (Lightspeed) seeking to enforce rights as to what
Lightspeed purports is copyrighted adult material. Lightspeed is an Arizona-based corporation
organized under the laws of the State of Arizona.
¶ 19 The petition for rule to show cause alleged that Guava’s counsel, Paul Duffy, was
previously associated with Prenda Law, LLC, a Chicago-based law firm which has filed
hundreds of copyright infringement lawsuits across the country alleging that ISP subscribers
illegally downloaded pornography, including a federal case interlinked with a fraudulent
affidavit issue concerning an “Alan Cooper.”4 The petition for rule to show cause alleged that

2
A MAC address is a hardware identification number that uniquely identifies each device on a
network and is manufactured into every network card, such as an Ethernet card or Wi-Fi card, and
therefore cannot be changed. TechTerms.com, http://www.techterms.com/definition/macaddress (last
visited Mar. 5, 2014).

3
We note that the petition for rule to show cause and all of its attachments refer to the name on the
signature line of the verification attached to Guava’s petition for early discovery as “Alan Moay.” As
stated above, the name on the signature line of the verification attached to Guava’s petition originally
filed in the record is “Alan Mony.”

4
Judge Otis Wright, in his order issuing sanctions in Ingenuity 13 LLC, found that Paul Duffy,
along with other attorneys associated with the former Prenda Law, stole the identity of Alan Cooper, a
groundskeeper for one of the attorneys, and fraudulently signed his name to a copyright assignment,
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 the verification attached to Guava’s petition for discovery before suit contained a false
notarization that lacked the notary’s printed name, notary stamp, jurisdiction, and commission
number, and that an exhaustive set of skiptrace and other reports confirmed that “Alan Moay”
5
was a bogus name. The petition for rule to show cause pointed out additional irregularities in
the verification, which this court has noted above, including the difference in the font and the
fact that there were no facsimile time stamps on the verification, despite the fact that it was
dated on the day of filing.
¶ 20 In addition to the irregularities in the verification, the petition for rule to show cause
alleged that Guava’s filing of the petition for discovery before suit was frivolous because
Guava had admitted in federal court that identifying a subscriber associated with an IP address
does not necessarily identify an alleged “hacker.” Finally, the petition for rule to show cause
accused Guava of extorting the information received pursuant to the circuit court’s order by
sending settlement demand letters to such subscribers before ascertaining their actual
involvement with the alleged hacking activity. The petition for rule to show cause requested
that the circuit court find officers of Lightspeed and/or Guava, as well as “Alan Moay” or the
declarant referred to in the verification, Paul Duffy, and Kevin Hoerner to be found in criminal
contempt of court as well as civil contempt, award attorney fees and costs, notify the Office of
the Attorney General and/or United States Attorney’s Office, refer Paul Duffy and Kevin
Hoerner to the Illinois Attorney Registration and Disciplinary Commission, dismiss the
petition for discovery before suit, and impose whatever sanctions and other relief as the circuit
court deems just.
¶ 21 The petition for rule to show cause was supported by several exhibits. We set forth the
content of these exhibits at some length in order to provide context for the allegations that are
made in the petition for rule to show cause. The exhibits included pleadings in a federal court
case from the Central District of California, captioned Ingenuity 13 LLC v. Doe, No.

holding him out to be an officer of AF Holdings, when he had no such affiliation. Ingenuity 13 LLC v.
Doe, No. 2:12-cv-8333-ODW, 2013 WL 1898633 (C.D. Cal. May 6, 2013). Judge Wright found that
Duffy conspired with the other attorneys to form AF Holdings and Ingenuity 13, along with other
entities, for the sole purpose of litigating copyright-infringement lawsuits and that these entities,
created off-shore, have no assets other than several copyrights to pornographic movies, and that there
are no owners and officers, making Duffy and the other attorneys de facto owners and officers. Id.

5
As outlined earlier in this opinion, the verification page attached to Guava’s petition for discovery
before suit does contain the notarization statement, the notary’s printed name, stamp, jurisdiction, and
commission number, and the signature line reads “Alan Mony” and not “Alan Moay.” From the copy
John Doe 68.58.68.84 appended to its petition for rule to show cause, which was provided by Comcast
pursuant to the circuit court’s December 12, 2012, order, it does appear that these elements of the
notarization are missing and that the signature line reads “Alan Moay,” which could be due to loss of
clarity from Comcast’s copying of the orders and distributing them to the Does. In any event, due to the
discrepancy, the skiptrace and other reports appended to the petition for rule to show cause resulted
from a search for a person named “Alan Moay,” and not “Alan Mony,” so have no relevance to the issue
of whether the person who purportedly signed the verification actually exists.
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 2:12-cv-08333-DMG-PJW. From the pleadings, it appears that the John Doe in that case filed
through counsel, Morgan Pietz,6 an ex parte application for leave to take early discovery and
to stay the return date on an outstanding ISP subpoena seeking the John Doe’s identity. The
ex parte application sought to propound a series of special interrogatories and document
requests to Ingenuity 13 LLC and its counsel, Prenda Law. The interrogatories and document
requests sought to identify “Alan Cooper,” a person they claimed to be the true principal of
Ingenuity 13 LLC, to confirm that such a person actually existed and had an actual relationship
with Ingenuity 13 LLC. According to the ex parte application, there was reason to believe that
Prenda Law had misappropriated Alan Cooper’s identity without his knowledge and consent,
holding him out in federal filings to be the principal of Ingenuity 13 LLC, which the
application alleged was a shell entity organized in St. Kitts and Nevis. In addition, the
application stated that circumstances seemed to suggest that the plaintiff’s lawyers were the
real but undisclosed parties in interest.7
¶ 22 On January 25, 2013, an objection to the order requiring Comcast to disclose the Does’
identities was filed by two of the Doe appellants, by and through their counsel, Morgan Pietz,
an attorney from California. One of the objections to the petition for early discovery contained
in that motion to quash is that the petition for early discovery fails to plead specific facts
showing jurisdiction and venue are proper in St. Clair County. The motion to quash pointed out
that the petition for early discovery alleges that at least one of the Does lives in St. Clair
County. Although Exhibit A to the petition for early discovery lists over 300 IP addresses
allegedly associated with hacking activity, it does not identify geographic locations associated
with these IP addresses or identify which, if any, of these IP addresses have actually been
geo-located to St. Clair County. The motion to quash alleged that geo-location of an IP address
to a particular geographic area, generally a given town, is easily accomplished using publicly
available websites. The motion to quash alleged that Prenda Law routinely used these tools in
other lawsuits, and indeed, must have used the tool here for this case in order to group together
IP addresses from Illinois. As explained above with regard to Comcast’s motion to dismiss,
none of the IP addresses were associated with St. Clair County.
¶ 23 The affidavit of Morgan Pietz was also filed on January 25, 2013. According to the
affidavit, Mr. Pietz is an attorney licensed in California who represents ISP subscribers who
have been targeted by Ingenuity 13 LLC, through its counsel Prenda Law, formerly known as
Steele Hansmeier, in copyright infringement cases that Ingenuity 13 filed in both the Central
District of California and the Northern District of California. Mr. Pietz averred that he also
represents other clients in other cases brought by Prenda Law on behalf of other entities,

6
Morgan Pietz is also counsel in this case for one of the Doe appellants.

7
As previously mentioned, in a later order, the district court found the allegations to be true and
ordered sanctions against all of the attorneys it found to have been involved, including Paul Duffy,
Guava’s counsel in this case. Ingenuity 13 LLC v. Doe, 2013 No. 2:12-cv-8333-ODW, 2013 WL
1898633 (C.D. Cal. May 6, 2013).
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 sometimes along with local counsel, in other courts. This includes cases brought by Prenda on
behalf of Lightspeed Media Corporation and Guava.
¶ 24 Mr. Pietz’s affidavit outlines the history of Prenda Law, which he avers was headed by
Paul Duffy, Guava’s counsel in this case. Mr. Pietz’s affidavit details his knowledge of Prenda
Law’s use of “a stream of unrelenting, debt collector style harassment designed to pressure ISP
subscribers to quickly settle their cases” where courts have allowed Prenda to utilize the
subpoena power to obtain subscriber information from ISPs. According to Mr. Pietz’s
affidavit, Prenda has used settlement demand letters and machine-dialed phone calls made by
people who “are similar to professional telemarketers or debt collectors, who often work from
specific guidelines, and are possibly paid on commission,” to induce ISP subscribers to settle.
¶ 25 Mr. Pietz’s affidavit also directs the circuit court’s attention to AF Holdings LLC v. Doe,
No. C 12-2049 PJH, 2013 WL 97755 (N.D. Cal. Jan. 7, 2013), in which Brett Gibbs, “of
counsel” for Prenda Law, filed on behalf of AF Holdings a complaint against 135 Doe
defendants, identified only by IP addresses, alleging that each of them had infringed AF
Holdings’ copyright by illegally downloading a pornographic video. AF Holdings requested
expedited discovery in order to discover the identity of the subscribers associated with the IP
addresses, which was granted. Id. at *1. On January 19, 2012, noting that more than 150 days
had expired since the order authorizing expedited discovery was entered, the court issued an
order to show cause why the Doe defendants should not be dismissed based on AF Holdings’
failure to effectuate service on any identified Doe. Id. On February 22, 2012, the court ordered
AF Holdings to provide supplementary information. Attached to Mr. Pietz’s affidavit is what
Mr. Pietz purports to be a report that Brett Gibbs filed in response to the court’s order, which
discloses that over the 18 months prior, Prenda Law, formerly known as Steele Hansmeier, had
filed 118 multiple-defendant cases, against 15,878 Doe defendants, but had served none of the
John Does in any of the cases.
¶ 26 In his affidavit, Mr. Pietz also refers to instances where Brett Gibbs, in an attempt to
request an extension of time to serve John Does in the federal cases, has explained to the
federal courts that his failure to serve the John Does should be excused because he could not
form the “reasonable basis” under federal rules necessary to support a factual allegation that an
ISP subscriber is the actual person who downloaded the copyrighted material without some
kind of further discovery beyond the mere fact that a person happens to pay the Internet bill.
¶ 27 For example, in Boy Racer, Inc. v. Does 1-52, No. 11-CV-2329-PSG, 2011 WL 7402999
(N.D. Cal. Sept. 13, 2011), which is referenced in Mr. Pietz’s affidavit, the court ordered the
plaintiff, who was represented by Brett Gibbs as “of counsel” for Prenda Law, to show cause
why the court should not dismiss its claims for lack of service. In that case, counsel told the
court, in applying for an order allowing early discovery of the names and addresses of the ISP
subscribers associated with specific IP addresses, that “ ‘[t]he only way that Plaintiff can
determine Defendant[s’] actual names is from the ISPs to which Defendants subscribe and
from which Defendants obtain Internet access,’ ” and that “ ‘[t]hrough the information they
gather from the ISPs via these subpoenas, the plaintiffs are able to fully identify–i.e. retrieve
name, address, telephone number, e-mail address, and [MAC] information–each *** network
user suspected of violating the plaintiff’s copyright.’ ” (Emphases in original.) Id. at *1.
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 However, the plaintiff later admitted that, its previous representation notwithstanding, the
subpoenas were not sufficient to fully identify the network user suspected of violating the
plaintiff’s copyright, but rather, the plaintiff would require nothing less than an inspection of
the subscriber’s electronically stored information and tangible things, including each of the
subscriber’s computers and the computers of those sharing his Internet network. Id. at *2.
¶ 28 The court concluded, from Brett Gibbs’s admissions in response to the court’s inquiry as to
why no defendant had been served, that the identifying information of the ISP subscriber does
not tell the plaintiff who illegally downloaded the plaintiff’s works, and, therefore, who the
plaintiff will name as the defendant in the case, but rather, that the copyright infringer, and
proper defendant, could be the subscriber, or another member of his household, or any number
of other individuals who had direct access to the subscribers’ network. Id. The court found that
presumably, every desktop, laptop, smartphone, and tablet in the subscriber’s residence, and
perhaps any residence of any neighbor, houseguest, or other sharing his Internet access, would
be fair game. Id. Finding that such an extensive, expensive, and highly intrusive “fishing
expedition” was outside the purview of federal expedited discovery rules, which only allow for
early discovery where the requested discovery would clearly uncover the identities sought, the
court withdrew its order granting limited discovery, denied any pending or proposed requests
for further discovery, and ordered the plaintiff to show cause why the court should not dismiss
the action for failure to effectuate service on the defendants. Id. at *3.
¶ 29 Another notable attachment to Mr. Pietz’s affidavit is the transcript of a motion hearing
before the federal district court for the middle district of Florida in a case captioned Sunlust
Pictures, LLC v. Nguyen, No. 8:12-CV-1685 (Sunlust), dated November 27, 2011. In the
transcript, local counsel for Prenda Law, Jonathon Torres, was questioned by the court under
oath regarding Prenda Law’s relationship with the plaintiff, Sunlust Pictures, LLC (Sunlust),
and the identity of the corporate representative that appeared on behalf of Sunlust Pictures,
Mark Lutz. Mr. Torres testified that he was contacted by Brett Gibbs and asked to act as local
counsel, but that his understanding was that Prenda Law was representing Sunlust and that
Paul Duffy is a principal of Prenda Law. The court indicated that this statement was contrary to
a letter the court had received from Paul Duffy stating that he was not representing Sunlust.
¶ 30 In addition to the questions regarding Prenda Law and Paul Duffy’s involvement in the
Sunlust case, Mark Lutz testified that he is not an officer of Sunlust but was hired to appear in
court and to represent himself as a corporate representative. He was not aware of the identity of
the president, vice president, secretary, or any other corporate representative. He testified that
he also serves in this capacity for Guava, the plaintiff in this case. The court granted local
counsel’s motion to withdraw and dismissed the case for the plaintiff’s failure to appear at the
hearing, failure to present a lawful agent, and attempted fraud on the court by offering up a
person who had no authority to act on behalf of the corporation as a corporate representative.
The court also indicated it would hear a motion for sanctions against Paul Duffy for his lack of
candor in relation to his connection with the case.
¶ 31 On February 11, 2013, Paul Duffy and Kevin Hoerner filed, on behalf of Guava, a series of
responses to the various objections of the Does and the petition for rule to show cause. One of
the responses states: “[U]nknown individuals hacked into Petitioner’s computer systems and
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 gained unauthorized access to private and protected information. Petitioner does not know the
true identities of these individuals, but has identified the individuals by the [IP] addresses
***.” That response goes on to state, “In order to identify these unknown individuals and bring
a lawsuit against them, Petitioner sought to identify them through a Petition for Discovery
before suit ***.” That response also makes the representation that “Movants will get a chance
to raise their arguments once they are named defendants in a lawsuit.” The response did not
address the allegations made in the petition for rule to show cause.
¶ 32 Another response, signed by Kevin Hoerner, addressed John Doe 68.58.68.84’s argument
regarding the possibility that the verification on the petition for discovery before suit was a
forgery by stating: “Alan Mony, not ‘Moay’ verified the Petition. Furthermore, [the
verification] was notarized by a notary public. If Movant seeks to challenge the Petition,
(which as a nonparty he may not), he should focus on the actual person signing and the fact it
was notarized.”
¶ 33 Although not a Doe appellant, it is worth noting that one of the Does who filed an objection
to the circuit court’s order requiring Comcast to disclose the identity of the IP address
subscribers was an “entity” Doe identified by IP address 50.77.161.249. In its motion to quash
the “entity,” Doe alleged that it is a social service, nonprofit organization that assists
individuals and families with their housing and financial needs. It owns and maintains a
number of computers that are utilized by its employees and provided for public and client use
over a wireless network. The entity Doe also pointed out that it is possible for hackers to
“spoof” existing IP addresses, which will register a false IP address when a hacker accesses a
website, causing their activities from a completely different location to appear to come from an
innocent person’s location. Additionally, wireless routers, which allow persons to connect to a
computer accessing the Internet from a remote device over the airwaves, and to access the
Internet through the connection assigned with the IP address to that computer’s connection, are
commonplace. Wireless routers may be accessed from across the street, down the block, and in
some cases even farther away, according to the motion to quash.
¶ 34 On February 4, 2013, John Doe 68.58.68.84 filed a notice to produce pursuant to Illinois
Supreme Court Rule 237 (eff. July 1, 2005), commanding Guava to produce the following
8
persons for all hearings on contempt and sanctions: (1) Alan Moay ; (2) Paul Duffy; (3) Kevin
9
Hoerner; (4) Steve Jones ; and (5) any and all officers, directors, managers, and other Guava
and Lightspeed personnel responsible for filing the petition for discovery before suit.
¶ 35 On February 7, 2013, two Does, identified by IP addresses 67.162.51.34 and 71.57.3.17,
filed a motion for a protective order alleging that because their objection to the circuit court’s
order contained a typographical error regarding their IP address, their information was

8
Again, this was a misspelling of the name on the signature line of the verification of the petition for
discovery before suit, probably due to fading during copying and distribution by Comcast. The
signature line on the original verification contained in the record is “Alan Mony.”

9
Steve Jones is the registered agent for Lightspeed listed in the Arizona Secretary of State records.
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 disclosed to Guava. The motion for a protective order stated that one of the Does had received
a settlement demand letter from Guava as a result of the disclosure.
¶ 36 On February 12, 2013, John Steele of Prenda Law filed an entry of appearance on behalf of
Guava. The Doe movants and Guava appeared at a hearing on February 13, 2013. Kevin
Hoerner and John Steele appeared on behalf of Guava. Morgan Pietz appeared on behalf of two
of the Doe appellants. Mr. Pietz presented a redacted copy of a settlement demand letter that
was received by a Doe whose information was disclosed by Comcast pursuant to the circuit
court’s initial order. The letter was dated January 30, 2013, and informs the Doe that his or her
Internet account was observed distributing stolen files and that based on this information,
Guava “will seek to hold you (or the person who used your Internet account) liable for this
conduct.” The letter further states, “[I]f we are forced to proceed against you individually for
the acts we observed your subscriber account committing, the actual complaint naming you as
a defendant could possibly include additional counts ***.” After explaining the potentially
high costs of litigation, the letter explains that Guava is willing to discuss resolution of the
claims, but the amount that it would be willing to accept to resolve the matter would increase
over time. The letter concludes with the following statement: “PLEASE BE ON NOTICE: Due
to the serious nature of this matter, we are referring this matter to our attorneys for further
prosecution against you in 21 days if we do not hear from you.” Attached to the letter is a
document entitled “Notice of Offer of Settlement.” The document states that Guava believes
that, “due to several factors, including our good faith offer to settle at this early stage of the
case, we would be entitled to full damages,” and that “[i]n exchange for a comprehensive
release of all legal claims in this matter, which will enable you to avoid becoming a named
defendant in a lawsuit, we will accept, $4,000.” The Doe can send a check or money order
payable to Guava or complete and fax a credit card payment authorization. Once Guava has
processed the payment, Guava states that it will send a signed release as confirmation that the
payment has been processed.
¶ 37 After some argument regarding whether the Doe movants were entitled to file a notice to
appear pursuant to Illinois Supreme Court Rule 237 (eff. July 1, 2005), to compel Guava’s
representatives and attorneys responsible for filing the petition for discovery before suit to
attend a hearing on the petition for rule to show cause, the hearing was continued to February
21, 2013.
¶ 38 On February 15, 2013, a number of the Doe movants filed a consolidated reply in support
of their objections to the circuit court’s order requiring Comcast to disclose their identities. In
the consolidated reply, the Doe movants alleged that “Alan Mony,” who Guava, in its response
to the objections, stated had signed the verification of the petition for discovery before suit on
its behalf, was also a bogus name, and that there is no record of such a person. The Doe
movants stated in their consolidated reply that the closest name found anywhere in the United
States is an “Allan Mony.” The consolidated reply points out, however, that a man named
“Allan Mooney” has previously been listed as the manager of MCGIP, LLC, “one of Prenda’s
earlier mysterious shell company plaintiffs (which Prenda’s lawyers probably own).” The
consolidated reply further states that a man using the email address “amooney29@gmail.com”
is apparently involved in the online adult entertainment business, per an “Adult Industry” news
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 article where Allan Mooney was selling the domain name “orgasms.com.” Finally, the
consolidated reply states that there is an “Allan Mooney” who is a current client of Alpha Law,
a new law firm name being used by John Steele’s former or current law partner, Paul
Hansmeier. These allegations are supported by exhibits attached to the consolidated reply.

¶ 39 6. February 21, 2013, Hearing
¶ 40 A hearing on all pending motions was held on February 21, 2013. From the bench, the
circuit court ordered Guava’s counsel, John Steele and Kevin Hoerner, to give the Doe
movants the correct name and spelling of the person who signed the verification on the petition
for discovery before suit. John Steele stated that he had prepared an affidavit that was notarized
by a different notary and signed by “Alan Mooney,” attesting to the fact that Alan Mooney
signed the previous verification, which contained a typographical error on the signature line.
This affidavit is more specific than the original verification, stating, “[M]y company is
suffering severe financial loss due to the criminal activity outlined in the petition and I believe
it is my responsibility as a principal of Guava, LLC to seek redress in the courts.” This is the
first statement in any of the pleadings purporting to identify a corporate officer of Guava.
¶ 41 From the bench, the circuit court stated that it did not believe the Doe movants were
necessary parties to the litigation, and therefore they could not file a notice to appear pursuant
to Illinois Supreme Court Rule 237 (eff. July 1, 2005). The circuit court limited the issues to be
argued at the hearing to those directly related to the Does’ objections to the disclosure of the
information sought in the petition for discovery before suit pursuant to Illinois Supreme Court
Rule 224 (eff. May 30, 2008), precluding the Doe movants from making arguments relating to
jurisdiction, venue, standing, or their petition for rule to show cause.
¶ 42 With regard to the arguments on the merits of the petition for discovery before suit, that
Guava had not stated a proper claim against the Does under either the federal Computer Fraud
and Abuse Act (18 U.S.C. § 1030(g) (2012)) or section 16D-3(c) of the Illinois Computer
Crime Prevention Law (720 ILCS 5/16D-3(c) (West 2010) (now 720 ILCS 5/17-51(c) (West
2012))), the circuit court expressed its belief that these arguments should be addressed if and
when a suit is actually filed against one of the Does. The circuit court ruled that Guava had
made a showing that the IP addresses and people who are responsible for them may be
responsible for Guava’s damages.

¶ 43 7. The Circuit Court’s Orders
¶ 44 The circuit court’s order, entered that same day, states that Guava’s “motion to strike Does’
Rule 237 Notice, including all requests therein, is allowed, including the Petition for Rule.”
The order also stated: “All Doe objections to the disclosure of identifying information are
overruled and denied. The identifying personal information shall be limited to cases involving
Guava, LLC and shall be limited prospectively. The date for disclosure by Comcast will be set
forth in a supplemental order of this Court.” On February 22, 2013, the circuit court entered an
order granting Comcast seven days from the date of the order to disclose the identifying
information of the Doe movants.

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¶ 45 On February 26, 2013, one of the Doe movants, identified by IP address 68.58.68.84, filed
a motion for reconsideration. In addition, the Doe appellants filed a motion to stay the
judgment pending a hearing on the motion for reconsideration and the outcome of an appeal.
On March 1, 2013, the circuit court denied the motion for stay. The record does not contain a
ruling on the motion for reconsideration.

¶ 46 8. Proceedings on Appeal
¶ 47 On March 1, 2013, the Doe appellants filed a notice of appeal from the circuit court’s
orders of February 21 and 22, 2013. That same day, the Doe appellants filed an emergency
motion to stay the judgment pending appeal, which this court granted. See Ill. S. Ct. R. 305
(eff. July 1, 2004). The Doe appellants filed their opening brief on August 12, 2013, and
Guava’s brief was due September 16, 2013. No brief was filed, and on October 1, 2013, this
court sent Guava, through their attorneys of record, Paul Duffy and Kevin Hoerner, a notice
that the brief was overdue.
¶ 48 On October 8, 2013, Kevin Hoerner responded to this court’s notice that Guava’s brief was
overdue by filing a motion for leave to withdraw as attorney of record for Guava, stating that
he had not been retained by Guava to defend this appeal. The Doe appellants filed an objection
to Kevin Hoerner’s motion, arguing that Hoerner’s conduct in filing a nonmeritorious lawsuit
and filing false pleadings and documents was at issue in this appeal, and as such, he should
only be permitted to withdraw as an attorney of record if he remains subject to the jurisdiction
of this court and the circuit court for his conduct. This court granted Kevin Hoerner leave to
withdraw as counsel of record for purposes of this appeal on November 1, 2013.
¶ 49 Paul Duffy filed a motion seeking an extension of time to file a brief on behalf of Guava on
October 10, 2013, which this court granted. However, a brief was never filed. On December 5,
2013, this court sent another letter to Paul Duffy stating that this case would be decided on the
basis of the record on appeal and the appellants’ brief, which were filed with this court. On
December 19, 2013, this court received a motion by Paul Duffy to file a brief on behalf of
Guava instanter. In the motion, Paul Duffy claimed that he prepared a brief and mailed it on
November 7, 2013, and that the brief must be “lost in the mail,” despite the fact that no one had
ever checked out the record on appeal on behalf of Guava. This court denied Guava’s motion to
file a brief instanter on January 10, 2014.
¶ 50 On February 18, 2014, the Doe appellants filed, in this court, a motion for attorney fees
pursuant to Illinois Supreme Court Rules 137 (eff. Jan. 4, 2013), 375 (eff. Feb. 1, 1994), and
366(a)(3) to (5) (eff. Feb. 1, 1994). The basis for the motion for attorney fees is essentially the
same as that set forth in the petition for rule to show cause that the Doe appellants filed in the
circuit court. The Doe appellants argued that this court should make the award of attorney fees
based on Guava’s filing of the petition for discovery before suit, which contained what the Doe
appellants assert are false allegations concerning the nature of IP addresses, the subscribers’
alleged acts, and the existence of actual damages. The Doe appellants also assert that the
falsified and forged verification also provides a basis for this court to award attorney fees.
Guava did not file a response to the motion for attorney fees. On March 5, 2014, this court
entered an order taking the Doe appellants’ motion for attorney fees with the case. On April 3,
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 2014, Guava filed a motion to strike the Doe appellants’ motion for attorney fees and a motion
to dismiss the appeal.

¶ 51 ANALYSIS
¶ 52 Although Guava did not file an appellee’s brief in this case, this court may not reverse the
judgment of the circuit court pro forma. First Capitol Mortgage Corp. v. Talandis
Construction Corp., 63 Ill. 2d 128, 131 (1976). Instead, this court must examine the points
raised by the appellant to see if a reversal is merited. Id. at 132. We may reverse the judgment
of the circuit court if we find that the appellant’s brief demonstrates prima facie reversible
error and the contentions in the brief find support in the record. Id. at 133. With these principles
in mind, we consider the issues raised by the Doe appellants on appeal.

¶ 53 1. The Rule 224 Petition for Discovery Before Suit
¶ 54 The first two issues raised on appeal concern the propriety of the order granting Guava’s
petition for discovery before suit. Ill. S. Ct. R. 224 (eff. May 30, 2008). First, the Doe
appellants argue that the circuit court lacked subject matter and personal jurisdiction over the
claims and parties. Second, the Doe appellants argue that Guava was not entitled to discovery
before suit pursuant to Rule 224 because the petition did not allege a sufficient cause of action
against the Does and did not seek to identify the Does for purposes of instituting an action
against them. We will address each of these issues in turn.

¶ 55 a. Subject Matter Jurisdiction
¶ 56 First, the Doe appellants argue that although Guava attempts to state a claim under the
federal Computer Fraud and Abuse Act (18 U.S.C. § 1030(g) (2012)), as well as a claim under
section 16D-3(c) of the Illinois Computer Crime Prevention Law (720 ILCS 5/16D-3(c) (West
2010) (now 720 ILCS 5/17-51(c) (West 2012))), it is really attempting to state a claim
involving federal copyright law, over which the federal courts have exclusive jurisdiction. See
17 U.S.C. § 301(a) (2012). Because this issue presents a question of law, and the circuit court
decided the issue solely on the basis of documents on file, our standard of review is de novo.
Ploense v. Electrolux Home Products, Inc., 377 Ill. App. 3d 1091, 1096 (2007).
¶ 57 Illinois circuit courts are courts of general jurisdiction having original jurisdiction over all
justiciable controversies, except (1) cases over which the federal courts have exclusive
jurisdiction; (2) matters committed to administrative tribunals; and (3) those matters
committed by the Illinois Constitution to the exclusive jurisdiction of the Illinois Supreme
Court. See Cohen v. McDonald’s Corp., 347 Ill. App. 3d 627, 632-33 (2004). Guava filed its
petition pursuant to Illinois Supreme Court Rule 224 (eff. May 30, 2008), which allows for
discovery before suit of persons who may be responsible for damages. While, as explained in
further detail below, the nature and propriety of the underlying causes of action that Guava is
attempting to state against the Doe appellants is germane to whether the Rule 224 petition
should have been granted, such a determination does not affect the circuit court’s power to rule
on the Rule 224 petition, which, in and of itself, does not fall into the exclusions to the original
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 jurisdiction of the circuit courts of Illinois as outlined above. Accordingly, we find that the
circuit court did have subject matter jurisdiction over Guava’s Rule 224 petition for discovery
before suit.

¶ 58 b. Personal Jurisdiction
¶ 59 The next argument that the Doe appellants make in their brief is that the circuit court lacked
personal jurisdiction over Comcast and the Does. Again, our standard of review is de novo.
Ploense, 377 Ill. App. 3d at 1096. Referencing the requirement in Illinois Supreme Court Rule
224 that “[t]he action for discovery shall be initiated by the filing of a verified petition in the
circuit court of the county in which the action or proceeding might be brought or in which one
or more of the persons or entities from whom discovery is sought resides” (Ill. S. Ct. R.
224(a)(1)(ii) (eff. May 30, 2008)), the Doe appellants argue that neither Comcast nor the Does
reside in St. Clair County. Although, for reasons detailed below, we find Guava’s allegations
as to the residence of the Does to be troubling and to merit further inquiry, we find that this
provision of Rule 224 is a statutory venue provision, rather than a provision relating to
personal jurisdiction. Jurisdiction and venue are distinct legal concepts, as jurisdiction relates
to the power of a court to decide the merits of a case, while venue determines where the case is
to be heard. Baltimore & Ohio R.R. Co. v. Mosele, 67 Ill. 2d 321, 328 (1977). Statutory venue
requirements are procedural only and do not have any relation to the question of jurisdiction.
Id. For these reasons, and because Comcast made no objection to the circuit court’s personal
jurisdiction over it, we cannot say that the circuit court lacked personal jurisdiction over
Comcast, the named defendant in the Rule 224 action. By providing that Comcast give the Doe
appellants notice and an opportunity to object, the circuit court essentially granted the Doe
appellants leave to intervene in this action. The Doe appellants, in turn, availed themselves of
the personal jurisdiction of the circuit court by entering an appearance and filing an objection.
Accordingly, we will turn to the merits of the Rule 224 petition.

¶ 60 c. The Merits of the Rule 224 Petition
¶ 61 Illinois Supreme Court Rule 224 provides that “[a] person or entity who wishes to engage
in discovery for the sole purpose of ascertaining the identity of one who may be responsible in
damages may file an independent action for such discovery.” Ill. S. Ct. R. 224(a)(1)(i) (eff.
May 30, 2008). The petition must be verified and must set forth “(A) the reason the proposed
discovery is necessary and (B) the nature of the discovery sought.” Ill. S. Ct. R. 224(a)(1)(ii)
(eff. May 30, 2008). We review an order granting or denying a Rule 224 petition for an abuse
of discretion. Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, ¶ 12.
¶ 62 Our courts have held that in order to protect an anonymous individual from an improper
inquiry into his or her identity, a Rule 224 petition must state with particularity the facts
necessary to state a cause of action against the individual whose identity is sought. Id. ¶ 17
(citing Maxon v. Ottawa Publishing Co., 402 Ill. App. 3d 704, 711 (2010)). More particularly,
the facts outlining the causes of action that the petitioner has against the person whose identity
is sought must be sufficient to overcome a motion to dismiss pursuant to section 2-615 of the

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 Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)), although the unidentified
individual is not required to file such a motion. Stone, 2011 IL App (1st) 093386, ¶ 18. Rather,
if the petitioner cannot satisfy the section 2-615 standard of pleading in its Rule 224 petition
for early discovery, then the petitioner has not made an adequate statement that the discovery is
“necessary” as required by the Rule. Id.
¶ 63 On appeal, the Doe appellants argue, and we agree, that Guava’s petition for discovery
before suit does not meet the pleading requirements of Rule 224. We find it unnecessary to
address the Doe appellants’ arguments regarding whether the petition states facts sufficient to
constitute a cause of action under either the federal Computer Fraud and Abuse Act (18 U.S.C.
§ 1030(g) (2012)) or section 16D-3(c) of the Illinois Computer Crime Prevention Law (720
ILCS 5/16D-3(c) (West 2010) (now 720 ILCS 5/17-51(c) (West 2012))) because, contrary to
the allegations of the petition that the subscribers to the IP addresses are responsible for
hacking into Guava’s computer systems, such is not necessarily the case.
¶ 64 As one federal court has recognized, “the assumption that the person who pays for Internet
access at a given location is the same individual who allegedly downloaded a single sexually
explicit film is tenuous.” In re BitTorrent Adult Film Copyright Infringement Cases, No.
11-3995(DRH)(GRB), 2012 WL 1570765, at *3 (E.D.N.Y. July 24, 2012). “An IP address
provides only the location at which one of any number of computer devices may be deployed,
much like a telephone number can be used for any number of telephones.” Id. “[D]ue to the
increasing[ ] popularity of wireless routers,” “a single IP address usually supports multiple
computer devices–which unlike traditional telephones can be operated simultaneously by
different individuals.” Id. “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 a particular subscriber ***.” Id. Accordingly, while Guava’s petition
for discovery before suit alleges that identifying the ISP subscriber associated with an IP
address will identify the person who caused its damages, in reality, that person could be the
subscriber, a member of his or her family, an employee, invitee, neighbor, or interloper.
Guava’s Rule 224 petition fails to apprise the circuit court of the fact that further discovery
would be necessary in order to identify an ISP subscriber as the alleged hacker and what steps
it would take in order to make the factual connections that would be required in order to form a
reasonable belief that the subscriber is the culpable party. For this reason, Guava’s Rule 224
petition cannot state with sufficient facts a cause of action against the persons whom the
petition seeks to identify. This defect alone is a sufficient reason to reverse the circuit court’s
order allowing the petition.

¶ 65 2. The Petition for Rule to Show Cause/Sanctions
¶ 66 a. Standing in the Circuit Court
¶ 67 The remaining issues on appeal concern the circuit court’s order striking the Doe
appellants’ petition for rule to show cause and notice requiring the attendance of certain
representatives of Guava at a hearing on the petition pursuant to Illinois Supreme Court Rule
237(b) (eff. July 1, 2005). Based on our review of the transcript of the February 21, 2013,
hearing, the circuit court’s order appears to be based on the premise that the Doe appellants did
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 not have standing to petition the circuit court for a rule to show cause or issue a notice to appear
pursuant to Rule 237(b). The issue of standing is one of law that we review de novo.
Nationwide Advantage Mortgage Co. v. Ortiz, 2012 IL App (1st) 112755, ¶ 19.
¶ 68 In its December 12, 2012, order, the circuit court required that Comcast provide the Does
with notice that their identity was subject to disclosure unless they filed an objection with the
circuit court by January 25, 2013. In so doing, the circuit court invited the Does to intervene in
the action, as was wholly appropriate as their interests in the disclosure of their identities was
the subject matter of the action, and as such, the Does are necessary parties. See Keehner v.
A.E. Staley Manufacturing Co., 50 Ill. App. 3d 258, 267 (1977) (holding that an individual
having a substantial interest in a matter such that the matter cannot be resolved without
affecting that interest is a necessary party). Accordingly, the Doe appellants, by filing their
objections, became parties to this action and should be afforded the same rights as any other
party, including the right to file a petition for rule to show cause and a notice to appear at any
hearing with regard to same pursuant to Illinois Supreme Court Rule 237(b) (eff. July 1, 2005).
The circuit court erred in striking the petition for rule to show cause and the Rule 237(b) notice
to appear, and we reverse and remand for an evidentiary hearing on the petition for rule to
show cause.

¶ 69 b. Motion for Sanctions on Appeal
¶ 70 We turn briefly to the Doe appellants’ motion for sanctions on appeal pursuant to Illinois
Supreme Court Rules 137 (eff. Jan. 4, 2013), 375 (eff. Feb. 1, 1994), and 366(a)(3) to (5) (eff.
Feb. 1, 1994), and Guava’s motion to strike and motion to dismiss the appeal. First, we hereby
deny Guava’s motion to strike the Doe appellants’ motion for attorney fees and to dismiss the
appeal. Turning to the Doe appellants’ motion for attorney fees, as detailed above, the basis for
the motion for attorney fees is essentially the same as that set forth in the petition for rule to
show cause. As outlined in more detail below, this court is alarmed at the allegations set forth
in the petition for rule to show cause and the motion for sanctions on appeal. However, a
determination of the merits of these allegations and the degree of culpability to be attributed to
those responsible for the petition for discovery before suit will require an evidentiary hearing.
This court is not in a position to adjudicate the merits of the Doe appellants’ allegations of false
and frivolous pleading, harassment, extortion, identity theft, and forgery. This court is of the
firm conviction that justice requires inquiry by the circuit court and that a full evidentiary
hearing of the Doe appellants’ petition for rule to show cause take place. However, because
this court is not the proper arbiter of these matters, we hereby deny the Doe appellants’ petition
for attorney fees and sanctions on appeal. Nevertheless, we note that because the Doe
appellants are the prevailing party in this appeal, they may petition for their costs on appeal
pursuant to Illinois Supreme Court Rule 374 (eff. Feb. 1, 1994). In addition, attorney fees on
appeal can be sought in the circuit court after the hearing on the petition for a rule to show
cause.

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¶ 71 c. Proceedings on Remand
¶ 72 From the record on appeal, as outlined at length throughout the course of this disposition,
the issues to be addressed in the circuit court upon remand of the Doe appellants’ petition for
rule to show cause include, but are not necessarily limited to, the following: (1) whether Guava
and/or its representatives, including its attorneys, knew, or whether through reasonable inquiry
they should have known, that their allegation that at least one of the IP addresses listed in the
petition for discovery before suit was associated with a Comcast subscriber who resided in St.
Clair County was false; (2) whether the verification of the petition for discovery before suit
was forged; (3) whether the verification was made by a person who is an actual corporate
representative of Guava; (4) whether Guava was the real party in interest in this action; (5)
whether Guava is a true limited liability company with standing to institute this action, and, if
not, whether its representatives and/or attorneys had knowledge of this fact; (6) whether Guava
ever had the intention of making efforts or reasonable inquiry to uncover sufficient facts to
form a basis to state a cause of action against the Does or whether its purpose in instituting this
action was to harass and/or extort the Does without forming a reasonable basis to believe they
were the culpable parties; (7) whether Guava knew or should have known that its allegation
that the ISP subscribers associated with the IP addresses listed in Exhibit A to the petition for
discovery before suit were necessarily the persons against whom there was a cause of action
was not well-grounded in fact; (8) whether the attorneys who represented Guava in this action
had personal interests in Guava and whether they intentionally hid such interests from the
court; (9) whether Guava engaged in sanctionable conduct directed toward those Does whose
identities were disclosed in this case; and (10) the relative culpability of lead and local counsel
in relation to any findings of misconduct.
¶ 73 We recognize that the petition for rule to show cause that was filed in the circuit court
requested sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Jan. 4, 2013), as well as
punishment for indirect criminal contempt of court. We note that a petition initiating indirect
criminal contempt proceedings should not have the title “Petition for Rule to Show Cause,”
which is the designation commonly used for a petition initiating an indirect civil contempt
proceeding. In re Marriage of Betts, 200 Ill. App. 3d 26, 58 (1990). Instead, a petition initiating
indirect criminal contempt proceedings should have the title “Petition for Adjudication of
Criminal Contempt,” because a respondent in indirect criminal contempt proceedings enjoys
the privilege against self-incrimination and therefore cannot be required to “show cause” why
he should not be held in indirect criminal contempt. Id. at 58-59. In addition, indirect criminal
contempt proceedings must generally conform to the same constitutionally mandated
procedural requirements as other criminal proceedings. Id. at 58. On remand, the Doe
appellants should be required to amend their pleadings to conform to the requirements that are
commensurate with the type of relief they are requesting for Guava and/or its representatives’
alleged misconduct, and the circuit court shall take care to ensure that the procedural
requirements necessary to the proceedings are in place.

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¶ 74 CONCLUSION
¶ 75 For the foregoing reasons, we reverse the orders of the circuit court and remand with
directions that the circuit court dismiss Guava’s petition for discovery before suit, proceed to
an evidentiary hearing on the Doe appellants’ petition for a rule to show cause, and compel the
attendance of the persons named in the Doe appellants’ Rule 237 notice to appear. We deny
Guava’s motion to strike motion for attorney fees and to dismiss the appeal. However, because
we find that the circuit court is the proper arbiter of the Doe appellants’ allegations of frivolous
pleading, fraud, identity theft, and extortion, we deny the Doe appellants’ motion for attorney
fees pursuant to Illinois Supreme Court Rules 137, 375, and 366(a)(3) to (5).

¶ 76 Reversed and remanded with directions; motions denied.

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