Hard Drive Productions, Inc. v. Does 1-46

Filing 44

ORDER by Judge Edward M. Chen Adopting 39 Magistrate Judge's Report and Recommendation and Denying 23 Defendant's Motion to Quash. (emcsec, COURT STAFF) (Filed on 2/28/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HARD DRIVE PRODUCTIONS, INC., et al.,

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For the Northern District of California

United States District Court

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No. C-11-1959 EMC

Plaintiff,
v.
JOHN DOE ASSOCIATED WITH IP
ADDRESS: 24.7.26.204,

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ORDER ADOPTING MAGISTRATE
JUDGE’S REPORT AND
RECOMMENDATION AND DENYING
DEFENDANT’S MOTION TO QUASH
(Docket Nos. 23, 39)

Defendant.
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___________________________________/
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Defendant John Doe associated with IP Address 24.7.26.2041 has filed a motion to quash a

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subpoena issued by Plaintiff Hard Drive Productions, Inc. Docket No. 23 (“Motion”). Having

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reviewed Magistrate Judge Spero’s report and recommendation and Plaintiff’s objections to the

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report and recommendation, the Court DENIES Defendant’s motion to quash.

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I.

FACTUAL & PROCEDURAL HISTORY

Plaintiff is a producer and distributor of adult entertainment. Compl. ¶ 6. Plaintiff originally
brought this suit against 46 Doe Defendants, alleging that Doe Defendants used the Peer-to-Peer

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The original complaint was brought against Defendant John Doe associated with IP
Address 24.7.26.204. Compl., Exh. A. Defendant John Doe states in his motion that “the cited IP
address of 24.7.26.204 is not the digital signature of the owner(s) of this residence,” and lists Doe’s
IP address as 24.6.184.34. Docket No. 23 at 4. Plaintiff points out that “an IP address that was
assigned to a Doe Defendant at the time of the infringement may not be assigned to that Doe
Defendant today.” Docket No. 25 at 2, n.2. Plaintiff also claims that both addresses are located in
the approximate vicinity of Santa Clara, California, suggesting that Doe changed his IP address after
this action was filed. Id. at 3, n.3; see also Docket No. 39 at 1 n.1. In any event, the only subpoena
at issue currently before the Court is the one directed at 24.7.26.204.

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media distribution system BitTorrent to download and distribute Plaintiff’s copyrighted works.

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Compl. ¶ 23.

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In April 2011, the Court granted Plaintiff’s motion to serve Rule 45 subpoenas upon the

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Internet Service Providers (“ISPs”) identified in the Complaint. Docket No. 8. The subpoenas

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sought information identifying each Defendant based on the supplied IP addresses, including name,

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address, telephone number, e-mail address, and Media Access Control address. Docket No. 8. A

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motion to quash and/or vacate the subpoena was filed by Doe Defendant associated with IP address

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24.7.26.204. Docket No. 23. In this motion, Doe Defendant challenged the subpoena on the basis of

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lack of jurisdiction, undue burden, and denial of liability. Docket No. 23 ¶¶ 5, 7. The motion was
referred to Judge Spero, who found that “challenges based on the possible lack of personal

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For the Northern District of California

United States District Court

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jurisdiction are premature, that compliance with the subpoena by the ISP would not constitute an

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undue burden, and that denial of liability is not a basis for quashing a subpoena.” Docket No. 39 at

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1 (“R&R”). However, Judge Spero recommended that Doe Defendant’s motion be granted because

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of improper joinder. R&R at 2.

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Plaintiff dismissed all Doe defendants except Doe Defendant associated with IP address

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24.7.26.204. Docket No. 30. On this basis, Plaintiff objected to the R&R, arguing that misjoinder

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was no longer a basis for granting Doe’s motion to quash. Docket No. 41.

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II.

DISCUSSION

The Court agrees with Judge Spero that a challenge based on lack of personal jurisdiction is

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premature (see Call of the Wild Movie, LLC v. Does, No. 10-455 (BAH), 10-569 (BAH). 10-1520

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(BAH0, 2011 U.S. Dist. LEXIS 29153, at *27-32 (D.D.C. Mar. 22, 2011)), that “the merits of this

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case are not relevant to the issue of whether the subpoena is valid and enforceable” (Voltage

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Pictures, LLC v. Does, No. 10-0873 (BAH), 2011 U.S. Dist. LEXIS 50787, at *18-20 (D.D.C. May

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12, 2011)), and that being named a defendant in a case does not in and of itself constitute an undue

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burden such that the subpoena should be quashed.

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As to Judge Spero’s finding of improper joinder, Plaintiff’s dismissal of all other Defendants

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other than Doe Defendant herein renders that issue moot. Improper joinder is no longer a basis to

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grant the motion to quash.

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III.

CONCLUSION

For the reasons stated above, the Court DENIES Doe Defendant’s motion to quash. Plaintiff
shall serve a copy of this order on Defendant John Doe associated with IP Address 24.7.26.204.
This order disposes of Docket Nos. 23 and 39.

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IT IS SO ORDERED.

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Dated: February 28, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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