Hard Drive Productions, Inc. v. Does 1-87

Filing 33

STIPULATION AND ORDER WITHDRAWING ANSWER (ECF #25) AND MOTION TO DISMISS (ECF #26). Signed by Judge Joseph C. Spero on 1/25/12. (klhS, COURT STAFF) (Filed on 1/25/2012)

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Nicholas Ranallo, Attorney at Law #275016
371 Dogwood Way
Boulder Creek, CA 95006
Telephone No.: (831) 703 - 4011
Fax No.: [phone]
Email: [e-mail]
Attorney for Account-Holder A. Lopez

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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HARD DRIVE PRODUCTIONS, LLC

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Plaintiff,

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JOINT STIPULATION AND
[PROPOSED] ORDER
WITHDRAWING ANSWER (ECF #25)
AND MOTION TO DISMISS (ECF
#26)

v.
A. LOPEZ, DOE DEFENDANT #1
ASSOCIATED WITH IP ADDRESS
108.0.16.220

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Case No. C-11-02333(JCS)

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Defendants.

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RECITALS
WHEREAS, the original Complaint in the above-captioned case was filed on May

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11, 2011 against 87 anonymous “Doe” Defendants identified only by IP address; and

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WHEREAS, on May 13, 2011, Plaintiff filed an Ex Parte Application seeking

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limited expedited discovery from relevant Internet Service Providers (ISPs), including the

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name, address, phone number, MAC address and other information associated with the 87

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IP addresses identified in the Complaint; and

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WHEREAS, on August 25, 2011, this court denied Plaintiff’s Ex Parte Application

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seeking limited expedited discovery from the ISPs except as to IP Address #1, the account

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STIPULATION AND PROPOSED ORDER WITHDRAWING ANSWER AND MOTION TO DISMISS

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associated with Alejandra Lopez, and
WHEREAS, on October 14, 2011, this court issued an Order Severing and
Dismissing Doe Defendants 2-87; and
WHEREAS, on December 7, 2011, Plaintiff moved this court to continue the

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Initial Case Management Conference in order to contact the account-holder associated

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with IP Address , Alejandra Lopez, and

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WHEREAS, on December 9, 2011, this court granted Plaintiff’s motion to
Continue the Initial Case Management Conference to January 13, 2011, and
WHEREAS, in response to the communications from Plaintiff that were

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authorized by this court, on January 9, 2012, Alejandra Lopez, filed an Answer to the

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Complaint (ECF #25) and a Motion to Dismiss (ECF # 26) based on the mistaken belief

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that she was a party to the above-captioned lawsuit; and

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WHEREAS, Ms. Lopez has not been served with a Summons and Complaint in
accordance with Rule 4; and
WHEREAS, Plaintiff maintains that they have not identified the actual Doe
Defendant in this matter; and
WHEREAS, Plaintiff further maintains that Ms. Lopez is not presently a defendant
in this action, and
WHEREAS, Plaintiff maintains that they will properly effectuate service under
Rule 4 following the identification of the Doe Defendant,

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[intentionally left blank]

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STIPULATION AND PROPOSED ORDER WITHDRAWING ANSWER AND MOTION TO DISMISS

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STIPULATION

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NOW THEREFORE, the Parties hereby jointly stipulate and request an Order as follows:

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(1)

Ms. Lopez’ Answer (ECF #25) and Motion to Dismiss (ECF #26) are hereby

withdrawn without prejudice to re-filing under the terms described below.
(2)

Plaintiff shall commence any future lawsuit against Ms. Lopez individually

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by filing and serving an Amended Complaint naming Ms. Lopez individually, in her

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personal capacity, in accordance with Rule 4 of the Federal Rules of Civil Procedure.

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(3)

Ms. Lopez hereby reserves any and all objections, counter-claims, and

affirmative defenses that it may have against Plaintiff, whether or not any of these claims

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and/or defenses were raised in Ms. Lopez’ initial pro se Answer or Motion to Dismiss.

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This reservation includes, but is not limited to, a reservation of the rights: (a) to move to

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dismiss the Complaint for failure to state a claim, (b) to move to strike the complaint or

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any portion thereof; (c) to move for a more definite statement; or (d) to move to dismiss

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for lack of personal jurisdiction or improper venue, or (e) to raise any other claim, defense,

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or file any other motion that would ordinarily be proper for a Defendant that has been

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properly served with a Summons and Complaint.

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(4)

Any future Answer or Responsive Motions from Ms. Lopez shall be due 21

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days after proper service of an Amended Complaint on Ms. Lopez, as described in

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Paragraph 2.

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(5)

In the event that this Court has not decided on the present request before

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January 31, 2011, Plaintiff and Ms. Lopez agree that the current January 31, 2012 deadline

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for her to file an Amended Answer as a matter of right under Rule 15 is hereby waived,

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and Ms. Lopez will have an unlimited time, within reason, to file such in the future.

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Additionally, Ms. Lopez’ right to make certain challenges to jurisdiction and venue are

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likewise extended.

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[intentionally left blank]

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STIPULATION AND PROPOSED ORDER WITHDRAWING ANSWER AND MOTION TO DISMISS

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(6)

Ms. Lopez explicitly reserves the right to challenge, modify, or quash the deposition

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authorized by this court’s Order dated January 13, 2012, or otherwise seek a protective

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order granting relief therefrom.

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IT IS SO STIPULATED

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Dated: January 24, 2012

NICHOLAS RANALLO, ATTORNEY AT LAW

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_____/s/Nicholas Ranallo_______________________
Nicholas R. Ranallo (#275016)
Attorney for Alejandra Lopez, Account Holder
Associated with IP Address 108.0.16.220

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Dated: January 24, 2012

PRENDA LAW INC.

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____/s/Brett Gibbs_____________________
Brett L. Gibbs, Attorney for Plaintiff Hard Drive
Productions, LLC.

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STIPULATION AND PROPOSED ORDER WITHDRAWING ANSWER AND MOTION TO DISMISS

[PROPOSED] ORDER

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PURSUANT TO THE ABOVE JOINT STIPULATION, AND GOOD CAUSE
APPEARING THEREFOR, IT IS HEREBY ORDERED THAT:
(1)

Ms. Lopez’ Answer (ECF #25) and Motion to Dismiss (ECF #26) are hereby

withdrawn without prejudice to re-filing under the terms described below.
(2)

Plaintiff shall commence any future lawsuit against Ms. Lopez individually

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by filing and serving an Amended Complaint naming Ms. Lopez individually, in her

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personal capacity, in accordance with Rule 4 of the Federal Rules of Civil Procedure.

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(3)

Ms. Lopez hereby reserves any and all objections, counter-claims, and

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affirmative defenses that it may have against Plaintiff, whether or not any of these claims

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and/or defenses were raised in Ms. Lopez’ initial pro se Answer or Motion to Dismiss.

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This reservation includes, but is not limited to, a reservation of the rights: (a) to move to

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dismiss the Complaint for failure to state a claim, (b) to move to strike the complaint or

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any portion thereof; (c) to move for a more definite statement; or (d) to move to dismiss

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for lack of personal jurisdiction or improper venue, or (e) to raise any other claim, defense,

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or file any other motion that would ordinarily be proper for a Defendant that has been

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properly served with a Summons and Complaint.

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(4)

Any future Answer or Responsive Motion(s) from Ms. Lopez shall be due 21

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days after proper service of an Amended Complaint on Ms. Lopez, as described in

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Paragraph 2.

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(5)

In the event that this Court has not decided on the present request before

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January 31, 2011, Plaintiff and Ms. Lopez agree that the current January 31, 2012 deadline

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for her to file an Amended Answer as a matter of right under Rule 15 is hereby waived,

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and Ms. Lopez will have an unlimited time, within reason, to file such in the future.

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Additionally, Ms. Lopez’ right to make certain challenges to jurisdiction and venue are

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likewise extended.

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STIPULATION AND PROPOSED ORDER WITHDRAWING ANSWER AND MOTION TO DISMISS

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(6)

Ms. Lopez explicitly reserves the right to challenge, modify, or quash the deposition

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authorized by this court’s Order dated January 13, 2012, or otherwise seek a protective

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order granting relief therefrom.

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RT

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January 25, 2012
Dated: __________________

A

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ER

Spero
seph C.

R NIA

NO

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Judge Jo

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UNIT
ED

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ISTRIC
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C
F
D IS T IC T O
R
__________________________________
N

The Honorable Joseph C. Spero
Magistrate Judge for the Northern
District of California

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STIPULATION AND PROPOSED ORDER WITHDRAWING ANSWER AND MOTION TO DISMISS

ATTESTATION OF CONCURRENCE

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Pursuant to General Order No. 45 (X), Nicholas Ranallo, the filer of the foregoing

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Stipulation and Proposed Order Withdrawing Answer and Motion to Dismiss hereby

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attests that the following additional signatories have concurred in its filing.

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Brett L. Gibbs
Prenda Law Inc.
38 Miller Avenue, #263
Mill Valley, CA 94941

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January 25, 2012

_______/s/Nicholas Ranallo_____
Nicholas Ranallo, Attorney at Law
Attorney for Account-Holder A. Lopez
371 Dogwood Way
Boulder Creek, CA 95006

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STIPULATION AND PROPOSED ORDER WITHDRAWING ANSWER AND MOTION TO DISMISS