Patrick Collins, Inc. v. Does 1-2590

Filing 30

ORDER by Judge Maria-Elena James denying 20 Doe Defendant 654's Motion to Dismiss (cdnS, COURT STAFF) (Filed on 11/15/2011) Modified on 11/15/2011 (cdnS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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Northern District of California

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PATRICK COLLINS, INC.,

No. C 11-2766 MEJ

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Plaintiff,
v.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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DOES 1-2,590,

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ORDER DENYING MOTION TO
DISMISS DOE DEFENDANT #654
(IP ADDRESS 24.215.237.108)

Defendants.
_____________________________________/

Docket No. 20
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On June 7, 2011, Plaintiff Patrick Collins, Inc. filed this lawsuit against 2,590 Doe

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Defendants, alleging that Defendants illegally reproduced and distributed a work subject to

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Plaintiff’s exclusive license, (“Real Female Orgasms 10”), using an internet peer-to-peer file sharing

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network known as BitTorrent, thereby violating the Copyright Act, 17 U.S.C. § 101-1322. Compl.

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¶¶ 6-15, Dkt. No. 1. On September 22, 2011, the Court granted Plaintiff’s Application for Leave to

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Take Limited Expedited Discovery. Dkt. No. 12. The Court permitted Plaintiff to serve subpoenas

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on Does 1-2,590’s Internet Service Providers (“ISPs”) by serving a Federal Rule of Civil Procedure

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45 subpoena that seeks information sufficient to identify the Doe Defendants, including the name,

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address, telephone number, and email address of Does 1-2,590. Id. at 11. Once the ISPs provided

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Does 1-2,590 with a copy of the subpoena, the Court permitted Does 1-2,590 30 days from the date

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of service to file any motions contesting the subpoena (including a motion to quash or modify the

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subpoena). Id.

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Now before the Court is a Motion to Dismiss, filed by Doe Defendant #654 (I.P. Address
24.215.237.108). Dkt. No. 20. In his motion, Doe requests that the subpoena be quashed as to him

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and the case against him dismissed because the Court lacks jurisdiction and venue is improper.
Pursuant to Rule 45(c)(3), if the subpoena would cause undue burden to Defendant, it must

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be quashed. The subpoena, however, does not require any obligation from Defendant; rather, it was

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directed at the putative defendants’ ISPs. As such, there is no undue burden.

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Further, any motion to dismiss based on jurisdictional grounds is premature. See, e.g., New

Wild Movie, LLC v. Smith, No. 10-0455, 2011 WL 1807416, at *9 (D.D.C. May 12, 2011); Voltage

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Pictures, LLC v. Does 1–5,000, No. 10-0873, WL 1807438, at *8 (D.D.C. May 12, 2011). Rule

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12(b)(2) permits defendants to move to dismiss for lack of personal jurisdiction. Although the Doe

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Defendant moves the Court to dismiss the action against him for lack of personal jurisdiction, he is

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not yet a defendant. If and when Plaintiff names him as a defendant, he will be able to raise this

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For the Northern District of California

Sensations, Inc. v. Does 1-1,745, 2011 WL 2837610, at *1 (N.D. Cal. Jul. 18, 2011); Call of the

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UNITED STATES DISTRICT COURT

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defense. Once Plaintiff amasses enough evidence and names the Does, it will then have the burden

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to present a prima facie case supporting personal jurisdiction over defendants. See Harris Rutsky &

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Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003). At that time, the

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Doe Defendant may present his affidavit asserting that he has never engaged in business with

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Plaintiff and that his activities with the forum state do not meet the requisite minimum contacts to

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establish personal jurisdiction. With evidence from both sides, jurisdiction will be decided on a full

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record. At this time, however, without any named defendants, the motion is not yet ripe. The

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motion is DENIED WITHOUT PREJUDICE and may be brought again once Plaintiff names the

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Doe Defendant as a defendant or when the Doe Defendant has identified himself.

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IT IS SO ORDERED.

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Dated: November 14, 2011
_______________________________
Maria-Elena James
Chief United States Magistrate Judge

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