Patrick Collins, Inc. v. Does 1-2590

Filing 63

ORDER by Judge Maria-Elena James denying 46 Motion to Dismiss; denying 46 Motion to Quash IP Address (cdnS, COURT STAFF) (Filed on 12/1/2011)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 Northern District of California 8 9 PATRICK COLLINS, INC., No. C 11-2766 MEJ 10 Plaintiff, v. 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 DOES 1-2,590, 13 ORDER DENYING MOTION TO QUASH (IP ADDRESS Defendants. _____________________________________/ Docket No. 46 14 15 On June 7, 2011, Plaintiff Patrick Collins, Inc. filed this lawsuit against 2,590 Doe 16 Defendants, alleging that Defendants illegally reproduced and distributed a work subject to 17 Plaintiff’s exclusive license, (“Real Female Orgasms 10”), using an internet peer-to-peer file sharing 18 network known as BitTorrent, thereby violating the Copyright Act, 17 U.S.C. § 101-1322. Compl. 19 ¶¶ 6-15, Dkt. No. 1. On September 22, 2011, the Court granted Plaintiff’s Application for Leave to 20 Take Limited Expedited Discovery. Dkt. No. 12. The Court permitted Plaintiff to serve subpoenas 21 on Does 1-2,590’s Internet Service Providers (“ISPs”) by serving a Federal Rule of Civil Procedure 22 45 subpoena that seeks information sufficient to identify the Doe Defendants, including the name, 23 address, telephone number, and email address of Does 1-2,590. Id. at 11. Once the ISPs provided 24 Does 1-2,590 with a copy of the subpoena, the Court permitted Does 1-2,590 30 days from the date 25 of service to file any motions contesting the subpoena (including a motion to quash or modify the 26 subpoena). Id. 27 28 Now before the Court is a Motion to Quash/Dismiss, filed by a Doe Defendant identified only by the IP address Dkt. No. 46. In the motion, Doe Defendant argues that the 1 Court lacks jurisdiction and that venue is improper. However, the Court finds that a motion based 2 on these grounds is premature. See, e.g., New Sensations, Inc. v. Does 1-1,745, 2011 WL 2837610, 3 at *1 (N.D. Cal. Jul. 18, 2011); Call of the Wild Movie, LLC v. Smith, No. 10-0455, 2011 WL 4 1807416, at *9 (D.D.C. May 12, 2011); Voltage Pictures, LLC v. Does 1–5,000, No. 10-0873, WL 5 1807438, at *8 (D.D.C. May 12, 2011). Rule 12(b)(2) permits defendants to move to dismiss for 6 lack of personal jurisdiction. Although the Doe Defendant moves the Court to dismiss the action 7 against him for lack of personal jurisdiction, he is not yet a defendant. If and when Plaintiff names 8 him as a defendant, he will be able to raise this defense. Once Plaintiff amasses enough evidence and 9 names the Does, it will then have the burden to present a prima facie case supporting personal F.3d 1122, 1129 (9th Cir. 2003). At that time, the Doe Defendant may present his affidavit asserting 12 For the Northern District of California jurisdiction over defendants. See Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 11 UNITED STATES DISTRICT COURT 10 that he has never engaged in business with Plaintiff and that his activities with the forum state do not 13 meet the requisite minimum contacts to establish personal jurisdiction. With evidence from both 14 sides, jurisdiction will be decided on a full record. At this time, however, without any named 15 defendants, the motion is not yet ripe. The motion is DENIED WITHOUT PREJUDICE and may be 16 brought again once Plaintiff names the Doe Defendant as a defendant or when the Doe Defendant 17 has identified himself. 18 IT IS SO ORDERED. 19 20 Dated: December 1, 2011 _______________________________ Maria-Elena James Chief United States Magistrate Judge 21 22 23 24 25 26 27 28 2

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