Patrick Collins, Inc. v. Does 1-2590

Filing 64

ORDER DENYING MOTION TO QUASH re 47 Objection filed by Doe 71.88.189.140. Signed by Judge Maria-Elena James on 12/1/2011. (cdnS, COURT STAFF) (Filed on 12/1/2011)

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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
QUASH (IP ADDRESS 71.88.189.140)

Defendants.
_____________________________________/

Re: Docket No. 47

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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 an objection filed by a Doe Defendant identified only by the IP

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address 71.88.189.140. Dkt. No. 47. In the motion, Doe Defendant argues that he did not use a

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BitTorrent to download Real Female Orgasms 10, that the Court lacks jurisdiction over him, and

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that venue is improper. As to the first argument, the Court finds that it goes to the merits of the case

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and is therefore premature. As to jurisdiction and venue, the Court finds that a motion based on

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these grounds is also premature. See, e.g., New Sensations, Inc. v. Does 1-1,745, 2011 WL 2837610,

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at *1 (N.D. Cal. Jul. 18, 2011); Call of the Wild Movie, LLC v. Smith, No. 10-0455, 2011 WL

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1807416, at *9 (D.D.C. May 12, 2011); Voltage Pictures, LLC v. Does 1–5,000, No. 10-0873, WL

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1807438, at *8 (D.D.C. May 12, 2011). Rule 12(b)(2) permits defendants to move to dismiss for

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lack of personal jurisdiction. Although the Doe Defendant moves the Court to dismiss the action

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against him for lack of personal jurisdiction, he is not yet a defendant. If and when Plaintiff names

names the Does, it will then have the burden to present a prima facie case supporting personal

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For the Northern District of California

him as a defendant, he will be able to raise this defense. Once Plaintiff amasses enough evidence and

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UNITED STATES DISTRICT COURT

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jurisdiction over defendants. See Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328

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F.3d 1122, 1129 (9th Cir. 2003). At that time, the Doe Defendant may present his affidavit asserting

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that he has never engaged in business with Plaintiff and that his activities with the forum state do not

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meet the requisite minimum contacts to establish personal jurisdiction. With evidence from both

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sides, jurisdiction will be decided on a full record. At this time, however, without any named

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defendants, the motion is not yet ripe. The motion is DENIED WITHOUT PREJUDICE and may be

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brought again once Plaintiff names the Doe Defendant as a defendant or when the Doe Defendant

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has identified himself.

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IT IS SO ORDERED.

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Dated: December 1, 2011
_______________________________
Maria-Elena James
Chief United States Magistrate Judge

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