Patrick Collins, Inc. v. Does 1-2590

Filing 71

ORDER by Judge Maria-Elena James denying 70 Motion to Quash (cdnS, COURT STAFF) (Filed on 12/5/2011)

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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 75.139.87.233)

Defendants.
_____________________________________/

Re: Docket No. 70

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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 Quash/Dismiss, filed by William Triplett. Dkt. No. 70.
In the motion, Mr. Triplett argues that the Court lacks jurisdiction. However, the Court finds that

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

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

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

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Does 1–5,000, No. 10-0873, WL 1807438, at *8 (D.D.C. May 12, 2011). Rule 12(b)(2) permits

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defendants to move to dismiss for lack of personal jurisdiction. Although the Doe Defendant moves

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the Court to dismiss the action against him for lack of personal jurisdiction, he is not yet a

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defendant. If and when Plaintiff names him as a defendant, he will be able to raise this defense.

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Once Plaintiff amasses enough evidence and names the Does, it will then have the burden to present

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a prima facie case supporting personal jurisdiction over defendants. See Harris Rutsky & Co. Ins.

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

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For the Northern District of California

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

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UNITED STATES DISTRICT COURT

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

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

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

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

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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: December 5, 2011
_______________________________
Maria-Elena James
Chief United States Magistrate Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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PATRICK COLLINS INC,

Case Number: CV11-02766 MEJ

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Plaintiff,
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CERTIFICATE OF SERVICE
v.

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DOES 1-2590 et al,
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Defendant.
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For the Northern District of California

UNITED STATES DISTRICT COURT

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on December 5, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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William Triplett
646 South Main St
San Antonio TX 78204

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Dated: December 5, 2011

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Richard W. Wieking, Clerk
By: Brenda Tolbert, Deputy Clerk

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