Patrick Collins, Inc. v. Does 1-2590

Filing 77

ORDER RE JURISDICTION Status Report due by 12/14/2011.. Signed by Judge Maria-Elena James on 12/7/2011. (cdnS, COURT STAFF) (Filed on 12/7/2011)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 Northern District of California 6 7 PATRICK COLLINS, INC., No. C 11-2766 MEJ 8 Plaintiff, v. 10 DOES 1-2,590, 11 ORDER RE: JURISDICTION Defendants. _____________________________________/ 12 For the Northern District of California UNITED STATES DISTRICT COURT 9 13 14 INTRODUCTION On June 7, 2011, Plaintiff Patrick Collins, Inc. filed this lawsuit against 2,590 Doe 15 Defendants, alleging that Defendants illegally reproduced and distributed a work subject to 16 Plaintiff’s exclusive license, (“Real Female Orgasms 10”), using an internet peer-to-peer file sharing 17 network known as BitTorrent, thereby violating the Copyright Act, 17 U.S.C. §§ 101-1322. Compl. 18 ¶¶ 6-15, Dkt. No. 1. This case is one of several “mass copyright” cases filed in this District on 19 behalf of various plaintiffs against thousands of doe defendants accused of using BitTorrent 20 technology to illegally download copyrighted files from the internet. See, e.g., Berlin Media Art v. 21 Does 1-654, Case No. 11-3770-JSC; Boy Racer v. Does 2-52, Case No. 11-2834-LHK; Boy Racer v. 22 Does 1-52, Case No. 11-2329-PSG; Pacific Century Intel, Ltd. v. Does 1-101, Case No. 23 11.2533-DMR; Pacific Century Intel, Ltd. v. Does 1-129, Case No. 11-3681-HRL; MCGIP, LLC v. 24 Does 1-149, Case No. 11-2331-LB; Hard Drive Productions, Inc. v. Does 1-188, Case No. 11-1566- 25 JCS; Hard Drive Productions, Inc. v. Does 1-118, Case No. 11-01567-LB. 26 On September 22, 2011, the Court granted Plaintiff’s Application for Leave to Take Limited 27 Expedited Discovery. Dkt. No. 12. The Court permitted Plaintiff to serve subpoenas on Does 1- 28 2,590’s Internet Service Providers (“ISPs”) by serving a Federal Rule of Civil Procedure 45 1 subpoena that seeks information sufficient to identify the Doe Defendants, including the name, 2 address, telephone number, and email address of Does 1-2,590. Id. at 11. Once the ISPs provided 3 Does 1-2,590 with a copy of the subpoena, the Court permitted Does 1-2,590 30 days from the date 4 of service to file any motions contesting the subpoena (including a motion to quash or modify the 5 subpoena). Id. 6 7 DISCUSSION Since granting Plaintiff’s request, it has become clear that jurisdiction is likely lacking over 8 many of the Doe Defendants, and that venue is also improper. Several Doe Defendants have filed 9 motions to dismiss and/or quash the subpoena, arguing that they have no connection with California. identified themselves, the Court has subsequently utilized one of many free and publicly available 12 For the Northern District of California Although the Court has denied these motions as premature because the defendants have not 11 UNITED STATES DISTRICT COURT 10 services to look up the locations affiliated with the IP addresses for which Plaintiff seeks discovery. 13 See Berlin Media Art e.k. v. Does 1-654, 2011 WL 36383080, at *2 (N.D. Cal. Oct. 18, 2011) (citing 14 DigiProtect USA Corp. v. Does, 2011 WL 4444666, at *1 (S.D.N.Y. Sep. 26, 2011) (“[p]ublicly 15 available software provides basic, or at least presumptive, geographic information about IP 16 addresses”)). Selecting random IP addresses provided in Exhibit A of the Amended Complaint, the 17 Court gathered the following presumptive geographic data: 18 Doe 1, IP Address, is in Houston, Texas; 19 Doe 100, IP Address, is in Pikeville, Kentucky; 20 Doe 250, IP Address, is in Seattle, Washington; 21 Doe 500, IP Address, is in Charleston, South Carolina; 22 Doe 600, IP Address, is in Madison, Wisconsin; 23 Doe 1000, IP Address, is in Wichita, Kansas; 24 Doe 1500, IP Address, is in New York, New York; 25 Doe 1900, IP Address, is in Cleveland, Ohio; and 26 Doe 2500, IP Address, is in Muncy, Pennsylvania. 27 These results suggest that this Court lacks personal jurisdiction over the Doe Defendants; 28 2 1 indeed, even without investigating the IP addresses, a cursory look at the carriers identified in the 2 complaint suggests personal jurisdiction problems. For example, Exhibit A includes regional ISPs 3 whose very names suggest they are located outside this District, such as Cedar Falls Utilities, 4 Hawaiian Telcom Services Company, and Atlantic Broadband. Dkt. No. 1, Ex. A. For this reason 5 alone, the Court in its discretion could have denied the motion for expedited discovery. Berlin 6 Media Art, 2011 WL 36383080, at *3; DigiProtect USA Corp., 2011 WL 4444666 at *2 (a court 7 may deny a request for early discovery if the plaintiff cannot make a prima facie showing of 8 personal jurisdiction). some point during the time period in question from a computer located in this District, the Court is 11 not aware of any caselaw that suggests that it has personal jurisdiction over all 2,590 Defendants 12 For the Northern District of California Further, even if one or more of the unidentified defendants allegedly downloaded the file at 10 UNITED STATES DISTRICT COURT 9 based on this connection. As one court in this District noted, the logical extension of such an 13 unprecedented holding “would be that everybody who used . . . BitTorrent would subject themselves 14 to jurisdiction in every state.” On The Cheap. LLC v. Does 1–5011, 2011 WL 4018258 at *4 (N.D. 15 Cal. Sep. 6, 2011). “[T]his is a far cry from the requirement that ‘there be some act by which the 16 defendant purposefully avails itself of the privilege of conducting activities with the forum State,’ 17 which is the hallmark of specific jurisdiction.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 18 U.S. 462, 475 (1985)). 19 In its Complaint, Plaintiff states that, “Although the true identity of each Defendant is 20 unknown to the Plaintiff at this time, on information and belief, each Defendant may be found in this 21 District, and/or the acts complained of herein occurred and/or have a significant effect within this 22 District. Therefore, venue in this Court is proper in accordance with 28 U.S.C. §§ 1391(b) and 23 1400(a).” Compl. at 1-2. This conclusory assertion is also insufficient to support venue. First, 24 under the copyright venue provision, venue is proper “in the district in which the defendant or his 25 agent resides or may be found.” 28 U.S.C. § 1400(a). Here, Plaintiff does not and likely cannot 26 allege that each of the 2,590 defendants are found in this District. Thus, venue is not proper under 27 section 1400. Second, in a federal question case venue is proper in a judicial district “in which a 28 3 1 substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 2 1391(b)(2). There is nothing in the Complaint, however, that suggests Plaintiff has a good faith 3 basis for alleging that a substantial part of the events or omissions related to all 2,590 Doe 4 Defendants occurred in this District. 5 In short, all of the available information suggests that this Court does not have personal argue that this determination is premature because the individual defendants might own property in 8 California or do a sufficient amount of business here to confer jurisdiction. However, any such 9 argument is unpersuasive. Berlin Media Art v. Does 1-654, Case No. 11-3770-JSC, Dkt. No. 15 at 10 2. Moreover, given the ease by which the Court located presumptive geographic data for a random 11 selection of IP Addresses in this case, the Court is troubled that Plaintiff has made no attempt to 12 For the Northern District of California jurisdiction over at least a large number of Doe Defendants named in this action. Plaintiff might 7 UNITED STATES DISTRICT COURT 6 identify those Doe Defendants for whom it has a good faith belief reside in California. Thus, the 13 Court declines to continue to allow Plaintiff to have various ISPs disclose the sought-after subscriber 14 information when Plaintiff has no good faith basis whatsoever to assert that this Court would have 15 personal jurisdiction over the Doe Defendants. As another court has noted, “there is no justification 16 for dragging into a[] [California] federal court, on a wholesale basis, a host of unnamed defendants 17 over whom person jurisdiction clearly does not exist and-more importantly-as to whom [Plaintiff’s] 18 counsel could readily have ascertained that fact.” CP Productions, Inc. v. Does 1-300, 2011 WL 19 737761, at *1 (N.D. Ill. Feb. 24, 2011). To accept Plaintiff’s argument means that a Plaintiff 20 alleging internet copyright infringement may sue hundreds of doe defendants in any district in the 21 United States, regardless of where the defendants are likely to reside. 22 Finally, good cause for granting a motion for early discovery may exist “where the need for 23 the expedited discovery, in consideration of the administration of justice, outweighs the prejudice to 24 the responding party.” OpenMind Solutions, Inc. v. Does 1-39, 2011 WL 4715200, at *2 (N.D. Cal. 25 Oct. 7, 2011 (internal quotations and citation omitted). Where Plaintiff has made no effort to 26 determine jurisdiction, the administration of justice is not served by requiring out-of-state recipients 27 of subpoenas to bring challenges to the subpoenas in far-flung jurisdictions. Further, “[f]rom a 28 4 1 judicial economy perspective, it makes more sense for Plaintiff to bring its case against these [doe 2 defendants] in the court where they have a good faith belief that venue and personal jurisdiction are 3 attainable and the case can actually be prosecuted.” Nu Image, Inc. v. Does 1-23,322, 2011 WL 4 3240562, at *5 (D.D.C. Jul. 29, 2011). 5 Plaintiff will not suffer any prejudice by merely being required to bring suit in the 6 jurisdiction where it has a good faith belief, based on publicly available information, that the doe 7 defendant resides. Indeed, many plaintiffs with similar cases have done just that. See, e.g., MCGIP, 8 LLC v. Does 1-149, 2011 WL 4352110, at *3 n. 3 (N.D. Cal. Sep. 16, 2011). Thus, this is not a case 9 where dismissing defendants outside this District deprives Plaintiff of the opportunity to discover the 10 identities of those it contends infringed its copyright. CONCLUSION 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 Based on this analysis, the Court hereby ORDERS as follows: 13 1) 14 15 Plaintiff shall conduct a search to obtain geographic information about the IP Addresses listed in its Complaint; and 2) Plaintiff shall thereafter provide, as part of the declaration the Court previously 16 ordered Plaintiff to produce (Dkt. No. 59), the location for each IP Address in its 17 Complaint; and 18 3) For all IP Addresses outside this District, Plaintiff shall either: (a) file a voluntary 19 dismissal without prejudice as to those Doe Defendants; or (b) show good cause as to 20 why it has a good faith belief that jurisdiction exists and venue is proper as to each 21 individual Doe Defendant. General arguments such as those discussed above will not 22 suffice. Plaintiff must make a specific showing as to each Doe Defendant as to why it 23 has a good faith belief that jurisdiction and venue are proper. 24 The deadline for filing the declaration is hereby extended to December 14, 2011. Upon receipt of 25 Plaintiff’s declaration, the Court shall issue an order detailing how this case shall proceed. Until the 26 Court issues its further order, Plaintiff is hereby ORDERED not to send any further settlement 27 demand letters. As to any Doe Defendants to whom Plaintiff has already sent a settlement demand 28 5 1 letter, the Court ORDERS Plaintiff to provide a copy of this Order to said Doe Defendants by 2 December 14, 2011, and inform them in a cover letter that they need not comply with the demand 3 letter, pending resolution of the jurisdiction and venue issues addressed herein. Any settlement 4 reached on or after the date of this Order will not be effective. 5 IT IS SO ORDERED. 6 7 Dated: December 7, 2011 _______________________________ Maria-Elena James Chief United States Magistrate Judge 8 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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