New Sensations, Inc v. Does 1 - 1474

Filing 63

ORDER by Judge Maria-Elena James denying 50 Motion for Leave to Appear Anonymously; denying 53 Motion to Quash re Doe Defendant #305 (cdnS, COURT STAFF) (Filed on 11/30/2011).

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UNITED STATES DISTRICT COURT

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Northern District of California

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NEW SENSATIONS, INC.,

No. C 11-2770 MEJ

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Plaintiff,
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v.

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DOES 1-1,474,

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ORDER DENYING DOE
DEFENDANT #305's MOTION TO
QUASH; MOTION TO PROCEED
ANONYMOUSLY (I.P. Address
207.68.252.6)

Defendants.
Docket Nos. 50, 53

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_____________________________________/
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For the Northern District of California

UNITED STATES DISTRICT COURT

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On June 7, 2011, Plaintiff New Sensations, Inc. (“Plaintiff”) filed this lawsuit against 1,474

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

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Plaintiff’s exclusive license, (“Big Bang Theory: A XXX Parody”), using an internet peer-to-peer file

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

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

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Leave to Take Limited Expedited Discovery. Dkt. No. 13. The Court permitted Plaintiff to serve

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subpoenas on Does 1-1,474’s Internet Service Providers (“ISPs”) by serving a Federal Rule of Civil

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

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the name, address, telephone number, and email address of Does 1-1,474. Id. at 11. Once the ISPs

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provided Does 1-1,474 with a copy of the subpoena, the Court permitted Does 1-1,474 30 days from

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

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modify the subpoena). Id.

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On November 21, 2011, Doe Defendant #305 (I.P. Address 207.68.252.6) filed a Motion to

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Proceed Anonymously, Dkt. No. 50, and subsequently filed a Motion to Quash on November 22,

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2011. In his motions, Doe #305 argues that Plaintiff has failed to establish a prima facie case of

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copyright infringement against him, that joinder is improper, and that the Court lacks jurisdiction

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over him. As to the first two arguments, the Court has addressed them at length in its September 22

11:10. As to the third argument, the Court finds that any motion to quash based on jurisdictional

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

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(N.D. Cal. Jul. 18, 2011); Call of the Wild Movie, LLC v. Smith, No. 10-0455, 2011 WL 1807416, at

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

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

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

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

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

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

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over defendants. See Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122,

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For the Northern District of California

Order and finds they are without merit at this stage of the litigation. Dkt. No. 13 at 5:10-6:4, 6:22-

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UNITED STATES DISTRICT COURT

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1129 (9th Cir. 2003). At that time, the Doe Defendant may present his affidavit asserting that he has

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

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requisite minimum contacts to establish personal jurisdiction. With evidence from both sides,

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

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

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

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identified himself. As there is no basis for giving any credence to an unsworn statement made by an

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anonymous person, the Court finds it inappropriate to quash the subpoena, thereby dismissing Doe

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Defendant #305 from this case, before Plaintiff has an opportunity to learn Doe #305’s identity and

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to determine whether jurisdiction is proper.

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Accordingly, Doe Defendant #305’s motions to proceed anonymously and quash are
DENIED.
IT IS SO ORDERED.

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Dated: November 30, 2011
_______________________________
Maria-Elena James
Chief United States Magistrate Judge

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