New Sensations, Inc v. Does 1 - 1474

Filing 67

ORDER by Judge Maria-Elena James denying 62 Motion to Dismiss; denying 62 Motion to Quash re Doe Defendant #1353 (cdnS, COURT STAFF) (Filed on 11/30/2011).

1
2

UNITED STATES DISTRICT COURT

3

Northern District of California

4
5
NEW SENSATIONS, INC.,

No. C 11-2770 MEJ

6
Plaintiff,
7

v.

8

DOES 1-1,474,

9

ORDER DENYING DOE
DEFENDANT #1353's MOTION TO
QUASH; MOTION TO PROCEED
ANONYMOUSLY (I.P. Address
97.86.2.80)

Defendants.
Docket No. 62

10
_____________________________________/
12
For the Northern District of California

UNITED STATES DISTRICT COURT

11
On June 7, 2011, Plaintiff New Sensations, Inc. (“Plaintiff”) filed this lawsuit against 1,474

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

modify the subpoena). Id.

24

On November 29, 2011, Doe Defendant #1353 (I.P. Address 97.86.2.80) filed a Motion to

25

Proceed Anonymously and Motion to Quash. Dkt. No. 62. In his motion, Doe #1353 argues that

26

joinder is improper and that the Court lacks jurisdiction over him. As to the first argument, the

27

Court has addressed the issue of joinder at length in its September 22 Order and finds that it is

28

without merit at this stage of the litigation. Dkt. No. 13 at 6:22-11:10. As to jurisdiction, the Court

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

3

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

4

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

5

12(b)(2) permits defendants to move to dismiss for lack of personal jurisdiction. Although the Doe

6

Defendant moves the Court to dismiss the action against him for lack of personal jurisdiction, he is

7

not yet a defendant. If and when Plaintiff names him as a defendant, he will be able to raise this

8

defense. Once Plaintiff amasses enough evidence and names the Does, it will then have the burden

9

to present a prima facie case supporting personal jurisdiction over defendants. See Harris Rutsky &

10

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

11

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

12
For the Northern District of California

finds that any motion to quash based on jurisdictional grounds is premature. See, e.g., New

2

UNITED STATES DISTRICT COURT

1

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

13

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

14

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

15

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

16

Doe Defendant as a defendant or when the Doe Defendant has identified himself. As there is no

17

basis for giving any credence to an unsworn statement made by an anonymous person, the Court

18

finds it inappropriate to quash the subpoena, thereby dismissing Doe Defendant #1353 from this

19

case, before Plaintiff has an opportunity to learn Doe #1353’s identity and to determine whether

20

jurisdiction is proper.

21
22
23

Accordingly, Doe Defendant #1353’s motions to proceed anonymously and quash are
DENIED.
IT IS SO ORDERED.

24
25

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

26
27
28
2