New Sensations, Inc v. Does 1 - 1474
Filing
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ORDER by Judge Maria-Elena James denying 60 Motion to Quash; denying 60 Motion to Dismiss re Doe Defendants 105, 107, and 903(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,
Docket No. 60
v.
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ORDER DENYING DOE
DEFENDANTS 105, 107, 903's
MOTION TO QUASH; MOTION TO
PROCEED ANONYMOUSLY
Defendants.
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DOES 1-1,474,
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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 28, 2011, Doe Defendants 105, 107, and 903 filed a Motion to Proceed
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Anonymously and Motion to Quash. Dkt. No. 60. In their motion, Does argue that joinder is
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improper and that the Court lacks jurisdiction. As to the first argument, the Court has addressed the
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issue of joinder at length in its September 22 Order and finds that it is without merit at this stage of
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the litigation. Dkt. No. 13 at 6:22-11:10. As to jurisdiction, the Court finds that any motion to
2011 WL 2837610, at *1 (N.D. Cal. Jul. 18, 2011); Call of the Wild Movie, LLC v. Smith, No.
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10-0455, 2011 WL 1807416, at *9 (D.D.C. May 12, 2011); Voltage Pictures, LLC v. Does 1–5,000,
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No. 10-0873, WL 1807438, at *8 (D.D.C. May 12, 2011). Rule 12(b)(2) permits defendants to
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move to dismiss for lack of personal jurisdiction. Although the Doe Defendants moves the Court to
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dismiss the action against them for lack of personal jurisdiction, they are not yet defendants. If and
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when Plaintiff names them as defendants, they will be able to raise this defense. Once Plaintiff
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amasses enough evidence and names the Does, it will then have the burden to present a prima facie
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case supporting personal jurisdiction over defendants. See Harris Rutsky & Co. Ins. Servs., Inc. v.
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Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003). At that time, the Doe Defendants may
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present any affidavits asserting that they have never engaged in business with Plaintiff and that their
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For the Northern District of California
quash based on jurisdictional grounds is premature. See, e.g., New Sensations, Inc. v. Does 1-1,745,
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UNITED STATES DISTRICT COURT
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activities with the forum state do not meet the requisite minimum contacts to establish personal
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jurisdiction. With evidence from both sides, jurisdiction will be decided on a full record. At this
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time, however, without any named defendants, the motion is not yet ripe. The motion is DENIED
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WITHOUT PREJUDICE and may be brought again once Plaintiff names the Doe Defendants as
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defendants or when the Doe Defendants have identified themselves. As there is no basis for giving
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any credence to an unsworn statement made by an anonymous person, the Court finds it
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inappropriate to quash the subpoena, thereby dismissing the Doe Defendants from this case, before
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Plaintiff has an opportunity to learn Does’ identities and to determine whether jurisdiction is proper.
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Accordingly, the Doe Defendants’ motions to proceed anonymously and quash are DENIED.
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IT IS SO ORDERED.
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Dated: November 30, 2011
_______________________________
Maria-Elena James
Chief United States Magistrate Judge
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