New Sensations, Inc v. Does 1 - 1474

Filing 71

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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1 2 UNITED STATES DISTRICT COURT 3 Northern District of California 4 5 NEW SENSATIONS, INC., No. C 11-2770 MEJ 6 Plaintiff, Docket No. 60 v. 8 ORDER DENYING DOE DEFENDANTS 105, 107, 903's MOTION TO QUASH; MOTION TO PROCEED ANONYMOUSLY Defendants. 7 DOES 1-1,474, 9 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 28, 2011, Doe Defendants 105, 107, and 903 filed a Motion to Proceed 25 Anonymously and Motion to Quash. Dkt. No. 60. In their motion, Does argue that joinder is 26 improper and that the Court lacks jurisdiction. As to the first argument, the Court has addressed the 27 issue of joinder at length in its September 22 Order and finds that it is without merit at this stage of 28 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. 3 10-0455, 2011 WL 1807416, at *9 (D.D.C. May 12, 2011); Voltage Pictures, LLC v. Does 1–5,000, 4 No. 10-0873, WL 1807438, at *8 (D.D.C. May 12, 2011). Rule 12(b)(2) permits defendants to 5 move to dismiss for lack of personal jurisdiction. Although the Doe Defendants moves the Court to 6 dismiss the action against them for lack of personal jurisdiction, they are not yet defendants. If and 7 when Plaintiff names them as defendants, they will be able to raise this defense. Once Plaintiff 8 amasses enough evidence and names the Does, it will then have the burden to present a prima facie 9 case supporting personal jurisdiction over defendants. See Harris Rutsky & Co. Ins. Servs., Inc. v. 10 Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003). At that time, the Doe Defendants may 11 present any affidavits asserting that they have never engaged in business with Plaintiff and that their 12 For the Northern District of California quash based on jurisdictional grounds is premature. See, e.g., New Sensations, Inc. v. Does 1-1,745, 2 UNITED STATES DISTRICT COURT 1 activities with the forum state do not meet the requisite minimum contacts to establish personal 13 jurisdiction. With evidence from both sides, jurisdiction will be decided on a full record. At this 14 time, however, without any named defendants, the motion is not yet ripe. The motion is DENIED 15 WITHOUT PREJUDICE and may be brought again once Plaintiff names the Doe Defendants as 16 defendants or when the Doe Defendants have identified themselves. As there is no basis for giving 17 any credence to an unsworn statement made by an anonymous person, the Court finds it 18 inappropriate to quash the subpoena, thereby dismissing the Doe Defendants from this case, before 19 Plaintiff has an opportunity to learn Does’ identities and to determine whether jurisdiction is proper. 20 Accordingly, the Doe Defendants’ motions to proceed anonymously and quash are DENIED. 21 IT IS SO ORDERED. 22 23 Dated: November 30, 2011 _______________________________ Maria-Elena James Chief United States Magistrate Judge 24 25 26 27 28 2

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