New Sensations, Inc v. Does 1 - 1474

Filing 81

ORDER by Judge Maria-Elena James denying 69 Motion to Quash; denying 75 Motion to Proceed Anonymously re: Doe Defendant 152 (cdnS, COURT STAFF) (Filed on 12/1/2011)

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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, 7 v. 8 DOES 1-1,474, 9 ORDER DENYING DOE DEFENDANT #152's MOTION TO QUASH; MOTION TO PROCEED ANONYMOUSLY (I.P. Address Defendants. Docket Nos. 69, 75 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 30, 2011, Doe Defendant #152 (I.P. Address filed a Motion 25 to Proceed Anonymously and a Motion to Quash. Dkt. Nos. 69, 75. In his motions, Doe #152 26 argues that Plaintiff has failed to establish a prima facie case of copyright infringement against him, 27 that joinder is improper, and that the Court lacks jurisdiction over him. As to the first two 28 arguments, the Court has addressed them at length in its September 22 Order and finds they are argument, the Court finds that any motion to quash based on jurisdictional grounds is premature. 3 See, e.g., New Sensations, Inc. v. Does 1-1,745, 2011 WL 2837610, at *1 (N.D. Cal. Jul. 18, 2011); 4 Call of the Wild Movie, LLC v. Smith, No. 10-0455, 2011 WL 1807416, at *9 (D.D.C. May 12, 5 2011); Voltage Pictures, LLC v. Does 1–5,000, No. 10-0873, WL 1807438, at *8 (D.D.C. May 12, 6 2011). Rule 12(b)(2) permits defendants to move to dismiss for lack of personal jurisdiction. 7 Although the Doe Defendant moves the Court to dismiss the action against him for lack of personal 8 jurisdiction, he is not yet a defendant. If and when Plaintiff names him as a defendant, he will be 9 able to raise this defense. Once Plaintiff amasses enough evidence and names the Does, it will then 10 have the burden to present a prima facie case supporting personal jurisdiction over defendants. See 11 Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003). 12 For the Northern District of California without merit at this stage of the litigation. Dkt. No. 13 at 5:10-6:4, 6:22-11:10. As to the third 2 UNITED STATES DISTRICT COURT 1 At that time, the Doe Defendant may present his affidavit asserting that he has never engaged in 13 business with Plaintiff and that his activities with the forum state do not meet the requisite minimum 14 contacts to establish personal jurisdiction. With evidence from both sides, jurisdiction will be 15 decided on a full record. At this time, however, without any named defendants, the motion is not yet 16 ripe. The motion is DENIED WITHOUT PREJUDICE and may be brought again once Plaintiff 17 names the Doe Defendant as a defendant or when the Doe Defendant has identified himself. As 18 there is no basis for giving any credence to an unsworn statement made by an anonymous person, 19 the Court finds it inappropriate to quash the subpoena, thereby dismissing the Doe Defendant from 20 this case, before Plaintiff has an opportunity to learn the Doe Defendant’s identity and to determine 21 whether jurisdiction is proper. 22 Further, as to Plaintiff’s motion to proceed anonymously, if Doe 152 wishes to appear in this 23 action anonymously or otherwise, she must follow the proper procedures for doing so. At a 24 minimum, the Court and the parties must be informed of the litigant’s identity. If the litigant wishes 25 to protect her identity from the public, the litigant may use a pseudonym in public filings only after 26 receiving permission for good cause shown. Defendant is advised that the Ninth Circuit court of 27 appeals allows the use of pseudonyms only in the most unusual cases. See, e.g., Does I thru XXIII v. 28 2 1 Advanced Textile Corp., 214 F.3d 1058, 1067–68 (9th Cir. 2000). Accordingly, Doe 152's motions 2 are DENIED WITHOUT PREJUDICE. 3 IT IS SO ORDERED. 4 5 Dated: December 1, 2011 _______________________________ Maria-Elena James Chief United States Magistrate Judge 6 7 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 3

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