New Sensations, Inc v. Does 1 - 1474

Filing 88

ORDER by Judge Maria-Elena James denying 84 Motion to Quash re Doe Defendant 389 (cdnS, COURT STAFF) (Filed on 12/5/2011)

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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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ORDER DENYING DOE
DEFENDANT #389's MOTION TO
QUASH

DOES 1-1,474,
Docket No. 84

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Defendants.

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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 December 1, 2011, Doe Defendant #389 filed a Motion to Quash. Dkt. No. 84. In his

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motion, Doe #389 argues that joinder is improper and that the Court lacks jurisdiction over him. As

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to the first argument, the Court addressed this issue at length in its September 22 Order and finds

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that it is without merit at this stage of the litigation. Dkt. No. 13 at 6:22-11:10. As to the second

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argument, the Court finds that any motion to quash based on jurisdictional grounds is premature.

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See, e.g., New Sensations, Inc. v. Does 1-1,745, 2011 WL 2837610, at *1 (N.D. Cal. Jul. 18, 2011);

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Call of the Wild Movie, LLC v. Smith, No. 10-0455, 2011 WL 1807416, at *9 (D.D.C. May 12,

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

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2011). Rule 12(b)(2) permits defendants to move to dismiss for lack of personal jurisdiction.

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Although the Doe Defendant moves the Court to dismiss the action against him for lack of personal

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jurisdiction, he is not yet a defendant. If and when Plaintiff names him as a defendant, he will be

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able to raise this defense. Once Plaintiff amasses enough evidence and names the Does, it will then

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have the burden to present a prima facie case supporting personal jurisdiction over defendants. See

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Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003).

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

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For the Northern District of California

At that time, the Doe Defendant may present his affidavit asserting that he has never engaged in

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UNITED STATES DISTRICT COURT

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contacts to establish personal jurisdiction. With evidence from both sides, jurisdiction will be

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decided on a full record. At this time, however, without any named defendants, the motion is not yet

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ripe. The motion is DENIED WITHOUT PREJUDICE and may be brought again once Plaintiff

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names the Doe Defendant as a defendant or when the Doe Defendant has identified himself. As

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there is no basis for giving any credence to an unsworn statement made by an anonymous person,

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the Court finds it inappropriate to quash the subpoena, thereby dismissing the Doe Defendant from

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this case, before Plaintiff has an opportunity to learn the Doe Defendant’s identity and to determine

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whether jurisdiction is proper.

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IT IS SO ORDERED.

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Dated: December 5, 2011
_______________________________
Maria-Elena James
Chief United States Magistrate Judge

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