New Sensations, Inc v. Does 1 - 1474

Filing 93

ORDER RE JURISDICTION Status Report due by 12/14/2011.. Signed by Judge Maria-Elena James on 12/7/2011. (cdnS, COURT STAFF) (Filed on 12/7/2011)

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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,
v.

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DOES 1-1,474,

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ORDER RE JURISDICTION

Defendants.
_____________________________________/

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For the Northern District of California

UNITED STATES DISTRICT COURT

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INTRODUCTION
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. This case is one of several “mass copyright” cases filed in this District

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on behalf of various plaintiffs against thousands of doe defendants accused of using BitTorrent

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technology to illegally download copyrighted files from the internet. See, e.g., Berlin Media Art v.

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Does 1-654, Case No. 11-3770-JSC; Boy Racer v. Does 2-52, Case No. 11-2834-LHK; Boy Racer v.

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Does 1-52, Case No. 11-2329-PSG; Pacific Century Intel, Ltd. v. Does 1-101, Case No.

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11.2533-DMR; Pacific Century Intel, Ltd. v. Does 1-129, Case No. 11-3681-HRL; MCGIP, LLC v.

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Does 1-149, Case No. 11-2331-LB; Hard Drive Productions, Inc. v. Does 1-188, Case No. 11-1566-

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JCS; Hard Drive Productions, Inc. v. Does 1-118, Case No. 11-01567-LB.

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On September 22, 2011, the Court granted Plaintiff’s Application for Leave to Take Limited

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Expedited Discovery. Dkt. No. 13. The Court permitted Plaintiff to serve subpoenas on Does 1-

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1,474’s Internet Service Providers (“ISPs”) by serving a Federal Rule of Civil Procedure 45

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

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

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

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

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subpoena). Id.

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DISCUSSION
Since granting Plaintiff’s request, it has become clear that jurisdiction is likely lacking over

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many of the Doe Defendants, and that venue is also improper. Several Doe Defendants have filed

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motions to dismiss and/or quash the subpoena, arguing that they have no connection with California.

identified themselves, the Court has subsequently utilized one of many free and publicly available

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For the Northern District of California

Although the Court has denied these motions as premature because the defendants have not

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UNITED STATES DISTRICT COURT

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services to look up the locations affiliated with the IP addresses for which Plaintiff seeks discovery.

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See Berlin Media Art e.k. v. Does 1-654, 2011 WL 36383080, at *2 (N.D. Cal. Oct. 18, 2011) (citing

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DigiProtect USA Corp. v. Does, 2011 WL 4444666, at *1 (S.D.N.Y. Sep. 26, 2011) (“[p]ublicly

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available software provides basic, or at least presumptive, geographic information about IP

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addresses”)). Selecting random IP addresses provided in Exhibit A of the Amended Complaint, the

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Court gathered the following presumptive geographic data:

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Doe 10, IP Address 108.12.181.37, is in New York, New York;

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Doe 100, IP Address 173.31.97.123, is in Davenport, Iowa;

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Doe 200, IP Address 173.71.138.44, is in Newport News, Virginia;

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Doe 400, IP Address 24.186.195.217, is in Seldan, New York;

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Doe 600, IP Address 68.103.234.4, is in Hutchinson, Kansas;

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Doe 800, IP Address 71.124.215.10, is in Boston, Massachusetts;

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Doe 1000, IP Address 72.90.76.157, is in Syracuse, New York;

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Doe 1300, IP Address 75.118.226.217, is in Louisville, Kentucky; and

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Doe 1400, IP Address 98.16.181.1, is in Lincoln, Nebraska.

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These results suggest that this Court lacks personal jurisdiction over the Doe Defendants;

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indeed, even without investigating the IP addresses, a cursory look at the carriers identified in the

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complaint suggests personal jurisdiction problems. For example, Exhibit A includes regional ISPs

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whose very names suggest they are located outside this District, such as Guadalupe Valley Telphone

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Cooperative, Alaska Communications Systems Group, and Iowa Telcom. Dkt. No. 1, Ex. A. For

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this reason alone, the Court in its discretion could have denied the motion for expedited discovery.

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Berlin Media Art, 2011 WL 36383080, at *3; DigiProtect USA Corp., 2011 WL 4444666 at *2 (a

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court may deny a request for early discovery if the plaintiff cannot make a prima facie showing of

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personal jurisdiction).

some point during the time period in question from a computer located in this District, the Court is

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not aware of any caselaw that suggests that it has personal jurisdiction over all 1,474 Defendants

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For the Northern District of California

Further, even if one or more of the unidentified defendants allegedly downloaded the file at

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UNITED STATES DISTRICT COURT

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based on this connection. As one court in this District noted, the logical extension of such an

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unprecedented holding “would be that everybody who used . . . BitTorrent would subject themselves

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to jurisdiction in every state.” On The Cheap. LLC v. Does 1–5011, 2011 WL 4018258 at *4 (N.D.

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Cal. Sep. 6, 2011). “[T]his is a far cry from the requirement that ‘there be some act by which the

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defendant purposefully avails itself of the privilege of conducting activities with the forum State,’

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which is the hallmark of specific jurisdiction.” Id. (quoting Burger King Corp. v. Rudzewicz, 471

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U.S. 462, 475 (1985)).

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In its Complaint, Plaintiff states that, “Although the true identity of each Defendant is

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unknown to the Plaintiff at this time, on information and belief, each Defendant may be found in this

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District, and/or the acts complained of herein occurred and/or have a significant effect within this

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District. Therefore, venue in this Court is proper in accordance with 28 U.S.C. §§ 1391(b) and

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1400(a).” Compl. at 1-2. This conclusory assertion is also insufficient to support venue. First,

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under the copyright venue provision, venue is proper “in the district in which the defendant or his

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agent resides or may be found.” 28 U.S.C. § 1400(a). Here, Plaintiff does not and likely cannot

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allege that each of the 1,474 defendants are found in this District. Thus, venue is not proper under

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section 1400. Second, in a federal question case venue is proper in a judicial district “in which a

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substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. §

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1391(b)(2). There is nothing in the Complaint, however, that suggests Plaintiff has a good faith

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basis for alleging that a substantial part of the events or omissions related to all 1,474 Doe

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Defendants occurred in this District.

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In short, all of the available information suggests that this Court does not have personal

argue that this determination is premature because the individual defendants might own property in

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California or do a sufficient amount of business here to confer jurisdiction. However, any such

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argument is unpersuasive. Berlin Media Art v. Does 1-654, Case No. 11-3770-JSC, Dkt. No. 15 at

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2. Moreover, given the ease by which the Court located presumptive geographic data for a random

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selection of IP Addresses in this case, the Court is troubled that Plaintiff has made no attempt to

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For the Northern District of California

jurisdiction over at least a large number of Doe Defendants named in this action. Plaintiff might

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UNITED STATES DISTRICT COURT

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identify those Doe Defendants for whom it has a good faith belief reside in California. Thus, the

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Court declines to continue to allow Plaintiff to have various ISPs disclose the sought-after subscriber

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information when Plaintiff has no good faith basis whatsoever to assert that this Court would have

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personal jurisdiction over the Doe Defendants. As another court has noted, “there is no justification

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for dragging into a[] [California] federal court, on a wholesale basis, a host of unnamed defendants

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over whom person jurisdiction clearly does not exist and-more importantly-as to whom [Plaintiff’s]

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counsel could readily have ascertained that fact.” CP Productions, Inc. v. Does 1-300, 2011 WL

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737761, at *1 (N.D. Ill. Feb. 24, 2011). To accept Plaintiff’s argument means that a Plaintiff

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alleging internet copyright infringement may sue hundreds of doe defendants in any district in the

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United States, regardless of where the defendants are likely to reside.

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Finally, good cause for granting a motion for early discovery may exist “where the need for

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the expedited discovery, in consideration of the administration of justice, outweighs the prejudice to

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the responding party.” OpenMind Solutions, Inc. v. Does 1-39, 2011 WL 4715200, at *2 (N.D. Cal.

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Oct. 7, 2011 (internal quotations and citation omitted). Where Plaintiff has made no effort to

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determine jurisdiction, the administration of justice is not served by requiring out-of-state recipients

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of subpoenas to bring challenges to the subpoenas in far-flung jurisdictions. Further, “[f]rom a

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judicial economy perspective, it makes more sense for Plaintiff to bring its case against these [doe

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defendants] in the court where they have a good faith belief that venue and personal jurisdiction are

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attainable and the case can actually be prosecuted.” Nu Image, Inc. v. Does 1-23,322, 2011 WL

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3240562, at *5 (D.D.C. Jul. 29, 2011).

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Plaintiff will not suffer any prejudice by merely being required to bring suit in the

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jurisdiction where it has a good faith belief, based on publicly available information, that the doe

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defendant resides. Indeed, many plaintiffs with similar cases have done just that. See, e.g., MCGIP,

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LLC v. Does 1-149, 2011 WL 4352110, at *3 n. 3 (N.D. Cal. Sep. 16, 2011). Thus, this is not a case

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where dismissing defendants outside this District deprives Plaintiff of the opportunity to discover the

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identities of those it contends infringed its copyright.
CONCLUSION

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Based on this analysis, the Court hereby ORDERS as follows:

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1)

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Plaintiff shall conduct a search to obtain geographic information about the IP
Addresses listed in its Complaint; and

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Plaintiff shall thereafter provide, as part of the declaration the Court previously

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ordered Plaintiff to produce (Dkt. No. 80), the location for each IP Address in its

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Complaint; and

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3)

For all IP Addresses outside this District, Plaintiff shall either: (a) file a voluntary

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dismissal without prejudice as to those Doe Defendants; or (b) show good cause as to

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why it has a good faith belief that jurisdiction exists and venue is proper as to each

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individual Doe Defendant. General arguments such as those discussed above will not

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suffice. Plaintiff must make a specific showing as to each Doe Defendant as to why it

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has a good faith belief that jurisdiction and venue are proper.

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The deadline for filing the declaration is hereby extended to December 14, 2011. Upon receipt of

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Plaintiff’s declaration, the Court shall issue an order detailing how this case shall proceed. Until the

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Court issues its further order, Plaintiff is hereby ORDERED not to send any further settlement

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demand letters. As to any Doe Defendants to whom Plaintiff has already sent a settlement demand

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letter, the Court ORDERS Plaintiff to provide a copy of this Order to said Doe Defendants by

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December 14, 2011, and inform them in a cover letter that they need not comply with the demand

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letter, pending resolution of the jurisdiction and venue issues addressed herein. Any settlement

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reached on or after the date of this Order will not be effective.

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IT IS SO ORDERED.

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Dated: December 7, 2011
_______________________________
Maria-Elena James
Chief United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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