AF Holdings, LLC v. Doe

Filing 29

ORDER by Judge Charles R. Breyer denying 25 Motion for Leave to File Motion for Reconsideration. (crblc1, COURT STAFF) (Filed on 12/6/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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AF HOLDINGS LLC,

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Plaintiff,

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No. C 12-02393 CRB
ORDER DENYING MOTION FOR
LEAVE TO FILE A MOTION FOR
RECONSIDERATION

v.
DAVID TRINH,

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Defendant.

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The Court is in receipt of Plaintiff AF Holdings LLC’s Motion for Leave to File a

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Motion for Reconsideration (dkt. 25, hereinafter “Motion”), which urges the Court to

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reconsider its Order of November 9, 2012 (dkt. 23, hereinafter “Order”), requiring Plaintiff to

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post an undertaking or face dismissal. To be granted leave to file a motion for

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reconsideration, a party must demonstrate one of the following:

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(1) That at the time of the motion for leave, a material difference in fact or law exists
from that which was presented to the Court before entry of the interlocutory order for
which reconsideration is sought. The party shall also show that in the exercise of
reasonable diligence the party applying for reconsideration did not know such fact or
law at the time of the interlocutory order; or
(2) The emergence of new material facts or a change of law occurring after the time of
such order; or
(3) A manifest failure by the court to consider material facts or dispositive legal
arguments which were presented to the Court before such interlocutory order.

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Civil L.R. 7-9(b).1 Plaintiff’s Motion relies on the Rule’s third prong, see Mot. at 1, but fails

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to identify any unconsidered material facts or dispositive legal arguments.

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Plaintiff erroneously cites to Local Rule 7-3(b)(3), which does not exist. See Mot. at 1.

Plaintiff’s first argument is that the Court failed to use the word “contributory” in its

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Order, but Plaintiff goes on to acknowledge both that the Court found, broadly, that

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“Plaintiff’s current evidence of infringement is weak,” and that Defendant had addressed the

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contributory infringement claim in his moving papers. Id. at 2-3. That Plaintiff disagrees

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with the Court does not render the Court’s analysis a manifest failure.

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Plaintiff next argues that its negligence claim is simply an “alternative theory.”

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See id. at 5. That might be so, but it is a theory that the Court continues to find deeply

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flawed. See Order at 2. Plaintiff’s attempt to distinguish SBO Pictures, Inc. v. Does 1-3036,

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No. 11-4220 SC, 2011 WL 6002620, at *3 (N.D. Cal. Nov. 30, 2011), is likewise

United States District Court
For the Northern District of California

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unpersuasive. The Court cited that case not because the procedural posture was the same as

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it is here, but because Judge Conti there noted that “many courts” had reached the same

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conclusion about IP addresses. See Order at 2. Defendant’s moving papers included

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additional authorities for that proposition, including some from Plaintiff’s counsel. See Mot.

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to Post Undertaking (dkt. 20) at 6-10.
Plaintiff’s final argument, that the Court’s Order is “inapposite to [the] principle” that

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the “United States is supposed to demonstrate leadership in promoting the rule of law” is

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simply hyperbolic. Although the Court recognizes, and recognized in its Order, that posting

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an undertaking of any real amount is inconvenient to Plaintiff, see Order at 3 (reiterating

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Plaintiff’s concern that undertaking would bar it from proceeding in any copyright case and

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concluding that undertaking should be “no greater than necessary”), Plaintiff’s doomsday

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predictions about the fate of commerce in California, see Mot. at 9 (“many organizations

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might simply choose to exclude California residents from accessing their businesses”) strain

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its credibility. Only this case is before the Court, and Defendant has met his burden in this

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case.

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Accordingly, the Motion for Leave to File a Motion for Reconsideration is DENIED.

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IT IS SO ORDERED.

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Dated: December 6, 2012

G:\CRBALL\2012\2393\order re reconsideration.wpd

CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE
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