AF Holdings, LLC v. Doe

Filing 45

ORDER by Judge Charles R. Breyer granting 32 Motion to Dismiss. (crblc1, COURT STAFF) (Filed on 2/25/2013)

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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 GRANTING MOTION TO
DISMISS WITH PREJUDICE

v.
DAVID TRINH,
Defendant.

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Plaintiff AF Holdings brought suit against Defendant David Trinh, alleging copyright

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infringement and negligence in connection with someone at Defendant’s IP address

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accessing pornography over the Internet. See generally Compl. (dkt. 1) and FAC (dkt. 13).

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In November 2012, the Court granted Defendant’s Motion to Post an Undertaking.

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See generally Order re Undertaking (dkt. 23). The Court found that Defendant had met his

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burden under California Code of Civil Procedure § 1030, which required that he demonstrate

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that (1) Plaintiff is a foreign corporation (Plaintiff is organized under the laws of the

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Federation of Saint Kitts and Nevis) and (2) that “there is a reasonable probability that the

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moving defendant will obtain judgment” (Plaintiff’s case was weak). Id. at 2. The Court

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recognized that the bond amount should be “significant but no greater than necessary.” Id. at

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3. It ordered Plaintiff to post an undertaking of $48,000 with the Court within thirty days “or

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face dismissal of the action.” Id. at 4.

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Plaintiff moved the Court to reconsider its Order, and, in December 2012, the Court

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declined to do so. See Order re Reconsideration (dkt. 29) at 2 (“That Plaintiff disagrees with

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the Court does not render the Court’s analysis a manifest failure.”). Thirty days have

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elapsed, and Plaintiff did not post the undertaking. Defendant now moves to dismiss

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Plaintiff’s case for failure to post the undertaking, pursuant to § 1030(a) as well as Federal

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Rule of Civil Procedure 41(b). See MTD (dkt. 32) at 3. The Court GRANTS the Motion.1

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Defendant argues that it “has not posted the undertaking because, in addition to being

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well outside of Plaintiff’s means, payment of the undertaking would prejudice Plaintiff,

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setting a highly unfavorable precedent for not only Plaintiff but other similarly situated

United States District Court
For the Northern District of California

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copyright holders as well.” Opp’n (dkt. 35) at 1. Neither is a reason not to dismiss. Plaintiff

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has already argued, in connection with both the original Motion to Post Undertaking and the

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Motion for Reconsideration, that it should not have to post an undertaking. It lost that

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argument. Moreover, a plaintiff can obtain relief from a bond requirement if it is unable to

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pay. See Baltayan v. Getemyan, 90 Cal. App. 4th 1427, 1433-34 (2001) (“[w]here the

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plaintiff establishes indigency, a trial court has discretion to waive the posting of security

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under Code of Civil Procedure section 1030.”); Pittman v. Avish Partnership, No. 10-1390,

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2011 WL 9160942, at *5 (C.D. Cal. June 2, 2011) (noting, in case applying § 1030, that

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“[t]he party seeking relief from the requirement of posting a bond or undertaking has the

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burden of proof to show entitlement to such relief.”). The Central District, in Pittman, id.,

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held that, at a minimum, “a sworn statement of hardship that includes some financial

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information but no supporting documentation may be sufficient.” Plaintiff has offered no

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support for its contention that the bond is “well outside of [its] means.” See Opp’n at 1. The

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case will therefore be dismissed.

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Defendant urges that the Court dismiss with prejudice, so that he can achieve some

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finality, and also be a prevailing party under the Copyright Act, 17 U.S.C. § 505, able to

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recover his attorneys’ fees. See MTD at 8. Plaintiff urges that the Court dismiss without

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Counsel for Plaintiff failed to appear at the motion hearing held on February 22, 2013, but that
is not the Court’s basis for granting the Motion.
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prejudice “so that Plaintiff may take appropriate steps to bolster the evidentiary basis of its

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claims and seek justice for the infringement of its copyright.” See Opp’n at 12. It reasons

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that “a dismissal with prejudice is a dismissal on the merits. If this Court dismisses this case,

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it dismisses this case for only one reason: that Plaintiff has failed to post a bond. This alone

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cannot justify a dismissal on the merits.” Id. at 14.
Section 1030(d) states that “The Plaintiff shall file the undertaking not later than 30

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days after service of the court’s order requiring it or within a greater time allowed by the

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court. If the plaintiff fails to file the undertaking within the time allowed, the plaintiff’s

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action or special proceeding shall be dismissed.” The section does not state whether

United States District Court
For the Northern District of California

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dismissal should be with or without prejudice, and the Ninth Circuit has not appear to have

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spoken on this issue. Rule 41(b), however, permits a court to dismiss a complaint “[i]f the

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plaintiff fails to prosecute or to comply with these rules or a court order.” Dismissals under

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Rule 41(b) operate as adjudications on the merits. See Fed. R. Civ. P. 41(b); Stewart v. U.S.

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Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (explaining that “with prejudice” is shorthand for

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an adjudication on the merits).

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Although the parties debate the relevance of a variety of cases from California2 and

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from other federal jurisdictions,3 see MTD at 5-6, Opp’n at 6-11, Plaintiff concedes that “a

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Court may dismiss with prejudice where Plaintiff fails to post an ordered bond,” Opp’n at 8

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(discussing Pittman, 2011 WL 9160942). Plaintiff here failed to post the bond that was

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ordered by the Court, and has not demonstrated that it is unable to do so. There is no

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compelling reason to let the case languish, or to give Plaintiff additional time to bolster

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evidence it could have sought before brining suit.
Accordingly, the Court GRANTS the Motion to Dismiss with prejudice pursuant to

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//

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//

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See, e.g., Lyons v. Wickhorst, 42 Cal.3d 911 (Cal. 1986) (explaining that “plaintiff’s failure
to give security for costs” is a basis for dismissal with prejudice in California).
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See, e.g., Atlanta Shipping Corp. v. Chemical Bank, 818 F.2d 240, 245 (2d Cir. 1987) (in
which lower court dismissed case with prejudice when plaintiff failed to post security).
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Rule 41(b).
IT IS SO ORDERED.

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Dated: February 25, 2013

CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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

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