AF Holdings, LLC v. Doe

Filing 10

Judicial Referral for Purpose of Determining Relationship of Cases re 12-2392. Signed by Judge Samuel Conti on 06/12/2012. (sclc2, COURT STAFF) (Filed on 6/12/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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AF HOLDINGS LLC,
Plaintiff,

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v.

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For the Northern District of California

United States District Court

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JOHN DOE,

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Defendant.

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Case Nos. 12-2404-SC
12-2405-SC
SUA SPONTE JUDICIAL
REFERRAL FOR PURPOSE OF
DETERMINING RELATIONSHIP

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I.

INTRODUCTION
Pursuant to Civil Local Rule 3-12(c), the undersigned hereby

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REFERS the cases listed above to District Judge Jeffrey S. White

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for a determination of whether they are related to Case No. 12-

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2392-JSW.

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concurrently filed cases are related.

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are identified below.

Judge White may also wish to inquire whether ten other
The concurrently filed cases

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II.

BACKGROUND

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On May 10, 2012, Plaintiff AF Holdings LLC ("Plaintiff") filed

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at least thirteen complaints in the Northern District, all alleging

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copyright infringement by an unnamed John Doe defendant.

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is captioned "AF Holdings LLC v. John Doe."

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forth each case's number and the presiding judge as of the date of

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this Referral:

Each case

The chart below sets

Presiding

12-2392

J. White

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12-2393

J. Breyer

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12-2394

J. Koh

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12-2396

J. Chen

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12-2397

J. Illston

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12-2403

J. Breyer

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12-2404

J. Conti

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12-2405

J. Conti

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United States District Court

Case No.

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For the Northern District of California

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12-2408

J. Hamilton

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12-2411

J. Hamilton

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12-2415

J. Lloyd

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12-2416

J. Alsup

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12-2417

J. Koh

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The documents filed in these cases appear to be form

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documents, materially identical except for one or two details.

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example, the complaints appear to be materially identical except

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for particulars contained in each pleading's fifth paragraph.

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Other filings also appear to be form documents (e.g., form

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declarations, form ex parte applications).

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otherwise specified, citations in this referral are to docket

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entries in Case No. 12-2404-SC, which provide representative

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examples.

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For

Accordingly, unless

In each case, Plaintiff identifies itself as "a limited

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liability company organized and existing under the laws of the

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Federation of Saint Kitts and Nevis," and the copyright holder of

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an adult entertainment film titled "Popular Demand" (the "Video").

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ECF No. 1 ("Compl.") ¶¶ 2-3.

Plaintiff always alleges that an

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unnamed Doe defendant illegally downloaded the Video, and allowed

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others to download it, using a peer-to-peer file-sharing protocol

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("BitTorrent").

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Pictures, Inc. v. Does 1-3036, 11-4220 SC, 2011 WL 6002620, at *1

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n.1 (N.D. Cal. Nov. 30, 2011) (explaining BitTorrent technology and

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terminology).

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is unknown to Plaintiff.

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only by an Internet Protocol address ('IP Address'), which is a

See generally Compl. ¶¶ 8-17; see also SBO

Each complaint recites that "Defendant's actual name
Instead, Defendant is known to Plaintiff

United States District Court

For the Northern District of California

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number assigned to devices, such as computers, that are connected

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to the Internet."

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between the complaints is the IP address, and hence the identity,

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of the alleged defendant.

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5 (IP address of 24.6.73.58) with Case No. 12-2405-SC, ECF No. 1 ¶

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5 (IP address of 107.3.130.61); see also Case No. 12-2392-JRW, ECF

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No. 1 ¶ 5 (IP address of 71.198.110.43).1

Compl. ¶ 5.

The only material difference

Compare Case No. 12-2404-SC, ECF No. 1 ¶

At the time of this writing, Plaintiffs have filed ex parte

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applications for leave to take expedited discovery in the

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undersigned's two cases, as well as the case assigned to Judge

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White and most, but not all, of the similar cases filed in this

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District.

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parte applications seek to compel discovery from the Internet

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Service Provider ("ISP") who, according to Plaintiff, owns the IP

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address identified in the complaint.

See, e.g., ECF No. 8 ("EPA").

Each of Plaintiff's ex

E.g., id. at 1-2.

As with

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All thirteen complaints appear to be identical but for the IP
address contained in paragraph 5. Plaintiff appears to have filed
a separate case for each IP address, perhaps mindful that judges in
the Northern District have, in similar cases, criticized the
practice of joining multiple unnamed defendants in a single action.
See, e.g., SBO Pictures, 2011 WL 6002620, at *2-4.

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the complaints, the ex parte applications appear to be identical to

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each other but for the IP address (which matches the one in the

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complaint).

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when it comes to name of the ISP from whom Plaintiff seeks

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discovery.

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been filed so far name only two ISPs.

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Communications LLC ("Comcast").

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ECF No. 8 at 2.

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e.g., Case No. 12-2397-SI, ECF No. 10 at 2.2

United States District Court

Notably, the eleven ex parte applications that have
Nine refer to Comcast Cable

See, e.g., Case No. 12-2404-SC,

Two refer to SBC Internet Services ("SBC").

See,

Civil Local Rule 3-12(c) provides, in pertinent part, that

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For the Northern District of California

The ex parte applications also differ from each other

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"[w]henever a Judge believes that a case pending before that Judge

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is related to another case, the Judge may refer the case to the

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Judge assigned to the earliest-filed case with a request that the

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Judge assigned to the earliest-filed case consider whether the

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cases are related."

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substantially the same parties, property, transaction or event; and

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. . . [i]t appears likely that there will be an unduly burdensome

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duplication of labor and expense or conflicting results if the

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cases are conducted before different Judges."

Cases are related when "[t]he actions concern

Civ. L. R. 3-12(a).

The undersigned believes the cases filed by Plaintiff in the

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Northern District on or around May 10, 2012 may be related.

The

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undersigned acknowledges that the Doe defendants may be different

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in each case, assuming that the IP addresses represent different

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defendants.

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obtaining discovery from only two ISPs, Comcast and SBC.

But currently Plaintiff's efforts are directed at

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At the time of this Referral, Plaintiff does not appear to have
filed an ex parte application in two of the cases pending in this
District: 12-2415-HRL and 12-2417-LHK. Perhaps coincidentally,
these are the only two cases assigned to judges seated in San Jose.

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Experience suggests that most if not all of these cases will likely

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settle very shortly after discovery is obtained from the ISPs, if

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indeed it is.

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(discussing settlement practices in this type of case).

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undersigned is concerned about duplication of judicial resources

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and the possibility of inconsistent rulings in what appear to be

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virtually identical cases.3

The

The undersigned's review of those cases indicates that the

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See SBO Pictures, 2011 WL 6002620, at *3-4

earliest-filed case is the one assigned to Judge White.

United States District Court

For the Northern District of California

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III. CONCLUSION

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Given the apparent similarity of the complaints and claims in

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the two cases captioned above and the case before Judge White, the

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undersigned REFERS Case Nos. 12-2404 and 12-2405 to Judge White

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with a request that he determine whether these three cases are

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related.

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ten cases identified in this Referral, or any other cases, are also

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related.

Judge White may also wish to determine whether the other

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Dated: June 12, 2012

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UNITED STATES DISTRICT JUDGE

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Some colleagues have already ruled on the ex parte applications
pending before them, and some have referred the applications to
magistrate judges as discovery matters. See Case Nos. 12-2392, 122396, 12-2397, 12-2408, 12-2411, 12-2416 (granting ex parte
applications); 12-2393, 12-2403 (referred to magistrate).

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