AF Holding, LLC v. Doe

Filing 45

Order by Hon. Samuel Conti granting 20 Defendant's Motion to Require Undertaking.(sclc2, COURT STAFF) (Filed on 3/18/2013)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 ) ) ) ) ) ) ) ) ) ) ) ) United States District Court For the Northern District of California 9 10 AF HOLDINGS, LLC, Plaintiff, 11 v. 12 13 ANDREW MAGSUMBOL, Defendant. 14 Case No. 12-4221 SC ORDER GRANTING DEFENDANT'S MOTION TO REQUIRE UNDERTAKING PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 1030 15 16 I. 17 INTRODUCTION Now before the Court is Defendant Andrew Magsumbol's 18 ("Defendant") motion to require undertaking. 19 Defendant's Motion asks the Court to require Plaintiff AF Holdings, 20 LLC ("Plaintiff"), a foreign corporation, to post an undertaking 21 with the Court pursuant to California Code of Civil Procedure 22 section 1030. 23 ("Opp'n"), 33 ("Reply"), and appropriate for resolution without 24 oral argument, Civ. L.R. 7-1(b). 25 the Court GRANTS Defendant's Motion. 26 /// 27 /// 28 /// See id. ECF No. 20 ("Mot."). The motion is fully briefed, ECF Nos. 32 For the reasons explained below, 1 II. DISCUSSION 2 Though there is no provision of the Federal Rules of Civil 3 Procedure relating to security for costs, "federal district courts 4 have the inherent power to require plaintiffs to post security for 5 costs." 6 573, 574 (9th Cir. 1994). 7 district courts follow the forum state's practice regarding 8 security for costs, an especially common occurrence when a non- 9 resident party is involved. United States District Court For the Northern District of California 10 Simulnet E. Assocs. v. Ramada Hotel Operating Co., 37 F.3d In exercising this power, federal Id. Section 1030 of the California Code of Civil Procedure allows 11 for an undertaking "to secure an award of costs and attorney's 12 fees," which may be awarded if (1) "the plaintiff resides out of 13 state or is a foreign corporation" and (2) "there is a reasonable 14 possibility that the moving defendant will obtain judgment in the 15 action . . . ." 16 California resident sued by an out-of-state resident to secure 17 costs in light of the difficulty of enforcing a judgment for costs 18 against a person who is not within the court's jurisdiction . . . 19 [and] prevent out-of-state residents from filing frivolous lawsuits 20 against California residents." 21 12-2396 EMC, 2013 WL 450383, at *2 (quoting Alshafie v. Lallande, 22 171 Cal. App. 4th 421, 428 (Cal Ct. App. 2009) (internal quotation 23 marks omitted)). The purpose of this statute is to "enable a AF Holdings LLC v. Navasca, No. C 24 There is no dispute in this matter that Plaintiff is a foreign 25 corporation, as alleged in Plaintiff's own First Amended Complaint: 26 "[Plaintiff] is a limited liability company organized and existing 27 under the laws of the Federation of Saint Kitts and Nevis." 28 No. 12 ("FAC") ¶ 2. ECF Nor is there a dispute that Defendant is a 2 1 California citizen. Id. ¶ 4. The only remaining issues to 2 consider are the possibility of Defendant obtaining judgment in 3 this action, and the Ninth Circuit's guidance on the imposition of 4 bonds. 5 California Code of Civil Procedure section 1030 requires only 6 that there be a "reasonable possibility" that the moving defendant 7 will obtain judgment in the action. 8 See, e.g., Navasca, 2013 WL 450383, at *2. 9 that Plaintiff's evidence supporting its infringement claim is Here, Defendant argues United States District Court For the Northern District of California 10 weak. 11 that Plaintiff's core allegations of infringement -- mere 12 association of Defendant's Internet Service Provider subscription 13 information with the Internet Protocol address linked to the 14 allegedly infringed file -- is insufficient to establish that the 15 subscriber was the person who allegedly infringed copyright. 16 e.g., Navasca, 2013 WL 450383, at *2-3; SBO Pictures, Inc. v. Does 17 1-3036, No. 11-4220 SC, 2011 WL 6002620, at *3 (N.D. Cal. Nov. 30, 18 2011). 19 Defendant himself actually infringed the file at issue here, 20 despite its surprising assertion that it possesses such details but 21 chose not to describe them in its reply brief or complaint. 22 Reply at 8-9. 23 place on Defendant a higher burden of proof than he has under the 24 law. 25 possibility of obtaining judgment. 26 Mot. at 8-12. This is a relatively low bar. This Court and others have held repeatedly See, Plaintiff provides no additional details to indicate that See Plaintiff's other arguments all involve attempts to The Court finds that Defendant has shown a reasonable Therefore, following this Court's rulings in previous, almost- 27 identical cases, the Court will require Plaintiff to post an 28 undertaking in this matter. See Navasca, 2013 WL 450383 at *4; AF 3 1 Holdings v. Trinh, No. 12-02393 CRB, 2012 U.S. Dist. LEXIS 161394, 2 at *3 (N.D. Cal. Nov. 9, 2012). 3 whether the amount of the undertaking Defendant requests is 4 appropriate. 5 undertaking of $48,000 in costs and fees after determining that the 6 originally requested undertaking of $88,000 was excessive because 7 Defendant's counsel's proposed fees were not reasonable given 8 Defendant's characterization of the case as frivolous and simple. 9 2012 U.S. Dist. LEXIS 161394 at *3. United States District Court In Trinh, for example, this Court required an In this case, Defendant's counsel expects to incur $73,875 in 10 For the Northern District of California The only remaining question is 11 costs and fees, estimating about 293 hours of work at a $250 per 12 hour billing rate. 13 amount excessive. 14 hours he might spend on this case is unreasonably high, especially 15 since he is, by now, an old hand in these matters. 16 concludes, in line with its previous decisions, that a total 17 undertaking of $48,000 is appropriate. 18 a lodestar of $37,500, calculated by multiplying Defendant's 19 counsel's $250 per hour billing rate by an estimated 150 hours of 20 work, plus Defendant's estimated $10,500 in costs. Mot. at 17. The Court finds the requested Defendant's counsel's estimation of the total The Court That amount is comprised of 21 In granting Defendant's motion, the Court is cognizant of 22 Plaintiff's concerns about having to post an undertaking each time 23 it attempts to pursue a copyright infringement claim. 24 4. 25 that copyright infringement cases frequently take place in other 26 courts without the "special disadvantage" of plaintiffs being 27 required to post undertakings. 28 in one of those other courts, and in this Court, undertakings for See Reply at However, the Court finds unconvincing Plaintiff's protestations See id. 4 Plaintiff is not presently 1 foreign corporations may be required under California law. 2 3 III. CONCLUSION 4 For the reasons explained above, the Court GRANTS Defendant 5 Andrew Magsumbol's Motion to Require an Undertaking. Plaintiff AF 6 Holdings, LLC is required to post an undertaking of $48,000 with 7 the Court within thirty (30) days of this Order's signature date, 8 or this action may be dismissed with prejudice. 9 United States District Court For the Northern District of California 10 IT IS SO ORDERED. 11 12 Dated: March 18 ___, 2013 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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