Boy Racer, Inc. v. John Does 1-34

Filing 51

POST-HEARING BRIEFING ORDER RE: STANDING. Signed by Magistrate Judge Jonathan Goodman on 4/4/2012. (dkc)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 11-23035-GRAHAM/GOODMAN

BOY RACER, INC.,
Plaintiff,
v.
JOHN DOES 1-34,
Defendants.
____________________________________1

POST-HEARING BRIEFING ORDER RE: STANDING
Plaintiff filed this lawsuit against 34 "John Doe" defendants .

Plaintiff

alleges that the Does violated federal copyright laws by unlawfully downloading
an adult video using the BitTorrent file sharing protocol.

Plaintiff concedes that

its goal is to obtain discovery from internet service providers about individual
internet account holders and then to contact the account holders to obtain
additional information about whether the account holder is the person who
allegedly downloaded the adult video.
Plaintiff conceded at an April 2, 2012 hearing that the account holder may
not be the violator - and should therefore not necessarily ever be a named
defendant - because another person, other than the internet service account
holder, may have downloaded the video.

For example, the account holder's

spouse, child, friend, roommate or guest may have used a computer in the home
to download unlawfully the purportedly protected adult video .

Similarly, if the

internet service account is associated with a wireless network and the network is
not password protected or encrypted, then anyone with a wireless-enabled

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device who is within the network's range may have been the one who unlawfully
downloaded the video.
Three "John Does" filed motions challenging subpoenas issued to internet
service providers .

Specifically, John Does 8 and 32 , and another John Doe

whose IP address is 66 .229.114.127 filed the motions.

[ECF 13, 14 and 26].

After the Court scheduled the April 2, 2012 hearing on the motions, but before
the Court held the hearing, Plaintiff voluntarily dismissed , without prejudice, the
John Doe Defendant associated with the specific IP address listed above . [ECF
48] . At the hearing , Plaintiff explained that it dropped this particular John Doe
defendant because it had already filed a new lawsuit against only him.1
Therefore, the John Doe defendant named in the new case is no longer a party in
the instant case.
In response to the three motions challenging the subpoenas , Plaintiff
argued that the movants are seeking relief in the wrong court because the
subpoenas were actually issued by a federal district court in Illinois. Therefore,
Plaintiff contends that, pursuant to Federal Rule of Civil Procedure 45, the
movants cannot challenge the subpoenas here and must seek relief with the
Illinois federal district court.
Plaintiff also argues that movants lack standing because the subpoenas
were issued to the ISPs, not to the movants, and the ISPs did not object or file a
motion challenging the subpoenas.

Plaintiff advised that the separate lawsuit is designated as case number
12-21099-CIV-DLG and, fortuitously, the Clerk also assigned the case to United
States District Judge Donald L. Graham.

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However, the two remaining movants sought two types of relief concerning
the subpoenas:

an order quashing the subpoenas and a protective order,

pursuant to Federal Rule of Civil Procedure 26(c).
Rule 26(c) provides, in pertinent part, that U[a] party or any person from
whom discovery is sought may move for a protective order in the court where the
action is pending--or as an alternative on matters relating to a deposition, in the
court for the district where the deposition will be taken."
Although movants seek a protective order, neither Plaintiff nor movants
briefed the following potentially dispositive question: if a district court, other than
the district court in which a case was filed and is still pending, issues a
subpoena, then can non-parties to the case or the subpoena, such as the John
Doe movants, obtain a protective order under Rule 26 from the district court
where the case was filed and is still pending?2

2

Movants have not been specifically identified and Plaintiff has not yet
named them as individual defendants. Nevertheless, regardless of whether
movants are the ones who allegedly violated Plaintiff's intellectual property rights
by unlawfully downloading the adult video, it is movants ' information which is at
issue in the subpoenas.

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Therefore, Plaintiff and the two remaining movants shall submit a
memorandum of law on this issue, not to exceed three pages (excluding the
signature block and the certificate of service), by April 11, 2012.

DONE and ORDERED, in Chambers, in Miami, Florida, this

L }~

L

day

of April, 2012.

A AN GOODMAN
ED STATES MAGISTRATE JUDGE

Copies furnished to:
The Honorable Donald L. Graham
All counsel of record

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