Openmind Solutions, Inc. v. Does 1-2925

Filing 12

NOTICE by Electronic Frontier Foundation AMICUS CURIAE THE ELECTRONIC FRONTIER FOUNDATIONS REQUEST FOR JUDICIAL NOTICE (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G)(Mudd, Charles)

EXHIBIT G

Case3:10-cv-04382-SI Document31

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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IO GROUP, INC.,

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Plaintiff,

United States District Court
For the Northern District of California

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No. C 10-04382 SI
ORDER SEVERING DOE 1 AND
DISMISSING CLAIMS AGAINST DOES 2
- 435 WITHOUT PREJUDICE;
MODIFYING DISCOVERY ORDER

v.
DOES 1 - 435,

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Defendant.

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/

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Plaintiff filed this copyright infringement case on September 28, 2010, alleging that 435 “Doe”

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defendants illegally reproduced, distributed and publicly shared copies of plaintiff’s copyright protected

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works on a peer-to-peer network, “eDonkey 2000.” Complaint ¶ 1. Plaintiff identified the IP addresses

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associated with each of the Does, as well as the particular registered work or works each Doe defendant

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allegedly reproduced on eDonkey2000 and the date of that reproduction. Id., ¶¶ 22 - 456. On October

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8, 2010, plaintiff moved the Court for permission to take early discovery, specifically to issue a

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subpoena to internet service provider Comcast Internet in order to identify the name, address, e-mail

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address and telephone number of the subscribers associated with the identified IP addresses. On

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October 15, 2010, Magistrate Judge Ryu granted the motion for early discovery, but required Comcast

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to provide each subscriber identified with notice of the subpoena and sufficient time to object to the

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discovery and/or move to quash the subpoena before releasing the information to plaintiff. Docket No.

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9.

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After a subscriber, J.W., moved to quash the subpoena,1 Judge Ryu severed J.W.’s claims from

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J.W. also moved for a protective order and to dismiss the claims for lack of personal
jurisdiction. See docket Nos. 11-13.

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this case.2 In light of the high likelihood that at least one of the hundreds of other Doe defendants will

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decline to consent to the jurisdiction of a magistrate judge, Judge Ryu ordered that this action – the

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claims against the remaining Doe defendants – be reassigned to an Article III judge. Docket No. 28.

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At that time, Judge Ryu also denied plaintiff’s motion to extend the deadline for service on the Doe

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defendants due to Comcast’s inability to identify all of the Doe defendants before May 31, 2011.
This case was subsequently reassigned to the undersigned Judge. The complaint presents similar

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allegations to another case presently before this Judge, IO Group, Inc. v. Does 1 - 19, Case No. 10-3851.

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That case also asserted copyright infringement claims against 19 Doe defendants who allegedly

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reproduced one or more of plaintiff’s works on eDonkey2000. After this Court granted plaintiff leave

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United States District Court
For the Northern District of California

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to serve early discovery in Earthlink, Inc., this Court considered a motion to quash filed by a subscriber,

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“Doe Defendant 4.” See Case No. 10-3851, Docket No. 23. In ruling on that motion, the Court found

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that plaintiff had improperly joined Does 1 through 19. December 7, 2010 Order at 4-6. The Court held

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that the complaint lacked any specific factual allegations to support plaintiff’s claims that the Doe

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defendants conspired or otherwise acted in concert. Id. at 5. Instead, the only specific factual allegations

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were that the Doe defendants used the same peer-to-peer network to reproduce plaintiff’s works on

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different dates. Those allegations, however, were insufficient as a matter of law to support joinder and

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allow plaintiff to benefit from filing one, as opposed to many, lawsuits. Id. at 5. In so ruling, the Court

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relied on other cases where courts, faced with similarly deficient allegations, sua sponte severed the

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claims of the misjoined defendants and dismissed the severed defendants. Id. at 5 (citing Laface

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Records, LLC v. Does 1 - 38, 2008 U.S. Dist. LEXIS 14544 (E.D.N.C. Feb. 27, 2008); Interscope

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Records v. Does 1-25, 2004 U.S. Dist. LEXIS 27782 (M.D. Fla. Apr. 1, 2004); BMG Music v. Does,

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2006 U.S. Dist. LEXIS 53237, No. 06-01579 (Patel, J.) (N.D. Cal. July 31, 2006); Twentieth Century

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Fox Film Corp. v. Does 1-12, No. C 04-04862 WHA (N.D. Cal. Nov. 16, 2004) (Alsup, J.)).

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This complaint suffers from the same defects the Court identified in IO Group, Inc. v. Does 1-

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19. There are no facts to support the assertion that defendants conspired with each other to reproduce

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plaintiff’s works on eDonkey 2000 and the allegations that defendants simply used the same peer-to-

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The claims against J.W will proceed before Judge Ryu as No. C 10-5821 DMR.
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peer network to download plaintiff’s works – on many different days at many different times – is

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insufficient to allow plaintiff to litigate against hundreds of different Doe defendants in one action.

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As such, the Court HEREBY Orders that Does 2 through 435 are SEVERED and DISMISSED

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from this action. Plaintiff can refile separate complaints against Doe defendants 2 through 435 within

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twenty (20) days from the date of this Order. If plaintiff files new complaints within twenty (20) days,

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such actions shall be deemed a continuation of the original action for purposes of the statute of

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limitations.
In light of the severance and dismissal, the Order authorizing early discovery and the issuance

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of a subpoena on Comcast is now overbroad. Docket No. 9. As such, the Court’s October 15, 2010

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United States District Court
For the Northern District of California

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Order is HEREBY modified to allow discovery only as to Doe 1 (see Complaint ¶ 22), and is stayed in

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all other respects. Plaintiff is hereby ORDERED to serve a copy of this Order on Comcast within two

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days of its issuance. After such service, Comcast shall not disclose any further information regarding

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Does 2 through 435 absent further order of this Court. This Order is without prejudice to plaintiff

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seeking discovery to identify each severed Doe, if and when plaintiff files new complaints against the

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individual Does. Relatedly, this Order does not prevent plaintiff from using the information already

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disclosed by Comcast, for example, to file new lawsuits identifying former Doe defendants by name or

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other identifying information.

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IT IS SO ORDERED.

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Dated: January 10, 2011

SUSAN ILLSTON
United States District Judge

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