Openmind Solutions, Inc. v. Does 1-2925

Filing 23

MOTION to Dismiss for Lack of Personal Jurisdiction and Incorporated Memorandum of Law by Does 1-2925. Responses due by 5/2/2011. (jdh)

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) ) ) ) ) ) ) ) OPENMIND SOLUTIONS, INC. Plaintiff, v. Civil Action No. (or Docket No.) 3:II-cv-00092 - G/;7;/SC W ) Potential John Doe ) ) ) ) ) ,pro se and multiple John Does ____________________~D~e~fu~n~d~an~ffi~,_) MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND INCORPORATED MEMORANDUM OF LAW THE UNDERSIGNED, pro se, moves the court, pursuant to Fed. R. Civ. P. 12(b)(2), and limits his appearance for the purposes of contesting jurisdiction, for an order dismissing the above case against the undersigned, and states that: Lack ofPersonal Jurisdiction I. The Plaintiff bears the burden of demonstrating personal jurisdiction. RAR. Inc .. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997). 2. Federal cases with personal jurisdiction analysis under internet activity have repeatedly dismissed complaints for want of personal jurisdiction unless a contractual relationship exists with a party located within the state to establish sufficient minimum contacts, and no such relationship has been plead by the I Plaintiff. See GTE New Media Servs. v. BellSouth Com., 199 F.3d 1343, 134849 (D.C. Cir. 2000) (citing Bensusan Restaurant Com v. King, 126 F. 3d 25, 29 (2d Cir. 1997); Mink v. AAAA Development. LLC, 190 F.3d 333, 336-37 (5 th Cir. 1999); Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419-420 (9 th Cir. 1997). 3. Plaintiff is fully aware of this court's lack of personal jurisdiction of the undersigned, and is simply using this court to obtain infonnation to subject the undersigned to this jurisdiction, as the Plaintiff is aware that IP addresses may be located geographically to detennine the proper jurisdiction without such John Doe discovery. See~, 16 Alb. L.J. Sci. & Tech. 343, 356 (discussing IP geo- location technologies). See also Universal City Studios Productions LLLP v. Franklin, 2006 U.S. Dist. Ct. Motions 748729, 9, n4 (N.D. Ind. Sept. 26, 2006) (plaintiff's memorandum of law seeking default judgment for copyright infringement over the internet, discussing geolocation of an ISP and claiming that statutory damages were reasonably related to the hiring of MediaSentry, whereupon investigation of the location of the ISP, they would file a John Doe suit in the jurisdiction where the ISP is located in order to serve discovery). 4. Upon compliance from the ISP with the subpoena of the Plaintiff in this case, the John Doe identity will be established and the case will immediately be amended, and the undersigned will be added as a party to the case, and immediately the court will lack personal jurisdiction. Requiring individuals from across the country to litigate in this district creates exactly the sort of hardship and 2 38,2008 WL 544992 (E.D.N.C. Feb 27, 2008) (stating that the same type of violation does not allow for joinder of defendants); BMG Music v. Does 1-4, 2006 U.S. Dis!. Lexis 53237, at 5-6 (N.D. Cal. July 31, 2006) (court severed defendants where only connection was they used the same ISP); Interscope Records v. Does 1-25,2004 U.S. Dist LEXIS 27782 (M.D. Fla. Apr. 1,2004) (magistrate recommended severance of multiple defendants where they used the same ISP and P2P network for copyright infringement); Twentieth Century Fox Film Corp., et al.. v. Does 1-12, No. C-04-04862 (N.D. Cal Nov. 16,2004) (copyright suit against twelve John Doe defendants, court permitted discovery of first Doe defendant but stayed case as to remaining Does until plaintiff could demonstrate proper joinder). 9. Based on the available defenses of all defendants, and separate set offacts and law surrounding, each potential defendant, the Plaintiff has impermissibly joined mUltiple defendants in violation of Rule 20, Fed. R. Civ. P. WHEREFORE, the undersigned Defendant prays that this honorable court dismiss the Plaintiffs complaint as it pertains to the undersigned for lack of personal jurisdiction, or in the alternative, to remove the case from this court to a proper location, and the undersigned moves for a severance of all Defendants, or in the alternative, the undersigned moves for a severance of the case against him/her personally from the rest of the Defendants. The undersigned proposes an order similar in form to: "The case against "John Doe #4000 (identity protected)" is hereby dismissed." 4 Dated this 23 day of March , 2011 Resp~tfullY sUbitted, xj}~ Name: Poteirl'iai John Doe Address Ln I : Address Withheld Address Ln2: City, State, Zip: Phone Number: 5 Orlando FL ,prose

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