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)

)
)
)
)
)
)
)
)

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