UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
August 12, 2011
MILLENNIUM TGS, INC.
DOES 1-21, DEFENDANTS.
The opinion of the court was delivered by: Paul S. Grewal United States Magistrate Judge
ORDER DENYING AS MOOT MOTION TO QUASH, DENYING AS MOOT MOTION TO DISMISS, AND SEVERING AND DISMISSING DEFENDANTS DOES 4-21
(Re: Docket No. 11)
Pending before the court is Defendant Doe 1's ("Doe 1") Motion to Quash Subpoena Compelling Disclosure, Dismiss for Improper Venue, and Dismiss for Lack of Personal Jurisdiction. On July 12, 2011, the court heard oral argument on Doe 1's motion. On August 10, 2011, however, Plaintiff Millenium TGA Inc. ("Millenium") filed a notice of voluntary dismissal 20 21 with prejudice as to Does 1-2. Accordingly, the court DENIES Doe 1's motion to quash and motion to dismiss as MOOT.*fn1
In light of its recent decisions in several nearly identical cases, the court nevertheless finds it appropriate to address the propriety of expedited discovery as to the remaining Defendants, Does 3-21. Originally filed against twenty-one anonymous Doe Defendants on April 8, 2011, the Millennium complaint alleged that, through the use of the BitTorrent protocol, Defendants had infringed on one of its copyrighted works and perpetrated civil conspiracy. Millenium filed an ex 4 parte application seeking leave to conduct early discovery, which was granted.*fn2 Millenium's 5 dismissal with prejudice as to Does 1-2 does not alter its claims against Does 3-21. In fact, Millenium expressly states that it "maintains claims against the anonymous Doe Defendants 7 remaining., and reserves the right to name such individuals and/or serve them when provided 8 with their identifying information."*fn3
Recently, in Boy Racer v. John Does 2-52,*fn4 the court granted leave to take expedited discovery, but only as to Doe 2. As to Does 3 through 52, the court recommended severance of Does 3 through 52. The court further recommended that the claims against Does 3 through 52 be 13 dismissed without prejudice and, if refiled within 20 days, deemed a continuation of the original 14 action for purposes of the statute of limitations.
Whereas in Boy Racer the court recommended the severance of claims and dismissal without 17 18 prejudice, in light of Millenium's consent to the undersigned jurisdiction, the undersigned has the 19 authority simply to order the dismissal.*fn5 Although the court previously granted leave to take 20 discovery without addressing the issue of misjoinder, in accordance with the reasoning in Boy 21 The court sees no reason to treat Millennium's case any differently, with one exception. Conference (Docket No. 8).
v. De Frantz, Case No. 00-1067, 2000 WL 973684, at *2 n.2 (N.D. Cal. June 29, 2000) (citing 28
Racer, the court now finds that joinder is improper. Accordingly, the court will continue to allow Millenium to pursue expedited discovery only as to Doe 3. The court will order the remaining Defendants, Does 4-21, to be severed from this action, and the claims against them dismissed 4 without prejudice. Accordingly, 5
IT IS HEREBY ORDERED that Millenium may pursue expedited discovery only as to Doe 3's ISP listed in Exhibit A to the Complaint, as set forth in this court's April 12, 2011 order.
IT IS FURTHER ORDERED that Does 4 through 21 are severed from this action. The claims against Does 4 through 21 are dismissed without prejudice and, if refiled within 20 days, 9 10 deemed a continuation of the original action for purposes of the statute of limitations.