The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge
ORDER DENYING DEFENDANT DOE 100'S MOTION TO QUASH [ECF No. 11]
On April 26, 2011, Plaintiff filed a Complaint against Swarm of November 15 and 16, 2010 Sharing Hash File AE340D0560129AFEE8D (the "AE3 Hash") and Does 1-132 for copyright infringement, civil conspiracy and negligence. (ECF No. 1.) Defendant Doe 100 has been identified by his IP address: 18.104.22.168. Plaintiff alleges that on November 16, 2010 at 7:27:07 a.m., Doe 100 used this IP address to illegally republish and distribute Plaintiff's copyrighted motion picture to an unknown number of other individuals over the internet. (Id. at 29.)
On May 4, 2011, Plaintiff filed a Motion for Discovery, requesting leave to propound limited discovery on the Doe Defendants and their Internet Service Providers ("ISP's") to determine Defendants' true identities. (ECF No. 3.) On May 13, 2011, the Court granted Plaintiff's motion in part and denied it in part. (ECF No. 5.) Specifically, the Court granted Plaintiff leave to serve discovery on fourteen ISP's to produce any and all documents and/or information sufficient to identify the user(s) of their respective IP addresses as listed in Exhibit 1 to Plaintiff's motion during the corresponding dates and times. However, the Court denied Plaintiff's request to propound discovery in the form of interrogatories and depositions on any individual identified by these ISP's as premature. (Id.)
On May 16, 2011, Plaintiff served a subpoena for the production of documents on Comcast Cable in Morrestown, New Jersey. (ECF No. 11, Exhibit A.) The subpoena was issued by the United States District Court for the District of New Jersey and served via fax. (Id. at 3.) Plaintiff's subpoena requests the production of:
Any and all information, customer records, and/or documents sufficient to personally identify the user(s) of the attached IP addresses on the corresponding dates and times, including name, address, phone number, and email address. (Id., Exhibit A.) Comcast Cable notified Defendant Doe 100 of the subpoena. (Id. at 3.)
On June 29, 2011, Defendant Doe 100 made a special appearance to file the instant Motion to Quash. (ECF No. 11.) Defendant Doe 100 raises three arguments in support of his motion: (1) the Court lacks subject matter and personal jurisdiction; (2) the subpoena is invalid because it was "typed on a United States District Court for the District of New Jersey [form] signed by counsel for the plaintiff, and then served via facsimile;" and (3) 47 U.S.C. § 551(c)(1) prevents disclosure of Defendant Doe 100's personally identifying information without his consent. (Id. at 3-4.)
Plaintiff filed an Opposition to Doe 100's motion on July 19, 2011. (ECF No. 14.) Plaintiff contends: (1) the Court has subject matter and personal jurisdiction; (2) the subpoena is valid; and (3) 47 U.S.C. § 551 does not apply in light of the Court's order granting Plaintiff's Motion for Discovery. (Id. at 3-7.)
Federal Rule of Civil Procedure 45(c)(3)(A) permits "the issuing court" to quash or modify a subpoena. "Normally, disputes over discovery from a non-party are decided by the court which issued the subpoena, unless the non-party consents that the matter be resolved by a court in another district." In re Welding Rod Products Liability Litigation, 406 F. Supp. 2d 1064, 1065 (N.D. Cal. 2005); see also In re Sealed Case, 141 F.3d 337, 341 ("only the issuing court has the power to act on its subpoenas"). The District of New Jersey issued the subpoena at issue in this case. Absent the consent of Comcast Cable, this Court declines to grant Defendant Doe 100 any relief.
Accordingly, IT IS HEREBY ORDERED that Defendant Doe 100's Motion to Quash is hereby DENIED without prejudice to Defendant Doe 100 re-filing his motion in the District of New Jersey.
cc: The Honorable Anthony J. Battaglia
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