UNITED STATES DISTRICT COURT Northern District of California
November 14, 2011
PATRICK COLLINS, INC.,
DOES 1-2,590, DEFENDANTS.
The opinion of the court was delivered by: Maria-Elena James Chief United States Magistrate Judge
ORDER DENYING MOTION TO DISMISS DOE DEFENDANT #654
(IP ADDRESS 184.108.40.206)
Docket No. 20
Plaintiff's exclusive license, ("Real Female Orgasms 10"), using an internet peer-to-peer file sharing S 14 15 On June 7, 2011, Plaintiff Patrick Collins, Inc. filed this lawsuit against 2,590 Doe 16 Defendants, alleging that Defendants illegally reproduced and distributed a work subject to 18 network known as BitTorrent, thereby violating the Copyright Act, 17 U.S.C. § 101-1322. Compl. 19 ¶¶ 6-15, Dkt. No. 1. On September 22, 2011, the Court granted Plaintiff's Application for Leave to 20 Take Limited Expedited Discovery. Dkt. No. 12. The Court permitted Plaintiff to serve subpoenas 21 on Does 1-2,590's Internet Service Providers ("ISPs") by serving a Federal Rule of Civil Procedure 22 45 subpoena that seeks information sufficient to identify the Doe Defendants, including the name, 23 address, telephone number, and email address of Does 1-2,590. Id. at 11. Once the ISPs provided 24 Does 1-2,590 with a copy of the subpoena, the Court permitted Does 1-2,590 30 days from the date 25 of service to file any motions contesting the subpoena (including a motion to quash or modify the 26 subpoena). Id. 27 Now before the Court is a Motion to Dismiss, filed by Doe Defendant #654 (I.P. Address 28 220.127.116.11). Dkt. No. 20. In his motion, Doe requests that the subpoena be quashed as to him and the case against him dismissed because the Court lacks jurisdiction and venue is improper. 2 Pursuant to Rule 45(c)(3), if the subpoena would cause undue burden to Defendant, it must 3 be quashed. The subpoena, however, does not require any obligation from Defendant; rather, it was 4 directed at the putative defendants' ISPs. As such, there is no undue burden. 5 Further, any motion to dismiss based on jurisdictional grounds is premature. See, e.g., New 6 Sensations, Inc. v. Does 1-1,745, 2011 WL 2837610, at *1 (N.D. Cal. Jul. 18, 2011); Call of the 7 Wild Movie, LLC v. Smith, No. 10-0455, 2011 WL 1807416, at *9 (D.D.C. May 12, 2011); Voltage 8 Pictures, LLC v. Does 1--5,000, No. 10-0873, WL 1807438, at *8 (D.D.C. May 12, 2011). Rule 9 12(b)(2) permits defendants to move to dismiss for lack of personal jurisdiction. Although the Doe 10 Defendant moves the Court to dismiss the action against him for lack of personal jurisdiction, he is 11 not yet a defendant. If and when Plaintiff names him as a defendant, he will be able to raise this 12 defense. Once Plaintiff amasses enough evidence and names the Does, it will then have the burden
COURT 13 to present a prima facie case supporting personal jurisdiction over defendants. See Harris Rutsky & C
14 Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003). At that time, the 15 Doe Defendant may present his affidavit asserting that he has never engaged in business with
Plaintiff and that his activities with the forum state do not meet the requisite minimum contacts to establish personal jurisdiction. With evidence from both sides, jurisdiction will be decided on a full
18 record. At this time, however, without any named defendants, the motion is not yet ripe. The 19 motion is DENIED WITHOUT PREJUDICE and may be brought again once Plaintiff names the
20 Doe Defendant as a defendant or when the Doe Defendant has identified himself.
IT IS SO ORDERED. 22 23
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