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New Sensations, Inc v. Does 1-1

UNITED STATES DISTRICT COURT Northern District of California

November 30, 2011


The opinion of the court was delivered by: Maria-Elena James Chief United States Magistrate Judge


On June 7, 2011, Plaintiff New Sensations, Inc. ("Plaintiff") filed this lawsuit against 1,474 Doe Defendants, alleging that Defendants illegally reproduced and distributed a work subject to Compl. ¶¶ 6-15, Dkt. No. 1. On September 22, 2011, the Court granted Plaintiff's Application for Plaintiff's exclusive license, ("Big Bang Theory: A XXX Parody"), using an internet peer-to-peer file 15 sharing network known as BitTorrent, thereby violating the Copyright Act, 17 U.S.C. § 101-1322.

Leave to Take Limited Expedited Discovery. Dkt. No. 13. The Court permitted Plaintiff to serve 18 subpoenas on Does 1-1,474's Internet Service Providers ("ISPs") by serving a Federal Rule of Civil 19 Procedure 45 subpoena that seeks information sufficient to identify the Doe Defendants, including 20 the name, address, telephone number, and email address of Does 1-1,474. Id. at 11. Once the ISPs 21 provided Does 1-1,474 with a copy of the subpoena, the Court permitted Does 1-1,474 30 days from 22 the date of service to file any motions contesting the subpoena (including a motion to quash or 23 modify the subpoena). Id. 24 On November 21, 2011, Doe Defendant #305 (I.P. Address filed a Motion to 25 Proceed Anonymously, Dkt. No. 50, and subsequently filed a Motion to Quash on November 22, 26 2011. In his motions, Doe #305 argues that Plaintiff has failed to establish a prima facie case of 27 copyright infringement against him, that joinder is improper, and that the Court lacks jurisdiction 28 over him. As to the first two arguments, the Court has addressed them at length in its September 22

1 Order and finds they are without merit at this stage of the litigation. Dkt. No. 13 at 5:10-6:4, 6:22-2 11:10. As to the third argument, the Court finds that any motion to quash based on jurisdictional 3 grounds is premature. See, e.g., New Sensations, Inc. v. Does 1-1,745, 2011 WL 2837610, at *1 4 (N.D. Cal. Jul. 18, 2011); Call of the Wild Movie, LLC v. Smith, No. 10-0455, 2011 WL 1807416, at 5 *9 (D.D.C. May 12, 2011); Voltage Pictures, LLC v. Does 1--5,000, No. 10-0873, WL 1807438, at 6 *8 (D.D.C. May 12, 2011). Rule 12(b)(2) permits defendants to move to dismiss for lack of 7 personal jurisdiction. Although the Doe Defendant moves the Court to dismiss the action against 8 him for lack of personal jurisdiction, he is not yet a defendant. If and when Plaintiff names him as a 9 defendant, he will be able to raise this defense. Once Plaintiff amasses enough evidence and names 10 the Does, it will then have the burden to present a prima facie case supporting personal jurisdiction 11 over defendants. See Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 12 1129 (9th Cir. 2003). At that time, the Doe Defendant may present his affidavit asserting that he has 13 never engaged in business with Plaintiff and that his activities with the forum state do not meet the 14 requisite minimum contacts to establish personal jurisdiction. With evidence from both sides, jurisdiction will be decided on a full record. At this time, however, without any named defendants, again once Plaintiff names the Doe Defendant as a defendant or when the Doe Defendant has 15 16 the motion is not yet ripe. The motion is DENIED WITHOUT PREJUDICE and may be brought 18 identified himself. As there is no basis for giving any credence to an unsworn statement made by an 19 anonymous person, the Court finds it inappropriate to quash the subpoena, thereby dismissing Doe 20 Defendant #305 from this case, before Plaintiff has an opportunity to learn Doe #305's identity and 21 to determine whether jurisdiction is proper. 22 Accordingly, Doe Defendant #305's motions to proceed anonymously and quash are 23 DENIED.



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