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New Sensations, Inc v. Does 1-1

UNITED STATES DISTRICT COURT Northern District of California


December 5, 2011

NEW SENSATIONS, INC.,
PLAINTIFF,
v.
DOES 1-1,474,
DEFENDANTS.

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

Docket No. 84

ORDER DENYING DOE DEFENDANT #389's MOTION TO QUASH

On June 7, 2011, Plaintiff New Sensations, Inc. ("Plaintiff") filed this lawsuit against 1,474 reproduced and distributed a work subject to 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.

Doe Defendants, alleging that Defendants illegally Compl. ¶¶ 6-15, Dkt. No. 1. On September 22, 2011, the Court granted Plaintiff's Application for Leave to Take Limited Expedited Discovery. Dkt. No. 13. The Court permitted Plaintiff to serve 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 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 December 1, 2011, Doe Defendant #389 filed a Motion to Quash. Dkt. No. 84. In his 25 motion, Doe #389 argues that joinder is improper and that the Court lacks jurisdiction over him. As 26 to the first argument, the Court addressed this issue at length in its September 22 Order and finds 27 that it is without merit at this stage of the litigation. Dkt. No. 13 at 6:22-11:10. As to the second 28 argument, the Court finds that any motion to quash based on jurisdictional grounds is premature.

See, e.g., New Sensations, Inc. v. Does 1-1,745, 2011 WL 2837610, at *1 (N.D. Cal. Jul. 18, 2011); 2 Call of the Wild Movie, LLC v. Smith, No. 10-0455, 2011 WL 1807416, at *9 (D.D.C. May 12, 3 2011); Voltage Pictures, LLC v. Does 1--5,000, No. 10-0873, WL 1807438, at *8 (D.D.C. May 12, 4 2011). Rule 12(b)(2) permits defendants to move to dismiss for lack of personal jurisdiction. 5 Although the Doe Defendant moves the Court to dismiss the action against him for lack of personal 6 jurisdiction, he is not yet a defendant. If and when Plaintiff names him as a defendant, he will be 7 able to raise this defense. Once Plaintiff amasses enough evidence and names the Does, it will then 8 have the burden to present a prima facie case supporting personal jurisdiction over defendants. See 9 Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003). 10 At that time, the Doe Defendant may present his affidavit asserting that he has never engaged in 11 business with Plaintiff and that his activities with the forum state do not meet the requisite minimum 12 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, the motion is not yet the Court finds it inappropriate to quash the subpoena, thereby dismissing the Doe Defendant from CE and may be brought again once Plaintiff ripe. The motion is DENIED WITHOUT PREJUDI names the Doe Defendant as a defendant or when the Doe Defendant has identified himself.

As there is no basis for giving any credence to an unsworn statement made by an anonymous person, this case, before Plaintiff has an opportunity to learn the Doe Defendant's identity and to determine 19 whether jurisdiction is proper.

IT IS SO ORDERED.

20111205

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