Case3:10-cv-05863-WHA Document38 Filed07/18/11 Page1 of 4
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`NEW SENSATIONS, INC., a California
`corporation,
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`No. C 10-05863 WHA
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`Plaintiff,
`
` v.
`DOES 1–1745,
`Defendants.
` /
`
`ORDER DENYING MOTIONS
`TO QUASH SUBPOENA,
`DISMISS FOR LACK OF
`PERSONAL JURISDICTION,
`REMOVE, AND SEVER FOR
`IMPERMISSIVE JOINDER,
`AND VACATING HEARING
`
`INTRODUCTION
`In this copyright-infringement action, pro se putative defendant Ronald Burr, Jr., moves to
`quash and/or vacate a subpoena, to dismiss for lack of personal jurisdiction, to “remove” the
`action to a different venue, and to sever for impermissive joinder. For the following reasons, the
`motions are DENIED.
`
`STATEMENT
`Plaintiff New Sensations, Inc. is the exclusive owner of the copyrighted motion picture
`“The Office: A XXX Parody.” Doe defendants allegedly have acted in concert to reproduce and
`distribute the motion picture without plaintiff’s permission through BitTorrent, a peer-to-peer
`network. In doing so, plaintiff avers that Does have violated the Copyright Act of 1976,
`17 U.S.C. 101 et seq. Plaintiff seeks to enjoin defendants from reproducing and distributing the
`motion picture, to destroy all illicit copies, and to recover monetary damages.
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`For the Northern District of California
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`United States District Court
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`Case3:10-cv-05863-WHA Document38 Filed07/18/11 Page2 of 4
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`Plaintiff contracted Copyright Enforcement Group, LLC to inspect file-sharing networks
`for computers that were distributing substantial parts of plaintiff’s copyrighted work. When CEG
`found such illicit distributions, it recorded the IP addresses used and the dates and times of the
`recordings (Opp. 5). Plaintiff sued the owners of the IP addresses as Does. In order to identify
`their names, plaintiff subpoenaed internet service providers, including Cavalier Telephone, to
`provide the identities behind those IP addresses. In May 2011, Cavalier Telephone complied with
`the subpoena and provided plaintiff with the identifying information corresponding to the found
`IP addresses. One of those IP addresses belonged to Ronald Burr, Jr. Plaintiff notified Burr of
`the pending case, but has yet to name Burr as a defendant (Siegel Decl. ¶¶ 2–3). Burr has since
`filed a motion for a protective order, which was denied on June 22 (Dkt. No. 19), as well as the
`instant motions to quash the subpoena, dismiss for lack of personal jurisdiction, “remove” the
`action, and sever for impermissive joinder.
`
`ANALYSIS
`MOTION TO QUASH THE SUBPOENA.
`1.
`Pursuant to FRCP 45(c)(3), if the subpoena would cause undue burden to Burr, it must be
`quashed. The subpoena, however, did not require any obligation from Burr. Rather, it was
`directed at the putative defendants’ ISPs. More importantly, Cavalier Telephone already
`complied with the subpoena in May 2011. As such, the motion is DENIED AS MOOT.
`2.
`MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION.
`This motion is premature. Although our circuit has yet to address this particular issue,
`Judge Howell of the D.C. Circuit has repeatedly held that in infringement actions, dismissal for
`lack of personal jurisdiction of unnamed defendants is premature. See, e.g., Call of the Wild
`Movie, LLC v. Smith, No. 10-0455, 2011 WL 1807416, at *9 (D.D.C. May 12, 2011); Voltage
`Pictures, LLC v. Does 1–5,000, No. 10-0873, WL 1807438, at *8 (D.D.C. May 12, 2011). His
`analysis makes sense.
`Rule 12(b)(2) permits defendants to move to dismiss for lack of personal jurisdiction.
`Burr moves the court to dismiss the action against him for lack of personal jurisdiction. Yet, he is
`not yet a defendant. If and when plaintiff names him as a defendant, he will be able to raise this
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`United States District Court
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`Case3:10-cv-05863-WHA Document38 Filed07/18/11 Page3 of 4
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`defense. Currently, plaintiff has limited information about putative defendants. Once plaintiff
`amasses enough evidence and names the Does, it will then have the burden to present a prima
`facie case supporting personal jurisdiction over defendants. See Harris Rutsky & Co. Ins. Servs.,
`Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003). At that time, Burr 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 record. At this time, without
`any named defendants, the motion is not yet ripe. The motion is DENIED WITHOUT PREJUDICE
`and may be brought again once plaintiff names Burr as a defendant or when Burr has identified
`himself as a specific Doe.
`MOTION TO “REMOVE.”
`3.
`If personal jurisdiction were found and the claim were not dismissed, Burr alternatively
`asks to “remove” the action to a “proper location.” Yet, he does not specify what a “proper
`location” would be or why the action should be “removed.” As personal jurisdiction has yet to be
`decided and as Burr provides no legal basis for removal, the motion to remove is DENIED
`WITHOUT PREJUDICE.
`4.
`MOTION TO SEVER FOR IMPERMISSIVE JOINDER.
`Burr moves to sever all defendants, or at least to sever the claims against him from the
`claims against the rest of the Does. The issue of joinder of unnamed Does has already been
`considered. Magistrate Judge James ordered that “joinder of all defendants at this stage of the
`litigation is proper. This decision is without prejudice to any motion for severance by a current
`Doe defendant who is later included in this action by his or her name” (Dkt. No. 8). As Burr is
`not yet named and might not be named as a defendant, this motion is premature and is DENIED
`WITHOUT PREJUDICE.
`
`CONCLUSION
`For the above reasons, Burr’s motions are denied. The motion to quash the subpoena is
`DENIED AS MOOT. The motions to dismiss for lack of personal jurisdiction, to remove, and to
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`For the Northern District of California
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`United States District Court
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`Case3:10-cv-05863-WHA Document38 Filed07/18/11 Page4 of 4
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`sever are DENIED WITHOUT PREJUDICE and may be brought if and when Burr becomes a named
`defendant. The hearing scheduled for August 4, 2011, is VACATED.
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`IT IS SO ORDERED.
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`Dated: July 18, 2011.
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`
`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
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