Case :-cv-0-ben-mdd Document Filed 0// Page of Dolores Contreras, SBN 0 BOYD CONTRERAS, LLP 0 West Broadway, Suite 0 San Diego, CA 0 T. ( - F. ( - Email: dc@boydcontreras.com Attorney for Jane Doe. EX PARTE 0 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA PATRICK COLLINS, Plaintiff, vs. DOES -, Defendants. Case No.: -CV-0-BEN-MDD MOTION TO QUASH SUBPOENA AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT S MOTION TO QUASH Date: Time: Courtroom: B Hon. Mitchell D. Dembin I. INTRODUCTION On or around January 0,, Defendant Jane Doe, received a subpoena from her alleged internet service provider, stating that if Ms. Doe, as alleged user of IP address..00., did not respond within (twenty-one days of the letter, Ms. Doe s alleged internet service provider will release her personal information to plaintiff. Attached to the letter from Ms. Doe s alleged internet service provider was an Order Granting Motion for Early Discovery in case no. cv-ben (MDD. Motion to Quash Subpoena and Memorandum of Points and Authorities - -CV-0-BEN-MDD
Case :-cv-0-ben-mdd Document Filed 0// Page of 0 It has come to Ms. Doe s attention that this is not the first time a Mr. Patrick Collins has attempted to bring a lawsuit of this nature against people who may be innocent. Ms. Doe has learned that after receipt of subpoena, previous defendants of Patrick Collins received a demand letter. Research shows, these letters demand approximately $,00 in order to avoid a trial. In addition, Defendant s receive an onslaught of phone calls requesting settlement before Defendant s are taken to trial. Because court documents are available to the public, I respectfully request that I be allowed to file this motion without revealing my information which may make me identifiable to Plaintiff. II. ARGUMENT To cut court costs, while suing as many individuals as possible, Plaintiff is using improper joinders in his lawsuits which allege copyright infringement. Similar lawsuits have been filed in Illinois, including a BitTorrent case nearly identical to this one, CP Productions, Inc. v. Does -00 case no. :0cv0. The Court in this case dismissed all but one Doe stating: [I]f the 00 unnamed defendants have in fact infringed any copyrights (something that this court will assume to be the case, given the Complaint s allegations that so state, each of those infringements was separate and apart from the others. No predicate has been shown for thus combining 00 separate actions on the cheap if CP had sued the 00 claimed infringers separately for their discrete infringements, the filing fees alone would have aggregated $0,000 rather than $0. See CP Productions, Inc. v. Does -00 case no. :0cv0. The same Court, no doubt tiring of these types of ill fated and ill considered lawsuits stated, This Court has received still another motion by a Doe defendant to quash a subpoena in this ill-considered lawsuit filed by CP Productions, Inc. ( CP against no fewer than 00 unidentified Doe defendants this one seeking the nullification of a February, subpoena issued to Comcast Communications, LLC. This Court s February, memorandum opinion and order has already sounded the death knell for this action, which has abused the litigation system in more than one way. But because the aggrieved Doe defendants continue to come out of the woodwork with motions to quash, indicating an unawareness of this Court s dismissal of this action, CP s counsel is ordered to appear in court on March, at Motion to Quash Subpoena and Memorandum of Points and Authorities - -CV-0-BEN-MDD
Case :-cv-0-ben-mdd Document Filed 0// Page of 0 :00 a.m. Counsel will be expected to discuss what steps should be taken to apprise all of the targeted Doe defendants that they will not be subject to any further trouble or expense as a result of this ill-fated (as well as ill-considered lawsuit. In VPR Internationale v. Does -0 case :0cv0, Judge Harold A. Baker writes in denying the motion for expedited discovery, Plainly stated, the court is concerned that the expedited ex parte discovery is a fishing expedition by means of a perversion of the purpose of and intent of Fed. R. Civ. P.. In the Northern District of California, nearly identical BitTorrent cases have been severed for improper joinder. For example, the Court in Pacific Century International LTD v. Does - 0 case no. :cv0, severed Does -0 stating, the sought after discovery has the potential to draw numerous innocent internet users into the litigation, placing a burden on them that outweighs Plaintiff s need for discovery... therefore, the Court denies Plaintiff s motion. The court goes on to recognize that often, the subscriber and the Doe defendant, will likely not be the same individual. The Court then adopts the same argument the Court in London Sire Records argued by stating,...granting Plaintiff the form of relief that it seeks in this motion thus would impermissibly allow Plaintiff to subpoena ISPs to obtain the detailed personal information of unknown numbers of innocent individuals that Plaintiff could never make party to this suit and potentially subject them to onerous, invasive discovery and/or unfair settlement tactics... See London-Sire Records, Inc., F. Supp. d at & nn.0-, ; Columbia Ins. Co., F.R.D. at. The court then argued, plaintiff could not guarantee the person they were subpoenaing was the same person who owned the IP address at the time of the alleged download. As such, the Court stated, [p]resumably, every desktop, laptop, smartphone, and tablet in the subscriber s residence, and perhaps any residence of any neighbor, houseguest or other sharing his internet access, would be fair game [for discovery purposes]. Beyond such an inspection, [the plaintiff] might require still more discovery, including interrogatories, document requests and even depositions... Nothing currently prevents Plaintiff from sending a settlement demand to the individual that the ISP identifies as the IP subscriber. That individual -- whether guilty of Motion to Quash Subpoena and Memorandum of Points and Authorities - -CV-0-BEN-MDD
Case :-cv-0-ben-mdd Document Filed 0// Page of 0 copyright infringement or not -- would then have to decide whether to pay money to retain legal assistance, or pay the money demanded. This creates great potential for a coercive and unjust settlement. Id. Finally, in denying Plaintiff s motion, the Court reasoned that joining Defendant s was improper because there would be manageability difficulties, procedural inefficiencies, and likelihood that Defendants will assert a myriad of factual and legal defenses. The Court further reasoned, Each Defendant s varying defenses would require the court to cope with separate discovery disputes and dispositive motions, and to hold separate trials, each based on different evidence... Joining Defendants to resolve what at least superficially appears to be relatively straightforward case would in fact transform it into a cumbersome procedural albatross... and place an undue burden on Defendants as well... because all Defendants would have a right to be at other Defendant s hearings and moreover, would be required to file and serve every other Defendant with a copy of their pleadings and other submissions throughout the pendency of the actions at a substantial cost. Id. Other Court s in similar actions have also severed Does do to the same arguments listed above. See: IO Group, Inc. v. Does - case :0cv0 (severed does -; Diabolic Video Productions, Inc v. Does - case :0cv0 (severed Does -; New Sensations, Inc v. Does - case :0cv0 (severed Does -. In yet another nearly identical BitTorrent case, filed in the Northern District of California, Millennium TGA, Inc v. Does - case :cv0, Judge Samuel Conti found the same joinder problems, and wrote in his order denying request for leave to take early discovery, This Court does not issue fishing licenses; And these nearly identical BitTorrent cases in the Northern District of California by plaintiff Boy Racer, have been severed for improper joinder. See: Boy Racer, Inc v. Does - case :cv0 (severed Does -; Boy Racer, Inc v. Does - case :cv0 (severed Does -. /// /// /// Motion to Quash Subpoena and Memorandum of Points and Authorities - -CV-0-BEN-MDD
Case :-cv-0-ben-mdd Document Filed 0// Page of 0 Plaintiff Has Improperly Joined Individual Defendants Based on Disparate Alleged Acts Rule requires that, for parties to be joined in the same lawsuit, the claims against them must arise from a single transaction or a series of closely related transactions. Federal Rule of Civil Procedure states, Persons... may be joined in one action as defendants if: (A any right to relief is asserted against them jointly, severally or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B any question of law or fact common to all defendants will arise in the action. Thus, multiple defendants may be joined in a single lawsuit only when three conditions are met: ( the right to relief must be asserted against them jointly, severally or in the alternative ; ( the claim must aris[e] out of the same transaction, occurrence, or series of transactions or occurrences ; and ( there must be a common question of fact or law common to all the defendants. Id. The Plaintiff s joinder of defendants in this single action is improper and runs the risk of creating unfairness and denying individual justice to those sued. As one court noted, Plainly stated, the court is concerned that the expedited ex parte discovery is a fishing expedition by means of a perversion of the purpose of and intent of Fed. R. Civ. P.. The Court argued, Comcast subscriber John Doe could be an innocent parent whose internet access was abused by her minor child, while John Doe might share a computer with a roommate who infringed Plaintiffs works. John Does through could be thieves, just as Plaintiffs believe, inexcusably pilfering Plaintiffs property and depriving them, and their artists, of the royalties they are rightly owed.... Wholesale litigation of these claims is inappropriate, at least with respect to a vast majority (if not all of Defendants. BMG Music v. Does -, No. Civ.A. 0-0, 0 WL, at * (E.D. Pa. Apr., 0. Joinder based on separate but similar behavior by individuals allegedly using the Internet to commit copyright infringement has been rejected by courts across the country. In LaFace Records, LLC v. Does -, No. :0-CV--BR, 0 WL (E.D.N.C. Feb., 0, the court ordered severance of lawsuit against thirty-eight defendants where each defendant used the same ISP as well as some of the same peer-to-peer ( PP networks to commit the exact Motion to Quash Subpoena and Memorandum of Points and Authorities - -CV-0-BEN-MDD
Case :-cv-0-ben-mdd Document Filed 0// Page of 0 same violation of the law in exactly the same way. The court explained: [M]erely committing the same type of violation in the same way does not link defendants together for purposes of joinder. LaFace Records, 0 WL, at *. In BMG Music v. Does -, No. :0-cv- 0-MHP, 0 U.S. Dist. LEXIS, at *- (N.D. Cal. July, 0, the court sua sponte severed multiple defendants in action where the only connection between them was allegation they used same ISP to conduct copyright infringement. See also Interscope Records v. Does -, No. :0-cv--Orl-DAB, 0 U.S. Dist. LEXIS (M.D. Fla. Apr., 0 (magistrate recommended sua sponte severance of multiple defendants in action where only connection between them was allegation they used same ISP and PP network to conduct copyright infringement; BMG Music v. Does -, No. Civ.A. 0-0, 0 WL, at * (E.D. Pa. Apr., 0 (severing lawsuit involving defendants; General Order, In re Cases Filed by Recording Companies, filed in Fonovisa, Inc. et al. v. Does - (No. A-0-CA- 0 LY, Atlantic Recording Corporation, et al. v. Does - (No. A-0-CA- SS, Elektra Entertainment Group, Inc. et al. v. Does - (No. A-0-CA-0 LY; and UMG Recordings, Inc., et al. v. Does - (No. A-0-CA-0 LY (W.D. Tex. Nov., 0, RJN Ex. A, (dismissing without prejudice all but first defendant in each of four lawsuits against a total of defendants accused of unauthorized music file-sharing; Order Granting in Part and Denying in Part Plaintiffs Miscellaneous Administrative Request for Leave to Take Discovery Prior to Rule Conference, Twentieth Century Fox Film Corp., et al., v. Does -, No. C-0-0 (N.D. Cal Nov., 0 (in copyright infringement action against twelve defendants, permitting discovery as to first Doe defendant but staying case as to remaining Does until plaintiff could demonstrate proper joinder. Plaintiff may argue its allegations are based upon use of the Internet to infringe a single work. While that may accurately describe the facts alleged in this case, it does not change the legal analysis. Whether the alleged infringement concerns a single copyrighted work or many, it was committed by unrelated defendants, at different times and locations, sometimes using different services, and perhaps subject to different defenses. That attenuated relationship is not sufficient for joinder. See BMG Music v. Does -, 0 WL, at *. Motion to Quash Subpoena and Memorandum of Points and Authorities - -CV-0-BEN-MDD
Case :-cv-0-ben-mdd Document Filed 0// Page of 0 Further, the individual Defendants have no knowledge of each other, nor do they control how the protocol works, and Plaintiff has made no allegation that any copy of the work they downloaded came jointly from any of the Doe defendants. Joining unrelated defendants in one lawsuit may make litigation less expensive for Plaintiff by enabling it to avoid the separate filing fees required for individual cases, but that does not mean these well-established joinder principles should not be followed here. From the above analysis it is clear that Plaintiff in this case is nothing more than the proverbial schoolyard bully who is trying to shakedown innocent defendants for their milk money and allowing Plaintiff s to engage in this bullying tactic does not promote justice for anyone who may or may not be involved. II. Conclusion For the aforementioned reasons, Defendant Jane Doe respectfully requests that the Court quash the subpoena due to improper joinder of Doe Defendants -. Joinder of Doe defendants in this lawsuit is improper and raises serious questions of individual fairness and justice. Therefore, the Court should sever the defendants and drop Does -, from the case. Dated: February, Respectfully submitted, BOYD CONTRERAS LLP /s/dolores Contreras Dolores Contreras Attorney for Jane Doe. Email: dc@boydcontreras.com Motion to Quash Subpoena and Memorandum of Points and Authorities - -CV-0-BEN-MDD
Case :-cv-0-ben-mdd Document Filed 0// Page of 0 CERTIFICATE OF SERVICE This is to certify that a true, correct and complete copy of the foregoing Motion to Quash Subpoena was served via First Class Mail, postage pre-paid and Electronic Mail, address to Plaintiff s counsel of record as follows: Adam M. Silverstein Cavalluzzi & Cavalluzzi 0 Sunset Boulevard Suite 0 Los Angeles, CA 00 (0-0 Fax: (0-0 Email: adam@cavalluzzi.com Dated: February, /s/dolores Contreras Dolores Contreras Motion to Quash Subpoena and Memorandum of Points and Authorities - -CV-0-BEN-MDD