310-Cv-03647-MEJ Docket 18 Opposition to Motion to Dismiss

8/7/2019 310-Cv-03647-MEJ Docket 18 Opposition to Motion to Dismiss

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)) CASE NO.: C-IO-3647 (MEJ))) PLAINTIFF 10 GROUP, INC.'S) OPPOSITION TO ANONOMOUSLY) FILED MOTION TO DISMISS; AND) MOTION TO STRIKE))) No Hearing Date)))

Case3:10-cv-03647-MEJ Document18 Filed03/25/11 Paqelof s

1 D. GILL SPERLE IN (172887)2 THE LAW OFFICE OF D. GILL SPERLEIN

584 Castro Street, Suite 879San Francisco, California 94114Telephone: (415) 404-6615

4 Facsimile: (415) [email protected] Attorney for Plaintiff7 10GROUP, INC.8

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION910111213 10GROUP, INC. d/b/a TITAN14 MEDIA, a California corporation,15 Plaintiff,16 vs.17 DOES 1-244 individuals,1819202122

Defendants.

PROCEDURAL HISTROYPlaintiff filed this action for copyright infringement against 244 Doe Defendants.

23 The infringing activity occurred on line and the only information Plaintiff has as to who24 engaged in the infringing activity is the IP address from which the infringer accessed the2526 Internet. Thus, Plaintiff moved for leave to take early discovery, which the Court27 permitted. (Order Granting Plaintiffs Request for Leave to Take Early Discovery,28

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Docket No. 10.) Plaintiff served a subpoena on the Internet access provider AT&TInternet, requesting identifying information for the subscribers to whom AT&T hadassigned specific IP addresses at various dates and times.

AT&T Internet claimed it was unable to provide the subpoenaed information untilMarch 16, 2011. Upon Plaintiffs motion, the Court extended the time to serveDefendants until July 14, 2011, in order to allow Plaintiff sufficient time to processinformation once provided by AT&T, to complete further investigation, to amend theComplaint with the actual names of Defendants, and to serve the Summons andComplaint. (Order Extending Plaintiff 10 Group's Time to Serve Doe Defendants andResetting Case Management Conference, Docket No. 15).

On March 14, 2011 an anonymous individual claiming to be a possible DoeDefendant filed a Motion to Dismiss. (Docket No. 16) The individual did not identifyhim or herself, did not claim to be a party to the suit, and did not even claim to be one ofthe non-party Internet subscribers whose information Plaintiff seeks from AT&T.

Based on the anonymous non-party's filing, AT&T suspended production of thesubpoenaed information, further delaying Plaintiffs ability to proceed in this matter.

On March 22, 2011 the Court issued an Order Directing Defendant' to file aConsent/Declination Form.

Plaintiff hereby opposes the Motion to Dismiss and moves to Strike the Documentin its entirety, as it was not filed by a Party in this matter and was not properly signed as

1As noted herein, this is an error as Plaintiff has not yet identified any Defendants.

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25 Lujan, 504 U.S. at 560-61. Thus, Filer lacks Article III standing for this Court to26

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The non-party Filer provided no facts as to why he or she believes he or she is a "PossibleJohn Doe". If the individual is one of the subscribers whose records Plaintiff seeks andhe or she does not wish to have those records released, his or her remedy is to file a

4 motion to quash the subpoena. He or she has not.Like any entrant to litigation, the Filer must establish that he or she has standing

under Article III of the U.S. Constitution to participate in this proceeding. As noted, theFiler has not submitted any evidence that he or she is a party to the litigation. Indeed heor she cannot, because no such evidence exists. Filing a document signed "Possible JohnDoe" is not sufficient to confer standing to participate in this action. See generallyStoianofJ v. Montana, 695 F.2d 1214, 1223 (9th Cir. 1983); California Consumers vColumbia House, Case No. C-97-3233-VRW 1997 U.S. Dist. LEXIS 20649 at *3-4 (N.D.Cal. Dec. 24, 1997), citing Lujan v . Defenders of Wildlife, 504 U.S. 555, 601-61 (1992)and Warth v . Seldin, 422 U.S. 490, 498 (1973). Central to the Filer's standing is whetherthe Filer has a "personal stake" in the controversy's outcome. Stoianoff, 695 F .2d at1223; see Lujan, 504 U.S. at 601-61; Warth 422 U.S. at 498.

In this case, the Filer has not alleged, nor made any sworn statement regardingwhether or not he or she is a defendant, but claims that his or her involvement as a partyis "possible." Merely "possible" participation, however, does not create a ''personalstake" in the litigation that is sufficient for the Court to entertain Doe's motion. See

entertain his or her Motion to Dismiss.

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14 Hack, The Register (Sept.27, 2010),

19 peer infringers, including Larry Flynt Productions. Wconeybeer, Hustler Continues20 Filing New Suits Despite DDoS Attacks, myce.com (Oct. 28, 2010),

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(b) The Filer may not even be one of the AT&T Subscribers.In this matter, Plaintiff seeks to hold responsible the individuals who infringed its

copyrighted works using peer-to-peer technology. Many people vehemently opposecopyright holder lawsuits in which the right holders seek to enforcement their copyrightsin this manner. In the past, these detractors have shown a willingness to engage inextreme tactics in order to disrupt litigation. For example, in September 2010, a group ofhackers conducted a "Distributed Denial of Service" (DDoS) attack on a UK-based lawfirm that was prosecuting peer-to-peer infringement cases. The hackers obtained anddistributed passwords, personal information and confidential e-mails from the law firm aspart of their attack. John Leyden, Anti-Piracy Lawyers' Email Database Leaked After

http://www.theregister.co.ukl2010/09/27/anti piracy lawyer email leak! (lastaccessedMar. 24, 2011).

These hackers have also engaged in attacks on plaintiffs who have sued peer-to-

http://www.myce.com!news!hustler-continues- filing-new-Iawsuits-despite-anonymous-ddos-attacks-35952/ (last accessed Mar. 24, 2011). Perhaps coincidentally, but perhapsnot, the loosely-knit group of hackers that carried out these attacks call themselves"Anonymous. "

Given the range and intensity of disdain peer-to-peer users have towards copyrightlitigation, it is reasonable to consider that the non-party Filer may have filed his or her

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Motion to express opposition to this type of litigation generally and is in no waypersonally related to the case. This is especially reasonable in light of the fact that he orshe did not claim to be a defendant and did not claim to be an AT&T subscriber orotherwise explain why he or she might be a possible defendant. If a non-party desires tooffer an opinion or present a position to the Court, the proper course is to request leave toapproach the Court as an amicus, which the non-party Filer has not done.

(c) Even if the Filer is an AT&T Subscriber, that alone does not indicatehe or she will be named as a Defendant.

Finally, even if the non-party Filer were one of the AT&T subscribers, that factalone does not identify him or her as a defendant or even a possible defendant. Plaintiffhas brought other similar actions - some in the past and others currently pending. Inthose actions, Plaintiff sought and obtained the identity of many subscribers assigned IPaddresses associated with infringing activity. Yet, for various reasons Plaintiff elected

not to proceed against many of these individuals. In some cases the subscriber was notthe infringer, and in other cases the subscriber was the infringer but extenuatingcircumstances came into play. Just because Plaintiff seeks subscriber information for anIP address associated with infringing activity, does not mean Plaintiff will name theassociated Subscriber as a Defendant. Further investigation is required to determine ifPlaintiff will name an individual in lieu of a Doe Defendant, and if so whom.

The Filer is not currently a defendant in this law suit and has provided no facts tosuggest that he or she will ever be a defendant in this law suit. If he or she is named as adefendant at some time in the future, he or she may bring a properly noticed and signed

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26 known. See Fed. R. Civ. P. 10(a), requiring that all parties be named in the caption of27 any filing. Allowing parties to proceed anonymously, or pseudonymously, is inimical to28

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1 Motion to Dismiss. Until that time he or she may not.II. THE NON-PARTY FILER HAS NO RIGHT TO PROCEED

ANONYMOUSLY IN THIS CASE.Filer, identifying him or herself as a "Possible John Doe," declined to establish

whether he or she is a party, or some other individual or entity. Defendants have beenidentified as "John Doe" in this case because their true identities are not yet known. AsPlaintiff discovers the Defendants' true identities, they will be added to the caption andproceeded against as in any other action where the identities of all parties are known fromthe beginning.

The identity of the parties in any action - civil or criminal - should not beconcealed. United States v. Stoterau, 524 F.3d 988, 1012 (9th Cir. 2008). The burden toproceed anonymously is a high one, and requires the party seeking anonymity todemonstrate that 1) identification creates of retaliatory physical or mental harm; 2)

anonymity is necessary to preserve privacy in a matter of a sensitive and highly personalnature; or 3) the anonymous party is compelled to admit his or her intention to engage inillegal conduct, thus risking criminal prosecution. Does I through XXIII v. AdvancedTextile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000), citing James v. Jacobson, 6 F.3d 233,238 (4th Cir. 1993) and Doe v. Stegall, 653 F.2d 180,186 (5th Cir. 1981).

Indeed, it is unusual for parties to proceed anonymously once joined in litigation,and the Federal Rules of Civil Procedure operate to ensure the parties to litigation are

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26 11(a). "The court must strike an unsigned paper unless the omission is promptly27 corrected after being called to the attorney's or party's attention." Id. (emphasis added.)28

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this goal, and parties must seek leave from the court to do so. Does I through XXIII, 214F.3d at 1064-65.

The Filer has not done so in this case, and cannot meet the standards required toproceed anonymously. Not only has there been no motion to proceed anonymously, theFiler's Motion to Dismiss (Doc. # 16) cannot even be construed as a request for suchrelief from the Court. Namely, the Motion to Dismiss fails to address any of the threeprerequisite circumstances required to proceed anonymously by Does I through XXIII.As the Filer is not entitled to proceed anonymously - but erroneously assumed he or shecould - the Court should strike his or her Motion to Dismiss as being improperly filed byan individual with no right to proceed anonymously.

III. THE COURT MUST STRIKE UNSIGNED PAPERS FILED WITH THECOURT.For the reasons stated above, the Filer is not a party or a recognized amicus to

the Court and has no right or standing to file any papers with the Court, much less aMotion to Dismiss. However, even if the Filer were a bona fide party or amicus, he orshe would not be allowed to file papers anonymously.

Federal Rule of Civil Procedure Number 11 reads in part, "[e]very pleading,written motion, and other paper must be signed by at least one attorney of record in theattorney's name - or by a party personally if the party is unrepresented. The paper muststate the signer's address, e-mail address, and telephone number." Fed. Rule Civ. Pro.

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The non-party Filer did not sign the Motion to Dismiss and thus The Courtmust strike the document.

CONCLUSIONAllowing individuals with no demonstrated relationship to an action to direct

litigation by filing anonymous papers would almost certainly lead to unrestrained chaos.For the reasons stated herein, namely that the Filer is not a party to this action, has notbeen granted leave to proceed anonymously, and failed to properly sign (or notice) theMotion, the Court should strike and disregard the anonymously filed Motion to Dismiss.

Respectfully Submitted,

Dated: March 25, 2011 lsi D. Gill SperleinD. Gill SperleinTHE LAW OFFICE OF D. GILL SPERLEINAttorney for Plaintiff

Documents

310-Cv-03647-MEJ Docket 18 Opposition to Motion to Dismiss