10-cv-04381-cw docket 40 opposition to motion to dismiss

8/6/2019 10-Cv-04381-CW Docket 40 Opposition to Motion to Dismiss

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)) CASE NO.: C-I0-4381 (CW))) PLAINTIFF 10GROUP, INC.'S) OPPOSITION TO S.P.'S MOTION TO) DISMISS FOR LACK OF PERSONAL) JURISDICTION.)) No Hearing Date))))

Case4:10-cv-04381-CW Document40 Filed02/23/11 Page1 of 8

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D. GILL SPERLEIN (SBN 172887)THE LAWOFFICE OFD. GILL SPERLEIN584 Castro Street, Suite 879San Francisco, California 94114Telephone: (415) 404-6615Facsimile: (415) 404-6616

9 UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIAOAKLAND DIVISION

20 PROCEDURAL SUMMARY21 Plaintiff filed this action for copyright infringement against 138 Doe Defendants.22

The infringing activity occurred on line and the only information Plaintiff had as to who24 engaged in the infringing activity was the ip address used to access the Internet to engage25 in the activity. Thus, Plaintiff moved for leave to take early discovery, which the Court

permitted. (Order Granting Plaintiffs Request for Leave to Take Early Discovery, Docket27

45 [email protected]

7 Attorney for plaintiff10GROUP, INC.

28 No. 14.) Plaintiff served a subpoena on the Internet access provider Verizon Internet

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101112 10GROUP, INC. d/b/a TITANMEDIA, aCalifornia corporation,1314 Plaintiff,15 vs.16 Does 1-138, individuals,17

Defendants.1819

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-1-PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS

C-I0-4381 (CW)
mailto:[email protected]:[email protected]


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PLAINTIFF'S OPPOSITION TO MOTION TO DISMISSC-I0-4381 (CW)


requesting identifying information for the subscriber who Verizon had assigned various ipaddresses at various dates and times.

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4 s.P. is one of the account holder's for whom Plaintiff subpoenaed records. Prior to5 the release of his or her information by Verizon, S.P. filed a Motion to Quash (Docket No.6 22), Motion Protective Order (Docket No. 20), and this Motion to Dismiss (Docket No.78 21), as well as a supporting affidavit. (Docket No. 23)9 The Court referred the Motion to Quash (Docket Nos. 24) and later, the Motion for10 Protective Order to Magistrate Judge Ryu and set the briefing schedule on the Motion to1112 Dismiss for Lack of Jurisdiction. (Docket No. 36). Judge Ryu denied S.P.'s Motion to13 Quash and set the briefing schedule on S.P. 's Motion for Protective Order. (Docket No.14 37).15 SUMMARY OF ARGUMENT1617 S.P. ' s motion to dismiss for lack of jurisdiction must fail, because the motion is18 premature, as Plaintiff has not yet identified or named a defendant in lieu of Doe No. 101920

Even if the motion were properly before the Court, Plaintiff has alleged sufficient facts to21 establish personal jurisdiction in this Court. Moreover, Plaintiff believes S.P. filed a22 motion ghost written by a Florida attorney for the improper purpose of increasing23 Plaintiff s litigation costs in order to gain a tactical advantage and dissuade Plaintiff from2425 pursuing its proper claims.26

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I. S.P.'s MOTION TO DISMISS FOR LACK OF JURISDICTION ISPREMATURE.

3 The threshold problem with S.P.' s Motion to Dismiss is that S.P. is not currently a4 party to this action. Plaintiff may never seek to substitute S.P. for current Doe 105

6 placeholder, because S.P. may not actually be the individual who engaged in the infringing7 acts. In fact, S.P. has specifically denied knowledge of the infringement. [Affidavit in8 Support of Motions to Dismiss, Motion to Quash, and General Defenses, p. 3, ~2.]910 First, Plaintiff has not claimed that the subscriber assigned the ip address11 173.49.157.78 is one and the same as the infringing individual identified as Doe No. lOin12 the original Complaint. Rather, Plaintiff has stated that Doe lOused the corresponding1314 Internet account (which we now know belonged to S.P.) to engage in the infringing15 activity. Indeed, S.P. by denying knowledge of the infringing activity has denied being the16 defendant Plaintiff seeks to pursue. After Plaintiff discovers S.P.'s identity (as the owner17

18 of the Internet account used to infringe), Plaintiff may further investigate to determine to19 whom S.P. provided use of his Internet account, if anyone. After this investigation,

Plaintiff may elect to name the account holder S.P. as the defendant or it may namesomeone entirely other than S.P. Plaintiff may even need additional discovery todetermine who it will name in lieu of Doe No. 10. However, the investigation cannotmove forward until Plaintiff learns the identity and contact information of the accountholder.

Even if Plaintiff concludes after its investigation that it should name S.P. as theproper defendant, Plaintiff can only at that time fully consider and evaluate the issue of

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27 jurisdiction, the district court must draw all reasonable inferences arising from the proof,

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personal jurisdiction. At that time, Plaintiff may marshal facts that support a finding ofpersonal jurisdiction in the Northern District of California, or it may agree that newly

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4 discovered facts require it to dismiss the case from the Northern District of California and5 re-file in another district. Again, Plaintiff cannot perform this analysis until Plaintiff learns6 the identity and contact information of the account holder and determines who should78 actually stand as defendant in lieu of the placeholder Doe No. 10.9 II. PLAINTIFF HAS PRESENTED FACTS SUFFICIENT TO ESTABLISH

PERSONAL JURISDICTION AGAINST DEFENDANT1011 Regardless of whom Plaintiff eventually elects to substitute as the true party12 defendant in lieu of the placeholder Doe Number 10, the facts, as they currently exist,1314 support a finding of personal jurisdiction against the Defendant, based not on where he15 lives, but on his actions.16 "If the existence of jurisdiction turns on disputed facts, the court may resolve the17

18 challenge after a separate evidentiary hearing, or may defer ruling pending receipt at trial19 of evidence relevant to the jurisdictional question. If the court chooses to rule solely on

the basis of the complaint, affidavits, and discovery materials, 'the burden on the plaintiffis simply to make a prima facie showing of a sufficient jurisdictional basis in order tosurvive the jurisdictional challenge'." Costar Group, Inc. v. LoopNet, Inc., 106 F.Supp.2d780, 783 (D. Md. 2000), citing Combs v. Bakker, 886 F.2d 673,676 (4th Cir. 1989).

"In deciding whether the plaintiff has proved a prima facie case of personal

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2021 &Assocs., 114 F. Supp. 2d 856, 862 (D. Minn. 2000).22

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Case4:10-cv-04381-CW Document40 Filed02/23/11 PageSof 8

and resolve all factual disputes, in the plaintiff's favor." Id. at 784, citing Mylan Labs, Inc.v.Akzo, N V. ,2 F.3d 59,60 (4th Cir. 1993). Plaintiff meets this standard.

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4 The Complaint, Plaintiffs Motion for Early Discovery, this Opposition, and the5 supporting declaration of. D. Gill Sperlein sufficiently prove by a preponderance of the6 evidence that personal jurisdiction over Defendant is proper although only prima facie78 evidence is required.9 An individual can subject himself to personal jurisdiction in a state when he10 engages in intentional acts which he knew would cause harm in the forum state.1112 Panavision International, L.P. v. Toppen, 141 F.3d 1316, 1321 (9th Cir. 1998)("In tort13 cases, jurisdiction may attach if the defendant's conduct is aimed at or has an effect in the14 forum state.").15

16 Copyright infringement may be characterized as an intentional tort. See, Columbia17 Pictures Television v. Krypton Broad. of Birmingham, Inc., 106 F.3d 284, 289 (9th Cir.18 1997), overruled on other grounds by Feltner v. Columbia Pictures Television, 523 U.S.19 340,140 L. Ed. 2d 438,118 S. Ct. 1279 (1998); Janel Russell Designs, Inc. v. Mendelson

The Effects Doctrine holds that personal jurisdiction can be based on "(1)intentional actions (2) expressly aimed at the forum state (3) causing harm, the brunt ofwhich is suffered -- and which the defendant knows is likely to be suffered -- in the forumstate." Toppen 141 F.3d at 1321 (quoting Core-Vent Corp. v. Nobel Industries AB, 11 F.3d

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1482, 1486 (9th Cir. 1993). See also, 10 Group, Inc. v. Pivitol, Inc., 2004 U.S. Dist. LEXIS6673*16 (N.D. Cal.}.

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4 In Toeppen, the Ninth Circuit specifically stated that, "[b]ecause the defendant's5 tortuous behavior was knowingly aimed at a company whose principal place of business6 was in California, and whose industry -- the entertainment industry -- was primarily78 located in California, defendant's conduct was likely to have an effect in the forum state.9 As Defendant knew his actions were likely to cause harm in California, under the "effects10 test," the purposeful availment requirement necessary for specific, personal jurisdiction1112 was satisfied." Toeppen at 1322. Courts of this district have applied the same principle in13 the copyright infringement context. 3DO Co. v. Poptop Software, Inc., 1998 U.S. Dist.14 Lexis 21281(N.D.Cal. Oct. 27, 1998), citing Toeppen, 141 F3d at 1322; 10 Group, Inc. v15

16 Pivitol, Inc., 2004 us. Dist. LEXIS 6673*16 (N.D. Cal)17 Defendant Doe 10 infringed 10 Group's work110 Degrees in Tucson. (Complaint at18 ~31.) The registration for the work on file with the U.S. Copyright office identifies 1019 Group, Inc. as the owner of the work and identifies 10 Group's San Francisco Address.

[Sperlein Declaration at ~8, Exhibit D.] 17 USC 205(c) ("Recordation of a document inthe Copyright Office gives all persons constructive notice of the facts stated in therecorded document); See, Moldo v. Matsco, Inc. (In re Cybernetic Servs.), 239 B.R. 917,922 (B.A.P. 9th Cir. 1999). Thus, the infringer had knowledge that his intentional actswould cause harm in this district, fulfilling the requirements of the Effects Test. Theinfringer, whether S.P. or someone else to whom S.P. provided Internet access, knew orshould have known his infringing actions would cause harm to 10 Group, Inc. in the

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Case4:10-cv-04381-CW Document40 Filed02/23/11 Page? of 8

Northern District of California and therefore can expect to defend his or her actions in thisdistrict.

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4 III. S.P.'s Motion for Protective Order Should Fail because S.P. Filed theMotion for an Improper Purpose.5

6 For the reasons stated above S.P.'s motion must fail, however, even if the motion7 were valid and proper on its face, it would still have to fail because it was filed for an8 improper purpose - a purpose that warrants sanctions against S.P. and the attorney from910 whom he or she obtained the ill-advised filings.11 Although S.P. represents to the Court that s/he appears pro per, Florida attorney12 Graham Syfert drafted all of the filings and sold them to S.P. for $19.99. S.P. got what1314 s/he paid for. (Sperlein Declaration in Support of Opposition at ~~ 3 and 4.)15 Recently, many copyright holders, frustrated by the increasing copying and16 distribution of their works through peer-to-peer (P2P) technologies, have commenced17

18 bringing claims against those individuals directly responsible for placing those works on19 the P2P networks.

In response, Mr. Syfert commenced selling ghost-written motions to individualsaccused of P2P piracy. The practice of providing motions to individuals for use in aspecific case without establishing an attorney client relationship creates its own ethicaldifficulties. However, the truly troubling aspect of Mr. Syfert's actions is that he knowsand admits that the motions are meritless and nonetheless sells them and encourages hiscustomers? / clients? to file them nonetheless. (Id. at ~~5 and 6) Apparently, he believes itis entirely proper to sell the motions to individuals with whom he has no attorney client

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relationship and to counsel those individuals to file the motions for the sole purpose ofincreasing copyright holder's litigation costs. He has public ally admitted that "every

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4 single motion to quash has failed" but that they "create more work for the people suing5 you, and therefore it will take more effort to reveal your identity." (Id.) Based on the6 totally meritless nature of the Syfert-drafted Motion to Dismiss and Motion for Protective78 Order, which are sold as part of a package, it is apparent that these motions are designed9 with the same purpose in mind, i.e. simply to frustrate plaintiffs.10 The Court should deny S.P. 's motion for protective order, not only because the1112 motion has no merit, which it clearly does not, but also because S.P. brought the motion in13 the first instance simply to create additional work for Plaintiff and its attorneys - a clearly14 improper purpose. Plaintiff will seek sanctions against S.P. and Graham Syfert for the15

16 unlawful filing of the motion.17 CONCLUSION18 S.P. ' s motion is premature and in any event fails to overcome Plaintiffs prima1920

facia evidence establishing personal jurisdiction. Moreover, S.P. filed a group of motions21 with the sole intention of increasing Plaintiffs litigation costs. Thus, the Court should22 deny S.P.' s Motion to Dismiss.23 Dated: February 22, 2011 Respectfully submitted,2425 lsiD. Gill Sperlein26 D. GILL SPERLEINAttorney for Plaintiff 10 GROUP, INC.2728

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10-cv-04381-cw docket 40 opposition to motion to dismiss

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