260 Doe 1432 Motion To Quash Protective Order Dismiss Sever PDF

Case 2:11-cv-00545-JES-SPC Document 260
Filed 06/29/12 Page 1 of 23 PageID 2512
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION NU IMAGE, INC, ) ) Plaintiff, ) ) v. ) ) DOES 13932, ) ) Defendants. ) ______________________________ )
Civil Action No. 2:11-cv-000545-JES-SPC
DOE 1432S MOTION TO QUASH SUBPOENA AND FOR PROTECTIVE ORDER, AND MOTION TO DISMISS OR, IN THE ALTERNATIVE, SEVER ACTION, WITH INCORPORATED MEMORANDUM OF LAW COMES undersigned NOW Defendant Doe 1432, by to and through the
attorney,
and,
pursuant
Rules
12(b)(1),
12(b)(3), 26, 45(c)(3), and/or 12(b)(2) Federal Rules of Civil Procedure, moves this Honorable Court to QUASH the subpoena issued by Plaintiff, NU IMAGE, INC. and issue a protective order; to DISMISS the action for lack of personal jurisdiction, lack of venue, and/or lack of Plaintiffs capacity to sue in the state of Florida; or, in the alternative, pursuant to Rules 20 and 21, moves this Court to SEVER the action and DISMISS all defendants, except Doe 1, for improper joinder.
CONTENTS OF THIS MOTION I. II. Introduction .......................................... 2 Doe 1432 resides outside the State of Florida; therefore the subpoena should be quashed and claims against Doe 1432 dismissed for lack of personal jurisdiction. ..... 3
III. Because the complaint fails on its face to sufficiently plead personal jurisdiction, the subpoena should be quashed and the complaint dismissed ................... 5 IV. V. VI. The complaint should be dismissed for improper venue .. 8 The action should be dismissed as Plaintiff lacks the capacity to sue in the State of Florida .............. 10 The subpoena should be quashed, and a protective order entered against Doe 1432, because the subpoena is overbroad and exceeds the bounds of fair discovery ... 11
VII. This action should be severed, and claims against all Defendants, except Doe 1, should be dismissed for improper joinder ..................................... 18 VIII. Conclusion ........................................... 22
ARGUMENT I. Introduction On September 26, 2011, Plaintiff, NU IMAGE, INC., a
California corporation, filed the instant action against 3932 unidentified John Does for alleged copyright infringement of a film titled The Mechanic. Subsequently, this Court granted Nu Image leave to serve subpoenas on non-party Internet service providers for the
Nu Image, Inc. v. Does 1-3932, 2:11-cv-00545-JES-SPC

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Doe 1432s Motion to Quash and Dismiss Page 2 of 23
names, telephone numbers, addresses, and email addresses of the John Does, accountholders listed in an for 3932 Internet 1-1) Protocol to Nu (IP)
addresses complaint.
exhibit
(Doc,
Images
On or about June 5, 2012, Doe 1432 received a letter from Comcast, with a copy of such a subpoena attached. II. Doe 1432 resides outside the state of Florida; therefore the subpoena should be quashed and claims against same dismissed for lack of personal jurisdiction. First, because this Court lacks personal jurisdiction over Doe 1432, the subpoena for Comcasts records on Doe 1432 should be quashed. As is shown in the attached declaration, Doe 1432 has never resided in Florida and has no continuing or minimum
contacts with Florida.
Furthermore, a geolocation report on
the IP address listed by Nu Image for Doe 1432, 67.187.11.102, reveals its location to be in or near Danville, Virginia, which is about 500 miles from Floridas northernmost border. [W]hile these geolocation services are not 100% accurate, these
services can place a user no farther away than a city that borders the users actual location. Nu Image, Inc. v. Does 123,322, 799 F.Supp.2d 34, 41 (D.C. Dist. 2011) (referring to the geolocation service at whatismyipaddress.com, which is the one used in the exhibit attached to Doe 1432s declaration).
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This Court earlier made an in-depth analysis of Floridas long arm jurisdiction statute and concluded that Nu Image does not meet its initial burden of personal jurisdiction. Doc. 188, published at 2012 WL 1389030 (April 20, 2012, granting Doe 897s Motion to Quash); Doc. 184, published at 2012 WL 1382251 (April 20, 2012, granting Doe 313s Motion to Quash).
Therefore, the Court should adopt the analyses on Floridas long-arm jurisdiction made in these previously entered orders. In those earlier orders, this Court also concluded that Nu Image could not confer personal jurisdiction over Does
(including Does 897 and 313) who reside outside the State of Florida and who, like Doe 1432, have no minimum contacts with the forum state. Therefore, this court cannot confer personal
jurisdiction over Doe 1432, who similarly resides outside of and has no contacts with Florida. Thus, based on the analysis of this Court in Docs 184 and 188, the subpoena must be
quashed.
Furthermore, because any further discovery requests
for information relating to Doe 1432 would create an undue burden or expense for Doe 1432, good cause exists for this Court to issue a protective order forbidding the disclosure of Doe 1432s identity and contact info.

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III. The complaint fails to sufficiently plead personal jurisdiction; therefore the subpoena should be quashed and the complaint dismissed. The subpoena for Comcasts records on Doe 1432 should be quashed and Nu Images complaint dismissed because, even where the complaint is construed in the light most favorable to Nu Image, on its face it fails to sufficiently plead personal jurisdiction. The plaintiff is required to plead sufficient material facts to form a basis for in personam jurisdiction. Walack v. Worldwide Mach. Sales, Inc., 278 F. Supp. 2d 1358, 1364 (M.D. Fla. 2003). A court without personal jurisdiction is
powerless to take further action. Doc. 250, published at 2012 WL 1890829 *2 (quoting Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 n. 6 (11th Cir. 1999)); Doc. 244, published at 2012 WL 1890632 *3). A courts personal jurisdiction over a
defendant is not a meaningless gesture. Id.
The requirement
of personal jurisdiction flows from the Due Process Clause, and recognizes and protects an individual liberty interest. . . . Thus, the test for personal jurisdiction requires that the maintenance of the suit not offend traditional notions of fair play and substantial justice. Id. (citations omitted). The test of is determining two-fold: the existence of personal must be
jurisdiction
First,
jurisdiction

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appropriate under the state long-arm statute; next, it must not violate the constitutional right to due process. Doc 184,
published at 2012 WL 1382251 *2 (April 20, 2012) (citing United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009); see also Walack, 278 F. Supp. 2d at 1365. A plaintiff bears
the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction. Id., 2012 WL 1382251 *2. In its Complaint, Nu Image attempts, but fails, to meet its initial burden by stating: Although the true identity of each
Defendant is unknown to the Plaintiff at this time, on information and belief, each Defendant may be found in this District
and/or a substantial part of the acts of infringement complained herein occurred in this District. On information and belief,
personal jurisdiction in this District is proper because each Defendant, without
consent or permission of the Plaintiff as exclusive offered works to rights owner, distributed the has and
distribute which
over
Internet exclusive
for
Plaintiff

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rights. occurred in
Such every
unlawful
distribution in the
jurisdiction
United States, including this one. (Doc. 1 at 2-3 5.) On May 24, 2012, the Honorable John E. Steele entered an opinion finding these above-quoted allegations insufficient to allege personal jurisdiction over any defendant under the
Florida long-arm statute and the Due Process Clause. Doc. 250, 2012 WL 1890829 *3 (citing Internet Solutions Corp. v.
Marshall, 611 F.3d 1368 (11th Cir. 2010); Bond v. Ivy Tech State College, 167 F.Appx 103, 106 (11th Cir. 2006)) (granting motions to quash filed by Does 190, 191, 192, 194, 195, and 202). Judge Steel further concluded that participation in a
BitTorrent swarm does not provide the necessary minimum contact with the State LLC v. of Florida. No. Id. *6 (citing Liberty 2012 WL Media 28788
Holding,
Tabora,
11cv651IEG,
(S.D.Cal. Jan. 4, 2012)). This Court made a similar determination in April,
concluding that Nu Image failed to allege sufficient facts in the Complaint to make out a prima facie case against the
Defendant. Doc. 184, 2012 WL 1382251 *2 (granting Doe 313s motion to quash for lack of personal jurisdiction); see also Doc 188, published at 2012 WL 1389030 *2 (April 20, 2012)
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(granting
Doe
897s
motion
to
quash
for
lack
of
personal
jurisdiction); and Doc. 163, published at 2012 WL 1231930 *2 (April 12, 2012) (granting Doe 826s motion to quash for lack of personal jurisdiction). Therefore, because this Court has already found Nu Images allegations insufficient to satisfy a prima facie case for personal jurisdiction, this Court should adopt and apply the analysis in its previous Order (Doc. 244) and quash the
subpoena with reference to Doe 1432.
Furthermore, because the
complaint is insufficient on its face, it should be dismissed, pursuant to Rule 12(b)(2), Federal Rules of Civil Procedure. IV. The suit should be dismissed for improper venue. Next, the subpoena should be quashed and the complaint, or at minimum the claims against Doe 1432, dismissed pursuant to Rule 12(b)(3) for improper venue. First, the Plaintiff does Next, venue is this judicial
not sufficiently plead venue in its complaint. improper district. On a motion to dismiss based on because Doe 1432 resides outside
improper
venue,
the
plaintiff has the burden of showing that venue in the forum is proper. Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 1268 (S.D. Fla. 2004) the (citations Copyright omitted). Act is Venue for not claims by the
asserted
under
determined

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general
provision
governing
suits
in
the
federal
district
courts, but rather by the Copyright Act itself, which requires that a civil suit to enforce a copyright be brought in where the defendant or his agent resides or may be found. 28 U.S.C. 1400(a) (cited by Nu Image, Inc. v. Does 1-23,322, 11-cv00301(RLW), 2011 WL 3240562 (D.D.C. 2011)). In its complaint, Nu Image makes the wholly insufficient allegation that venue is proper because each Defendant may be found in this District and/or a substantial part of the acts of infringement complained of herein occurred in this District. (Doc. 1 at 2 5, emphasis added). First, pursuant to 28
U.S.C. 1400(a), venue is not proper where the infringement occurred but rather in the judicial district where the
defendant . . . resides or may be found.
Therefore, to state
that each of 3932 John Does either may be found in this District entirely or too certain vague acts an occurred allegation in to this be district is
sufficient.
Furthermore, as is shown on the attached declaration, Doe 1432 does not reside in and cannot be found in this judicial
district, and never has resided in this judicial district; thus, venue herein is improper. be quashed and a protective Therefore, the subpoena should order entered to prevent the
disclosure of Doe 1432s identifying information.

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Furthermore,
the complaint, or, at a minimum, all counts against Doe 1432, should be dismissed for improper venue. V. The action should be dismissed, as capacity to sue in the state of Florida. Plaintiff lacks
Furthermore, because Nu Image is not registered with the State of Florida, Division of Corporations, it is barred from maintaining this or any other action as a plaintiff in Florida. Florida law provides that any corporation failing to file an annual report with the Secretary of State shall not be
permitted to maintain or defend any action in any court of this state until such report is filed and all fees and taxes due under this act are paid and shall be subject to dissolution or cancellation of its certificate of authority to do business as provided in this act. Fla. Stat. 607.1622(8). E.g., Davis Tune, Inc. v. Precision Franchising, LLC., 3:05CV97/RV, 2005 WL 1204618 (N.D. Fla. 2005); DeSilva Const. Corp. v. Herrald, 213 F. Supp. 184, 191-92 (M.D. Fla. 1962) (distinguished on other grounds). The only NU IMAGE INC in the State of Floridas Division of Corporation records is a fictitious name for a company in Tallahassee; such company however is obviously not the Nu Image at bar because it is not a California company, as Nu Image alleges in its complaint. See http://www.sunbiz.org. There is

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no foreign corporation in the states records with the name Nu Image, Inc. Id. Therefore, because Nu Image is not a properly
registered corporation in Florida, it lacks the capacity to sue in this state; thus, the lawsuit should be dismissed. VI. The subpoena should be quashed, and a protective order entered against Doe 1432, because the subpoena is overbroad and exceeds the bounds of fair discovery. Next, overbroad, the subpoena the should bounds be of quashed fair because it is and
exceeds
discovery,
constitutes an undue burden. not reasonably calculated
Where a subpoena is overbroad or to lead to the discovery of
admissible evidence, it is considered an undue burden and subject to being quashed pursuant to Rule 45. E.g., Pacific Century Intl, Ltd. v. John Does 1-37, 2012 WL 1072312 (N.D. Ill. March 30, 2012); Premer v. Corestaff Services, L.P., 232 F.R.D. 692, 693 (M.D. Fla. 2005). Where, as here, the underlying action has significant
procedural defects and the subpoenas primary purpose is not to obtain information for use in the litigation but rather to extract money from numerous individuals, many of whom are
clearly not subject to jurisdiction or venue in this Court, any request to identify such individuals is an undue burden. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 See n.17
(1978) (when the purpose of a discovery request is to gather

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information for use in proceedings other than the pending suit, discovery properly is denied); Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (pre-Rule 26 discovery should be denied where it would not uncover [the defendants]
identities, or that the complaint would be dismissed on other grounds). As stated above, Doe 1432 is outside this judicial
district, and thus cannot be properly brought into this action as a party. Additional reasons that the subpoena subjects Doe
1432 to an undue burden are: (a) the main purpose of the subpoena is to obtain Doe 1432s information so Plaintiff can try to extract a settlement out of him or her; (b) if Plaintiff does intend to use Doe 1432s identifying information to name him or her as a Defendant in the instant case, Defendant will be forced to incur the undue burden of having to defend him or herself in a case not only where he is not subject to the courts jurisdiction or venue, but where the Plaintiff has improperly and A. unfairly joined nearly 4000 defendants.
The purpose of the subpoena is to collect information not for use in litigation, but rather to extort settlement payments.
First, the Plaintiffs main purpose of seeking Doe 1432s identifying information is not for use in litigation but rather to extort settlement payments. Cases like the instant one are
used as a strong tool for leveraging settlements a tool

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whose
efficiency
is
largely
derived
from
the
plaintiffs
success in avoiding the filing fees for multiple suits and gaining early access en masse to the identities of alleged infringers. MCGIP, LLC v. Doe, No. 4:2011cv02331, 2011 WL 4352110, at *4 n.5 (N.D. Cal. Sept. 16, 2011). Courts have
recognized that in these mass-Doe cases, plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants personal information and coerce payment from them. K-Beech, Inc. v. Does 1-85, 3:11cv469, 2011 U.S. Dist. LEXIS 124581 *6 (E.D. Va.). The plaintiffs seemingly have no
interest in actually litigating the cases, but rather simply have used the Court and to its shake subpoena down the powers John to obtain Id.
sufficient
information
Does.
(adding that the plaintiff should be required to show cause why certain conduct does not violate Rule 11.) See also
Lightspeed v. Does 1-1000, No. 10 C 5604, 2011 US Dist. LEXIS 35392 (N.D. Ill. Mar. 31, 2011). [A]lmost all these cases
end in settlement and few, if any, are resolved on their merits. Third Degree Films, 2012 WL 669055 (April 27, 2012). B. Plaintiff improperly joined nearly 4000 defendants.
Next, were Plaintiff to obtain Doe 1432s identity and name him or her as a Defendant, Doe 1432 would be subject to the undue burden and expense of having to defend in a case
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where the Does are improperly joined. Like many other similar copyright cases against multiple John Does, Celestial utilizes a theory known as swarm
joinder, alleging that each of the unidentified Doe Defendants simultaneously uploaded and downloaded a protected work.
E.g., Raw Films, Inc. v. Does 1-32, 1:11-CV-2939-TWT, 2011 WL 6840590 (N.D. Ga. 2011). This theory has been considered by
various district courts, the majority of which have rejected it. Id. (citing On The Cheap v. Does 1-5011, No. C10-4472 BZ, 2011 WL 4018258, at *1 (Sept. 6, 2011)); see also Liberty Media Holdings, LLC, 277 F.R.D. 672, 675 (S.D. Fla. 2011) (finding mass John Doe joinder inappropriate). Joinder is improper because Nu Images claims against the 3932 Does do or not arise of out of the same or transaction, as
occurrence,
series
transactions
occurrences
required by Rule 20(a)(2) for permissive joinder of parties. Downloading a work as part of a swarm does not constitute acting in concert with one another, particularly when the transactions happen over a long period. Raw Films, Inc., 1:11CV-2939-TWT, 2011 WL 6840590 (citing Hard Drive Productions, Inc. v. Does 1188, No. C1101566 JCS, 2011 WL 3740473, at *13 (N.D. Cal.). The exhibit attached to Nu Images complaint reflects that
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the alleged illegal downloads occurred on different days and times; this negates the allegation that all Doe Defendants were part of a single swarm. According to the exhibit attached to
the complaint, the alleged swarm began on or about July 1, 2011, and ended on or about August 8, 2011, more than a month later. Furthermore, as each Doe has a different IP address, Therefore, as true,
all files were downloaded at different locations. even taking the allegations of the complaint
Defendants could not have possibly participated in the same transaction, occurrence. occurrence, See LaFace or series LLC v. of Does transaction 1-38, 2008 or WL
Records,
544992 *7 (E.D.N.C. 2008) (merely committing the same type of violation in the same way does not link defendants together for purposes of joinder); Patrick Collins, Inc. v. Does 1-16, 6:12-cv-477-ACC-KRS, Order to Show Cause [Doc. 7, Page ID 93] (M.D. Fla. April 5, 2012) (finding Doe defendants to have not act[ed] in concert and not engaged in the same series of
transactions or occurrences). Furthermore, in a mass-joinder infringement case, the
reality is that each claim against each Doe involves different facts and defenses. Third Degree Films v. Does 1-108, Civ. No. PJM 12-1298, 2012 WL 1514807 (D.Md. April 27, 2012) (quoting CineTel Films, Inc. v. Does 1-1052, _F. Supp.2d._, 2012 WL
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1142272 *5 (D.Md. Apr. 4, 2012) and severing defendants after the motions to quash and sever have themselves presented a wide variety of factual and legal issues). With each
Defendant identified only by an IP address, the assumption that the person who pays for Internet access at a given
location is the same individual who allegedly downloaded a single sexually explicit film is tenuous. In Re: BitTorrent Adult Film Copyright Infringement Cases, No. 11-cv-03995, 2012 WL 1570765, 2012 U.S. Dist. LEXIS 61447 (E.D.N.Y. May 1, 2012). Due to the increasing popularity of wireless routers,
identifying a computer user by an IP address is unlikely, as different family members, visitors, or even neighbors could have performed the alleged downloads. Id. In another similar
case, one court observed that as many as 30% of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material. Digital Sin, Inc. v. Does 1-176, 2012 WL 263491 *3 (S.D.N.Y. Jan. 30, 2012). Thus, a substantial number of innocent persons are forced to incur the burden of defending these suits at their own expense. Furthermore, [m]uch of the BitTorrent protocol operates invisibly to the user after downloading a file, subsequent uploading takes place automatically if the user fails to close the program. In Re: BitTorrent Adult Film Copyright

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Infringement 2012).
Cases,
2012
WL
1570765,
*19
(E.D.N.Y.
May
1,
Thus, the user plays no role in these interactions.
The bare fact that Doe clicked on a command to participate in the BitTorrent Protocol does not mean that they were part of the downloading by unknown hundreds or thousands of individuals across the country or across the world. Hard Drive Prods., Inc. v. Does 1-188, 809 F.Supp.2d 1150, 1163 (N.D. Cal. 2011). See also Patrick Collins, Inc. v. John Does 1-23, 11-cv-15231, 2012 WL 1019034 (E.D. Mich. Mar. 26, 2012) (simply alleging the use of BitTorrent technology . . . does not comport with the requirements under Rule 20(a) for permissive joinder). Consequently, requirement of as Plaintiff has not the satisfied Doe the
establishing
that
Defendants
participated in the same transaction or occurrence within the meaning of Rule 20, of joinder these is improper. Therefore, is or
compelling likewise
discovery and
alleged
co-conspirators an undue burden
improper
would
constitute
expense under Rule 45. only appropriate if
Under the Federal Rules, discovery is information sought is reasonably
the
calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). When evaluating relevancy, a court
is not required to blind itself to the purpose for which a party seeks information, and when the the purpose of a

180-1432
discovery
request
is
to
gather
information
for
use
in
proceedings other than the pending suit, discovery properly is denied. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 n. 17 (1978). Because of the foregoing, and because the subpoenas at issue are overbroad and exceed the bounds of fair discovery, the court should, pursuant to Rule 45(c)(1), quash the subpoena and enter a protective order discovery to prevent annoyance, embarrassment, oppression, or undue burden or expense that
would befall Doe 1432 as a result of extortionate settlement tactics or having to defend in a case that is procedurally deficient for several reasons. VII. The action should be severed for improper joinder. Finally, should this Court not dismiss the entire action as requested above, it should sever it and dismiss the claims against all Does, except Doe 1, for improper joinder. At this
stage in the proceedings, prior to the identification of the Defendants, a determination can be made as to whether joinder is improper, as held by this judicial district. Interscope Records v. Does 1-25, No. 6:04-cv-197-Orl-22DAB, 2004 U.S.
Dist. LEXIS 27782, at *19 (M.D. Fla. Apr. 1, 2004) (ordering that all claims except those against Doe 1 be severed and

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allowing plaintiffs to initiate separate new actions as to all other John Doe defendants). Joinder is appropriate only where: (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. Fed. R. Civ. P. 20(a)(2). Even where these factors are met,
[t]he court may issue orders--including an order for separate trials--to protect a party against embarrassment, delay,
expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party. Fed. R. Civ. P. 20(b). Furthermore, [t]he court may also sever any claim against a party. Fed. R. Civ. Proc. 21 (cited by Liberty Media Holdings, LLC v.
BitTorrent Swarm, 277 F.R.D. 672, 674 (S.D. Fla. 2011)). In addition to the procedural errors already mentioned, swarm joinder tactics deny the federal courts additional
revenue from filing fees in the suits that should be filed to obtain the information the plaintiffs desire. Pac. Century Intl v. Does 1-37, 2012 WL 1072312, at *11 n.15 (N.D. Ill. Mar. 30, 2012) (citation omitted). See also Third Degree Films,

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2012 WL 669055 (April 27, 2012) (finding it patently unfair to permit Plaintiff to receive a windfall, securing all the
necessary personal information for settlement without paying more than a one-time filing fee.). Thus, these cases create
lost revenue of perhaps millions of dollars (from lost filing fees). In Re BitTorrent Adult Film Copyright Infringement
Cases, No. 2:11-cv-03995, at *22-23 (E.D.N.Y. May 1, 2012) (finding a loss of more than $100,000 in filing fees in the Eastern District of New York). filing fee of $350. Here, Nu Image paid a single
However, had Nu Image filed 3932 separate
actions to avoid improper joinder, it would have paid, and the Middle District of Florida would have received, one million, three hundred seventy-six thousand, two hundred dollars
($1,376,200.00) in filing fees.
[F]iling one mass action in
order to identify hundreds [or in this case, thousands] of doe defendants through pre-service discovery and facilitate mass settlement is not what the joinder rules were established for. Third Degree Films, 2012 WL 669055 (April 27, 2012). [T]he court is available to Plaintiff to enforce its copyright, but Plaintiff must separately file individual cases against each Doe Defendant. The joinder mechanism cannot be permitted in
these circumstances. Third Degree Films, 2012 WL 669055 (April 27, 2012).
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Severing
this
action
is
further
proper
because
the
numerous different facts and defenses at issue have the result of causing prejudice to the improperly joined Defendants. E.g., Bridgeport Music, Inc. v. 11C Music, 202 F.R.D. 229, 233 (M.D. Tenn. 2001) (If joined in one action, hundreds of Defendants will be subject to an overwhelming onslaught of materials and information unrelated to the specific claims against them all of which they must pay their attorney to review.). Moreover,
a question of judicial economy comes into play, especially considering potentially 3932 different sets of witnesses. See,
e.g., Digital Sins, Inc. v. Does 1-245, 11-cv-8170(CM), 2012 WL 1744838 (S.D.N.Y. May 15, 2012) (There are no litigation
economies to be gained from trying what are in essence 245 different cases together, because each of the John Does is likely to have some individual defense to assert.). For
instance, Doe 1 could be an innocent parent whose internet access was abused by her minor child, while John Doe 2 might share a computer with a roommate who infringed Plaintiffs works. BMG Music v. Does 1-203, 2004 WL 953888 *1 (E.D. Pa. 2004) (finding joined litigation inappropriate). Therefore, because the claims against the 3932 Does do not arise out of the same occurrence; because the Defendants will have many different questions of law and fact; because

180-1432
continued
joinder
will
prejudice
the
Defendants
and
strain
judicial economy; and because public policy disfavors joinder, if this Court does not dismiss the action for other reasons, it should sever the defendants, dismissing all but the first Doe from the lawsuit. VIII. Conclusion
In summary, for the forgoing reasons, the subpoena for Doe 1432s records should be quashed, a protective order should be entered, and the complaint dismissed. In the alternative,
should the Court not dismiss the action as a whole, the case should be severed, with claims against all Defendants, except Doe 1, dismissed for improper joinder. WHEREFORE, Defendant Doe 1432 respectfully requests that this Honorable Court enter an Order GRANTING this Motion and: 1. 2. 3. QUASHING the subpoena as to Doe 1432; ENTERING a PROTECTIVE ORDER, preventing Plaintiff from obtaining further discovery as to Doe 1432; AWARDING Doe 1432 his or her reasonable attorney fees incurred in the filing of this Motion, pursuant to Rules 26(c)(3) and 37(a)(5); and DISMISSING the complaint or the claims against Doe 1432 for (a) lack of personal jurisdiction, (b) improper venue, and/or (c) lack of capacity to sue in Florida; or, in the alternative: SEVERING this action and DISMISSING all but the first Defendant from this case.
4.

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RULE 26(c)(1) and 3.01(g) CERTIFICATE OF GOOD-FAITH COUNSEL I hereby certify that I conferred with counsel for
Plaintiff in a good-faith effort to resolve the issues raised herein above, but we were not able to agree on a resolution.
CERTIFICATE OF SERVICE I hereby certify that on June 29, 2012, I filed
electronically the foregoing with the Clerk of the Court via CM/ECF system which will notify electronically all parties. Attorney for Doe 1432: Cynthia Conlin, P.A. 1643 Hillcrest Street Orlando, Florida 32803 Tel 407-965-5519 Fax 407-545-4397 www.cynthiaconlin.com /s/ Cynthia Conlin, Esq. CYNTHIA CONLIN, ESQ. Florida Bar No. 47012 cynthiaconlin@cynthiaconlin.com

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Case 2:11-cv-00545-JES-SPC Document 260

Filed 06/29/12 Page 1 of 23 PageID 2512

Civil Action No. 2:11-cv-000545-JES-SPC

Case 2:11-cv-00545-JES-SPC Document 260

Filed 06/29/12 Page 2 of 23 PageID 2513

ARGUMENT I. Introduction On September 26, 2011, Plaintiff, NU IMAGE, INC., a

Nu Image, Inc. v. Does 1-3932, 2:11-cv-00545-JES-SPC

Doe 1432s Motion to Quash and Dismiss Page 2 of 23

Case 2:11-cv-00545-JES-SPC Document 260

Filed 06/29/12 Page 3 of 23 PageID 2514

contacts with Florida.

Furthermore, a geolocation report on

Doe 1432s Motion to Quash and Dismiss Page 3 of 23

Case 2:11-cv-00545-JES-SPC Document 260

Filed 06/29/12 Page 4 of 23 PageID 2515

Furthermore, because any further discovery requests

Nu Image, Inc. v. Does 1-3932, 2:11-cv-00545-JES-SPC

Doe 1432s Motion to Quash and Dismiss Page 4 of 23

Case 2:11-cv-00545-JES-SPC Document 260

Filed 06/29/12 Page 5 of 23 PageID 2516

defendant is not a meaningless gesture. Id.

Nu Image, Inc. v. Does 1-3932, 2:11-cv-00545-JES-SPC

Doe 1432s Motion to Quash and Dismiss Page 5 of 23

Case 2:11-cv-00545-JES-SPC Document 260

Filed 06/29/12 Page 6 of 23 PageID 2517

personal jurisdiction in this District is proper because each Defendant, without

Nu Image, Inc. v. Does 1-3932, 2:11-cv-00545-JES-SPC

Doe 1432s Motion to Quash and Dismiss Page 6 of 23

Case 2:11-cv-00545-JES-SPC Document 260

Filed 06/29/12 Page 7 of 23 PageID 2518

(S.D.Cal. Jan. 4, 2012)). This Court made a similar determination in April,

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Case 2:11-cv-00545-JES-SPC Document 260

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subpoena with reference to Doe 1432.

Furthermore, because the

Nu Image, Inc. v. Does 1-3932, 2:11-cv-00545-JES-SPC

Doe 1432s Motion to Quash and Dismiss Page 8 of 23

Case 2:11-cv-00545-JES-SPC Document 260

Filed 06/29/12 Page 9 of 23 PageID 2520

defendant . . . resides or may be found.

disclosure of Doe 1432s identifying information.

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Case 2:11-cv-00545-JES-SPC Document 260

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Nu Image, Inc. v. Does 1-3932, 2:11-cv-00545-JES-SPC

Doe 1432s Motion to Quash and Dismiss Page 10 of 23

Case 2:11-cv-00545-JES-SPC Document 260

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constitutes an undue burden. not reasonably calculated

Where a subpoena is overbroad or to lead to the discovery of

(1978) (when the purpose of a discovery request is to gather

Doe 1432s Motion to Quash and Dismiss Page 11 of 23

Case 2:11-cv-00545-JES-SPC Document 260

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used as a strong tool for leveraging settlements a tool

Doe 1432s Motion to Quash and Dismiss Page 12 of 23

Case 2:11-cv-00545-JES-SPC Document 260

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Doe 1432s Motion to Quash and Dismiss Page 13 of 23

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Filed 06/29/12 Page 14 of 23 PageID 2525