Case3:11-cv-02770-MEJ Document104

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Ira M. Siegel, Cal. State Bar No. 78142 email address: irasiegel@earthlink.net LAW OFFICES OF IRA M. SIEGEL 433 N. Camden Drive, Suite 970 Beverly Hills, California 90210-4426 Tel: 310-435-7656 Fax: 310-657-2187 Attorney for New Sensations, Inc.

UNITED STATES DISTRICT COURT Northern District of California San Francisco Division
NEW SENSATIONS, INC., v. DOES 1-1,474, Defendants. Plaintiff, No. C 11-2770 MEJ EX PARTE APPLICATION FOR AMENDED ORDER DISMISSING CASE WITHOUT PREJUDICE JUDGE: Maria-Elena James Chief Magistrate Judge

On December 15, 2011, the Court issued its Order Dismissing Case Without Prejudice (Dkt. No. 102.) Plaintiff has returned all settlements received after December 7, 2011 and has served the Order on all previously-subpoenaed ISPs pursuant to that Order. However, when discussing NEW settlements with counsel for Doe defendants, a question has arisen about whether or not Plaintiff may seek any further settlements in connection with the infringements alleged in the Complaint in view of what some say is an open-ended order in lines 19-20 of the Court's December 15, 2011 Order, namely, "[I]f Plaintiff receives or has received any settlement amount on or after December 7, Plaintiff shall immediately return the settlement funds." In an email received just yesterday (Dec. 21), counsel queried, "was the judge's order (no settlements past 12/7) binding even after the dismissal?"

Ex Parte Application for Amended Order Dismissing Case Without Prejudice-Case No. CV 11-2770 MEJ

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Obviously, counsel for Doe defendants may believe it is their duty to assert such an interpretation of this Court's Order in order to attempt to preclude any enforcement against their clients. This, of course, will lead to the litigation of an additional issue. Plaintiff believes that this issue can be avoided, with Doe defendants' counsel's being relieved of any obligation to assert what Plaintiff believes is an incorrect interpretation, with a clarification along the lines of a provision in the Court's order in OpenMind Solutions, Inc. v. Does 1-39, Case No. No. C 113311 MEJ, 2011 U.S. Dist. LEXIS 116552, 2011 WL 4715200 (N.D. Cal. Oct. 7, 2011), a case that the Court cited in its December 15, 2011 Order in the instant case. 1 In this regard, Plaintiff believes the Court's December 15, 2011 Order does not foreclose Plaintiff's seeking redress against any Doe defendant provided the Doe defendant is expressly informed that this case has been dismissed without prejudice and that no assertion is made that such Doe is being or will be sued in San Francisco unless Plaintiff believes that Doe to be a resident of this District or has a good faith belief, consistent with Federal Rule of Civil Procedure 11(b), that it can otherwise establish personal jurisdiction over that Doe in this District. As the Court expressly ordered, Plaintiff may file an amended complaint in this District with respect to any Doe defendant that Plaintiff has a reasonable basis for believing is subject to the personal jurisdiction of this Court. Plaintiff believes that implicit in the Court's Order is Plaintiff's right to bring a law suit against any Doe defendant, either fictitiously-named or by the Doe defendant's actual name learned by Plaintiff in the course of prosecuting this action, in any other district in which Plaintiff has a reasonable basis for believing that the court therein has personal jurisdiction over such Doe defendant, and further, that Plaintiff may, as in any other case, seek settlement either before or after initiating such a lawsuit. But, as indicated above, counsel have questioned this interpretation.
1

In OpenMinded this Court ordered, "8. IT IS FURTHER ORDERED that should Plaintiff engage in settlement negotiations with any Doe Defendant, it shall not assert that that Doe is being sued in San Francisco, unless Plaintiff believes that Doe to be a resident of this District or has a good faith belief, consistent with Federal Rule of Civil Procedure 11(b), that it can otherwise establish personal jurisdiction over that Doe in this District." 2

Ex Parte Application for Amended Order Dismissing Case Without Prejudice-Case No. CV 11-2770 MEJ

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As noted above, a clarification of the Court's December 15, 2011 Order will avoid litigation of its meaning. Plaintiff requests that the last sentence of the penultimate paragraph of that Order be replaced with, "However, if Plaintiff receives or has received any settlement amount on or after December 7, Plaintiff shall immediately return the settlement funds, unless such funds have been received in conformance with the following paragraph," and that the following new paragraph be added immediately following that new sentence, IT IS FURTHER ORDERED that, going forward, if Plaintiff engages in settlement negotiations with any person or other entity that was a Doe defendant in this case in connection with the infringements alleged in the Complaint, Plaintiff shall (i) inform that Doe defendant that the above-titled case has been dismissed without prejudice, and (ii) not assert that that Doe is being or will be sued in San Francisco unless Plaintiff believes that Doe to be a resident of this District or has a good faith belief, consistent with Federal Rule of Civil Procedure 11(b), that it can otherwise establish personal jurisdiction over that Doe in this District. Further in this regard, nothing in this Order shall be deemed to preclude Plaintiff from suing, consistent with the Court's ruling above regarding personal jurisdiction, any Doe defendant, either fictitiously-named or by the Doe defendant's actual name learned by Plaintiff in the course of prosecuting this action, in any district. A Proposed Amended Order Dismissing Case Without Prejudice is submitted herewith. Except as noted above, it is identical the Court's December 15, 2011 Order. In view of the foregoing, Plaintiff requests that the Court grant this Ex Parte Application and issue the Amended Order Dismissing Case Without Prejudice as submitted herewith. Respectfully submitted,

Dated: December 22, 2011

Ira M. Siegel, Cal. State Bar No. 78142 email address: irasiegel@earthlink.net LAW OFFICES OF IRA M. SIEGEL 433 N. Camden Drive, Suite 970 Beverly Hills, California 90210-4426 Tel: 310-435-7656 Fax: 310-657-2187 Attorney for Plaintiff New Sensations, Inc.

Ex Parte Application for Amended Order Dismissing Case Without Prejudice-Case No. CV 11-2770 MEJ

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Ira M. Siegel, Cal. State Bar No. 78142 email address: irasiegel@earthlink.net LAW OFFICES OF IRA M. SIEGEL 433 N. Camden Drive, Suite 970 Beverly Hills, California 90210-4426 Tel: 310-435-7656 Fax: 310-657-2187 Attorney for Plaintiff New Sensations, Inc.

UNITED STATES DISTRICT COURT Northern District of California San Francisco Division
NEW SENSATIONS, INC., v. DOES 1-1,474, Defendants. Plaintiff, No. C 11-2770 MEJ (Proposed) AMENDED ORDER DISMISSING CASE WITHOUT PREJUDICE JUDGE: Maria-Elena James Chief Magistrate Judge

This Order amends and replaces the Order issued by the Court on December 15, 2011 (Dkt. 102). On December 7, 2011, the Court ordered Plaintiff New Sensations, Inc. to conduct a search to obtain geographic information about the IP Addresses listed in its Complaint and thereafter provide the Court with the location for each IP Address. Dkt. No. 93. In addition, for all IP Addresses outside this District, the Court ordered Plaintiff to either: (a) file a voluntary dismissal without prejudice as to those Doe Defendants; or (b) show good cause as to why it has a good faith belief that jurisdiction exists and venue is proper as to each individual Doe Defendant. Id. In response, Plaintiff has now filed a request that the Court (i) allow the ISPs to comply with the subpoenas, (ii) allow Plaintiff and those potential Doe defendants who desire to settle their claims to reach settlements, and (iii) postpone any requirements that Plaintiff name and/or dismiss any potential Doe defendants until February 20, 2012. Dkt. No. 100. Plaintiffs response alleviates none of the Courts concerns. Although the Court initially granted leave for expedited
Proposed) Amended Order Dismissing (Case Without Prejudice Case No. CV 11-2770 MEJ

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discovery, in the ensuing months, multiple defendants filed motions to quash those subpoenas, raising issues such as innocence, lack of personal jurisdiction, improper joinder, and improper venue. At the same time, a check of the Courts docket disclosed that no defendant had appeared and no proofs of service had been filed. At the same time, the Court became aware of an outbreak of similar litigation in this District and around the country, and the concerns raised by some of the judges presiding over these cases. Plaintiffs most recent filing does nothing to show why his matter should not be dismissed for misjoinder and improper venue. Therefore, for the reasons stated in its December 7, 2011 Order, and having reviewed Plaintiff's response to the Order, the Court finds that the Doe Defendants named in this case are improperly joined. Accordingly, this case is hereby DISMISSED WITHOUT PREJUDICE. If Plaintiff chooses to file an amended complaint, it must do so in compliance with the Courts December 7, 2011 Order. Specifically, the Court finds that it is fundamentally unfair to require a defendant from outside this District to incur the substantial costs necessary to file a motion to quash in this District when Plaintiff has the ability to discern in advance which IP addresses are at least likely to be from this District. Accordingly, if it chooses to amend its complaint, Plaintiff must make at least a prima facie showing that the Court has personal jurisdiction over each defendant for whom Plaintiff seeks early discovery and that venue is proper. See OpenMind Solutions, Inc., 2011 WL 4715200 at *2 (granting motion for expedited discovery where, among other things, the plaintiff had alleged sufficient information to show that each defendant was subject to the jurisdiction of the court). General arguments such as those discussed in the Courts December 7 Order will not suffice. Plaintiff must make a specific showing, including geographic information about the IP Addresses in the amended complaint, as to each Doe Defendant. Any such request must include a declaration under penalty of perjury that Plaintiff has taken all reasonable steps to determine that jurisdiction and venue are proper. Said declaration shall include an explanation of all methods it utilized. Plaintiff shall serve this Order upon all subpoenaed ISPs by December 20, 2011. This Order has no effect on any settlements reached with any Doe Defendant prior to December 7, 2011. However, if Plaintiff receives or has received any settlement amount on or after December
Proposed) Amended Order Dismissing (Case Without Prejudice Case No. CV 11-2770 MEJ

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7, Plaintiff shall immediately return the settlement funds, unless such funds have been received in conformance with the following paragraph. IT IS FURTHER ORDERED that, going forward, if Plaintiff engages in settlement negotiations with any person or other entity that was a Doe defendant in this case in connection with the infringements alleged in the Complaint, Plaintiff shall (i) inform that Doe defendant that the above-titled case has been dismissed without prejudice, and (ii) not assert that that Doe is being or will be sued in San Francisco unless Plaintiff believes that Doe to be a resident of this District or has a good faith belief, consistent with Federal Rule of Civil Procedure 11(b), that it can otherwise establish personal jurisdiction over that Doe in this District. Further in this regard, nothing in this Order shall be deemed to preclude Plaintiff from suing, consistent with the Court's ruling above regarding personal jurisdiction, any Doe defendant, either fictitiouslynamed or by the Doe defendant's actual name learned by Plaintiff in the course of prosecuting this action, in any district. Any motions to quash and/or dismiss that are pending or will be filed based on the issued subpoenas are moot and shall be automatically terminated by the Clerk of Court pursuant to this Order. IT IS SO ORDERED. Dated: December ___, 2011 _______________________________ Maria-Elena James Chief United States Magistrate Judge

Proposed) Amended Order Dismissing (Case Without Prejudice Case No. CV 11-2770 MEJ