Case3:12-cv-01006-JCS Document60 Filed12/19/12 Page1 of 11

Pages 1 - 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE JOSEPH C. SPERO, MAGISTRATE SETH ABRAHAMS, ) ) Plaintiff, ) ) VS. ) ) HARD DRIVE PRODUCTIONS, INC., ) ) Defendant. ) ___________________________________)

No. C 12-1006 San Francisco, California Friday September 21, 2012

TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiff: By: For Defendant: By: Murphy, Pearson, Bradley & Feeney 88 Kearny Street, 10th Floor San Francisco, California 94108 Steven W. Yuen, Esquire Prenda Law Inc. 38 Miller Avenue, Suite # 263 Mill Valley, CA 94941 Brett L. Gibbs, Esquire (Of Counsel to Prenda Law Inc.)

Reported By:

Katherine Powell Sullivan, CSR #5812 Official Reporter - U.S. District Court

Katherine Powell Sullivan, CSR, RPR, CRR Official Reporter - U.S. District Court (415) 794-6659

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SEPTEMBER 21, 2012 THE CLERK:

P R O C E E D I N G S 9:34 A.M. Calling case No. C 12-1006, Seth Abrahams

versus Hard Drive Productions. MR. YUEN: Good morning, Your Honor. Steven Yuen for

plaintiff Seth Abrahams. THE COURT: MR. GIBBS: Good morning, Mr. Yuen. Good morning, Your Honor. Brett Gibbs on

behalf of defendant Hard Drive Productions. THE COURT: I decided I love these cases. You may

have gotten the wrong impression in prior hearings, but I love these cases. They always have some bizarre twist. bizarre twist. right? MR. YUEN: THE COURT: Yes. So either the two dismissal rule applies Here's the latest

We're talking about the two dismissal rule,

and, as a result, Hard Drive Productions, Inc. would not be able to sue Mr. Abrahams again; or, it doesn't apply, in which case they would be able to sue him again. If the two dismissal rule applies and they can't sue him again, then there's no reasonable apprehension to sue, and the Court lacks subject matter jurisdiction in this case. MR. GIBBS: THE COURT: That's correct. So that's a little odd twist on that Katherine Powell Sullivan, CSR, RPR, CRR Official Reporter - U.S. District Court (415) 794-6659

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piece. On the other hand -- so, while you all are arguing the opposite of that -- right? -- you want to apply the two dismissal rule, and you don't, in various papers, I think it actually works the other way around. If the two dismissal rule applies, you can't have a dec relief cause of action. Obviously, if it does apply, you can

have a dec relief cause of action, but the 12(c) motion would be denied because we'd have to proceed to adjudicate it. The question is whether it's barred. close question. And I think that's a

It really depends on this very vague identity It can depend on the

test that the Ninth Circuit has set down. evidence in the case.

I would treat it like a 12(b)(1) motion.

I mean, you all

submitted various pieces of what constitutes evidence about the identity. There may be others, but there's certainly some in Things like the letters, et

the record before the Court. cetera.

But there may be others, so I would treat it like a 12(b)(1) motion, and want to give you notice that I would treat it that way, and give you an opportunity to respond to that. Isn't that the box that we're in, that it's either barred, in which case there is no subject matter jurisdiction, or it's not, in which case -- and, also, you're in an odd position because what you will try to do to preserve the case, at this Katherine Powell Sullivan, CSR, RPR, CRR Official Reporter - U.S. District Court (415) 794-6659

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point, is to argue that there is not sufficient identity to apply the two dismissal rule, which is somewhat inconsistent. Although, I don't know that it's legally inconsistent with the underlying theory of the case. I'm not sure. I haven't

thought that far through because it wasn't required for this motion. But, you're in a better position to decide what you

want to do. Aren't I correct that we're in that legal box, Mr. Yuen; that if the two dismissal rule applies there's no subject matter jurisdiction? MR. YUEN: The Court can see it that way because,

again, if the Court finds that the two dismissal does apply, the second dismissal is a merits adjudication -THE COURT: MR. YUEN: Right. -- and there is no controversy anymore.

But, yet, the adjudication happened after my client filed the lawsuit. He's basically gotten what he wanted. Well, I understand that. But I have to

THE COURT:

sua sponte address subject matter jurisdiction at any point. MR. YUEN: THE COURT: Yes. So at the point where there was the

adjudication on the merits, which admittedly happened after this case was filed, I lost subject matter jurisdiction, hypothetically, then I have to dismiss the case without prejudice. Katherine Powell Sullivan, CSR, RPR, CRR Official Reporter - U.S. District Court (415) 794-6659

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MR. YUEN: because -THE COURT: MR. YUEN: THE COURT:

Well, it wouldn't be without prejudice

Well, your case --- we got adjudication. Well, the adjudication happened. You

didn't get it; it happened. MR. YUEN: THE COURT: Yes, it happened. But I would have to dismiss this case. I

mean, I wouldn't -- I was saying without prejudice. I don't know that it matters either way, if it's with or without prejudice, but I would dismiss this case for lack of subject matter jurisdiction, if it applies. MR. YUEN: would also -THE COURT: We would probably end up getting rid of Yes. Right?

And, conversely, the counterclaims

the counterclaims, my guess, one way or another. MR. YUEN: Because there is no controversy on the

counterclaims either. THE COURT: If you're not exposed -- well, I haven't

thought through the consequences, but my guess is that they are not going to assert the counterclaims if your case goes away. So my question is this: What do you want me to do? I

mean, now that we have this adjudication, shouldn't I just dismiss this case for lack of subject matter jurisdiction, and they'll dismiss their counterclaims? Katherine Powell Sullivan, CSR, RPR, CRR Official Reporter - U.S. District Court (415) 794-6659

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MR. YUEN:

Well, as I stated in our -- my client's

papers, we moved for judgment on the pleadings, not for subject matter jurisdiction. But I understand the Court does always

consider SMJ sua sponte at any time throughout the case. THE COURT: If I don't have subject matter

jurisdiction, I can't grant your judgment on the pleadings, right? Because I don't have jurisdiction to do it. I don't

have jurisdiction to do -- if I have no subject matter jurisdiction -- to do anything in the case, let alone represent a proof of judgment. So, I'm wondering whether or not we're in a position where you might agree today that what the Court should really do is to dismiss the case for lack of subject matter jurisdiction, if counsel for Hard Drives agrees the Court can also dismiss the counterclaims. MR. YUEN: I can't stop it. If that's what the Court is tending to do,

But my motion was just based for judgment on

the pleadings, based on -THE COURT: obviously disagree. MR. YUEN: THE COURT: Yes. So tell me if you think the Court has I'm asking whether you agree, and you

subject matter jurisdiction or not. MR. YUEN: I haven't researched that issue yet, with I've only addressed the adjudicated

respect to this motion.

Katherine Powell Sullivan, CSR, RPR, CRR Official Reporter - U.S. District Court (415) 794-6659

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position. THE COURT: MR. YUEN: THE COURT: Yes. Or issues. Well, okay. That's fine.

I think once you put some time thinking about it, you will come to the conclusion that I have, which is that it is likely that the two dismissal rule applies. I think it is likely.

The identity is not perfect, but the identity is pretty close, given the evidence before the Court. evidence, et cetera, but it's pretty close. There were clearly threats made against your client, because your client's IP address was attached to a Doe in both actions. And it seems to me that the idea that you can sue a Have to take other

Doe attached to an IP address in both actions, and then later sue the person whose IP address that is, that's, seems to me, going too far. So it's likely the two dismissal rule applies. I'm not --

I wouldn't cite it today because the people haven't briefed it the way I would like, and have addressed subject matter jurisdiction. But I think if you'll look at this, you'll

conclude that if that's true, the case is over because the Court can't adjudicate anything. So, I'm happy to do that. Do you -- you believe, I

think -- you're still arguing that two dismissal rule applies in this case. Right? Katherine Powell Sullivan, CSR, RPR, CRR Official Reporter - U.S. District Court (415) 794-6659

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MR. YUEN: THE COURT:

Yes. And your -- you might agree. Do you agree

that the two dismissal rule applies? MR. GIBBS: Yes, based on this -- we thought about

this yesterday, kind of brainstormed, and we came to the same conclusion, that lacking subject matter jurisdiction based on the two dismissal rule, if Your Honor were to find that the two dismissal rule were to apply then the Court lacks jurisdiction to subject matter jurisdiction. THE COURT: Let me just -- there are complicated

briefing and potential evidence to be taken on the question of whether the two dismissal rule applies. And so it would simplify matters if I could get a stipulation by the parties here, today, that for purposes of this action at least -- well, no, it can't be for purposes -that the parties agree that the two dismissal rule applies to bar claims by Hard Drive Productions against Seth Abrahams, that were asserted or could have been asserted against the Does in the previous two actions. Do you agree with that? MR. GIBBS: THE COURT: MR. YUEN: THE COURT: Yes, Your Honor. And you agree with that? Yes, Your Honor. Okay. So we've got a stipulation that the

two dismissal rule applies. Katherine Powell Sullivan, CSR, RPR, CRR Official Reporter - U.S. District Court (415) 794-6659

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Now, the only question is, since it applies, does that deprive the Court of subject matter jurisdiction? And I understand, Mr. Yuen, you haven't had a chance to research that or put in a brief on it. give you that opportunity. But my guess is, once you research it, if you called up counsel for the defendant and said, you know, I'm -- if you'll dismiss your part, we'll stipulate that there's no subject matter jurisdiction, you might get a willing participant on the other side. So, think about it. I would be happy to

I, mean obviously, if you conclude there is subject matter jurisdiction, that changes the thought. But if you conclude

there isn't, you may be able to both -- you may be able to get rid of the counterclaims, as well. MR. YUEN: THE COURT: Well, if -I've looked at the counterclaims. I think

they are dec relief counterclaims. MR. GIBBS: THE COURT: Based on the validity of the copyright. If there's no reasonable apprehension in

the plaintiff of a suit by the defendant, so that they can't bring their suit for dec relief, then I don't think there's any -MR. GIBBS: THE COURT: MR. GIBBS: I agree. I think the case --

Then the counterclaims go away? If there is no subject matter Katherine Powell Sullivan, CSR, RPR, CRR Official Reporter - U.S. District Court (415) 794-6659

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jurisdiction, this case is done. THE COURT: So why don't you go back, figure out what

you think on subject matter jurisdiction. If you want, in a week file a brief why there should be subject matter jurisdiction. You can respond to that brief a week later. MR. GIBBS: THE COURT: Okay. Mr. Yuen, if you would put in your brief

within one week, and then if the defendants put in their responding brief within one week after that. On the other hand, if you agree there is no subject matter jurisdiction, talk to each other and see if we can shortcut this briefing. Does that make sense? MR. YUEN: Yes, Your Honor.

There is one other issue we can address? THE COURT: MR. YUEN: Yes. We had an ENE deadline set for October 2nd.

Is the Court now inclined not to require that form of ADR? THE COURT: MR. GIBBS: I'll do whatever you guys want. We talked to the ADR neutral, and she

suggested we push that date later. THE COURT: MR. YUEN: THE COURT: Would you like that? Yes, Your Honor. I will extend the deadline for ENE by 60 Katherine Powell Sullivan, CSR, RPR, CRR Official Reporter - U.S. District Court (415) 794-6659

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days.

That will give us time to iron this out.

And if the

case is still here, we can still do an ENE. MR. YUEN: THE COURT: MR. GIBBS: THE COURT: Thank you, Your Honor. Great.

Okay?

Thank you very much.

Thank you very much, Your Honor. Thank you.

(At 9:47 a.m. the proceedings were adjourned.) -

CERTIFICATE OF REPORTER I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.

DATE:

Wednesday, December 19, 2012

______________________________________________ Katherine Powell Sullivan, CSR #5812, RPR, CRR U.S. Court Reporter

Katherine Powell Sullivan, CSR, RPR, CRR Official Reporter - U.S. District Court (415) 794-6659