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Motion: Patrick Collins Inc. vs. John Does 1-26

Motion: Patrick Collins Inc. vs. John Does 1-26

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Published by: Nick on Sep 16, 2011
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01/16/2013

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO
PATRICK COLLINS, INC.,Plaintiff,vs. 11-CV-01656-CMA-MJWDOES 1 - 26 Honorable Christine M. ArguelloDefendants.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFDEFENDANT J. DOE NO. 21’s OMNIBUS MOTION TO: (1) SEVER DEFENDANTS FOR IMPROPER JOINDER, (2) EMERGENCY STAYTHE PROCEEDING BASED ON RESOLUTION OF MISJOINDER ISSUE, (3)TO QUASH SUBPOENA OR, IN THE ALTERNATIVE, (4)FOR PROTECTIVE ORDER 
Defendant, J. Doe No. 21 (“Defendant”), respectfully submits this Memorandum of Points and Authorities in support of Defendant’s Motion requesting that this Court (1) sever Defendants based on misjoinder, (2) Emeregency Stay the Proceeding Based on Resolution of Misjoinder of Doe Defendants, and (3) Quash the Bubpoena served upon Defendant’s InternetService Provider (“ISP”), Qwest, on August 11, 2011.Alternatively, if the Court denies the motion to quash, Defendant requests that, pursuantto Rule 26(c) of the Federal Rules of Civil Procedure, the Court enter a Protective Order  prohibiting any party from publicly disclosing any information relating to Defendant thatPlaintiff obtains via the subpoena, including requiring any pleadings filed in this action that
Case 1:11-cv-01656-CMA-MJW Document 9-1 Filed 09/02/11 USDC Colorado Page 1 of 23
 
 
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 contain Defendant’s confidential information to be redacted and filed under seal to prevent public disclosure.
FACTUAL BACKGROUND
 1.
 
On August 11, 2011, this Court issued an Order (Doc. No. 7) permitting Plaintiff to serve a Rule 45 subpoena on each defendant’s internet service provider (ISP) seeking personalidentifying information regarding each defendant – i.e. each defendant’s true name, address,telephone number, e-mail address, and media access controls address.2.
 
On August 11, 2011, Defendant’s ISP, Qwest, was served with a subpoena issuedfrom this Court and served in Denver, Colorado, that demanded that by September 2, 2011,Qwest produce to Plaintiff at Plaintiff’s counsel’s office in Colorado, the personal identifyinginformation regarding Defendant in connection with Plaintiff’s claim that Defendant allegedlyillegally downloaded one pornographic film entitled
Gangbanger 
.3.
 
Qwest sent written notice to Defendant on August 16, 2011 via US Mail.4.
 
Qwest’s August 11, 2011 letter stated that Qwest would provide the requestedinformation to Plaintiff by September 2, 2011. Qwest’s letter further advised Defendant that if Defendant had any objections to the subpoena, Defendant needed to file those objections withthis Court prior to September 2, 2011.
INTRODUCTION
The instant case is part of a systemic effort to build a business model based on weak allegations of copyright infringement and questionable use of the legal system to quickly wrest profit generating settlements from Defendants cowed by the high cost and potential liability of such litigation. Various Courts have skeptically described these for-profit copyright lawsuits,however, Plaintiff finds the Chief Justice of the U.S. District Court for the District of NevadaJudge Robert Hunt’s analysis to be especially relevant when describing such suits as merely
Case 1:11-cv-01656-CMA-MJW Document 9-1 Filed 09/02/11 USDC Colorado Page 2 of 23
 
 
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 Plaintiff’s “attempt[] to create a cottage industry of filing copyright claims, making large claimsfor damages and then settling claims for pennies on the dollar.”
Democratic Underground 
, No.2:11-cv-01356 (D. Nev. Apr. 14, 2011), Dkt. 94. Other Courts have been even more direct,excoriating “plaintiffs who file cases with extremely weak infringement positions in order tosettle for less than the cost of defense and have no intention of taking the case to trial. Such a practice is an abuse of the judicial system and threatens the integrity of and respect for thecourts.” Mem. Op. and Order at 5,
 Raylon LLC v. EZ Tag Corp
., No. 6:09-cv-00357 (E.D. Tex.Mar. 9, 2011), Dkt. 115.In perhaps the most explicit demonstration and subsequent repudiation of Plaintiff’s for  profit litigation model, Judge Beeler of the U.S. District Court for The Northern District of California, directly rebuked Plaintiff Patrick Collins, Inc., (the same Plaintiff as the instantaction) in an identical BitTorrent case involving 188 Doe defendants stating in response to anorder to show cause:[t]he court has no confidence that Plaintiff has been diligent in moving to nameand serve defendants, despite its (unsworn) claims to the contrary. For example,Plaintiff’s counsel states that he has filed ten other copyright cases involving alarge number of Doe defendants. ECF No. 17 at 4. The court reviewed the docketsand noted that the plaintiffs in these cases have not filed proof of service for evena single defendant even though a number of defendants have been identified anddismissed after settling with the plaintiffs.
See, e.g., Media Products, Inc. DBA
 
 Devil’s Film v. Does 1-1257 
, Case No. CV 10-04471 RS (complaint filed onOctober 4, 2010 and no proof of service filed for any defendant as of July 29,2011, but four Doe defendants have been dismissed after settling). This patternholds true in this case too. Here, Plaintiff has not identified or served any of the1,219 Doe Defendants. However, on May 10, 2011, Plaintiff filed a stipulationdismissing with prejudice a Doe Defendant who settled with Plaintiff. ECF No. 13at 1. And, on August 18, 2011, Plaintiff filed a stipulation dismissing with prejudice more than thirty Doe Defendants who setttled. ECF No. at 1-2. The plaintiffs in these cases appear content to force settlements without incurring anyof the burdens involved in proving their cases. And, while the courts favor settlements, “filing one mass action in order to identify hundreds of doedefendants through pre-service discovery and facilitate mass settlement, is not
Case 1:11-cv-01656-CMA-MJW Document 9-1 Filed 09/02/11 USDC Colorado Page 3 of 23

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