12345678910111213141516171819202122232425262728Brett L. Gibbs, Esq. (SBN 251000)Of Counsel to Prenda Law Inc.21 Locust Avenue, Suite #1Mill Valley, CA 94941415-325-5900 blgibbs@wefightpiracy.com
Attorney for Plaintiff
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIAAF HOLDINGS LLC, )
No. 4:12-cv-2049-PJH
)Plaintiff, )v. ))
PLAINTIFF’S RESPONSE TO
JOHN DOE AND JOSH HATFIELD, )
ELECTRONIC FREEDOM
)
FOUNDATION’S
MOTION FOR
Defendants. )
LEAVE
TO FILE BRIEF AMICUS
)
CURIAE
____________________________________) Non-party Electronic Frontier Foundation (“EFF”) has filed a motion for leave to file an
amicus curiae
brief in support of Defendant Josh Hatfield’s motion to dismiss Plaintiff’s firstamended complaint. (ECF No. 18.) The EFF is a special interest group whose founding principlesinclude the elimination of copyrights. Purporting to speak on behalf of “Cyberspace,” a co-founder of the EFF (who presently serves on its Board of Directors) has warned the “Governments of theIndustrial World” that “[y]our legal concepts of property, expression, identity, movement, andcontext do not apply to us.” John Perry Barlow,
A Declaration of the Independence of Cyberspace
(Feb. 8, 1996),
available at
https://projects.eff.org/~barlow/Declaration-Final.html (last checked July6, 2012). The EFF appears in this action to use this Court as a platform to advance its politicalagenda, generate publicity and secure donations.Further, it is readily apparent to even a casual observer that the EFF has not undertaken theeffort to become familiar with the unique factual underpinnings of the present case. The EFF’smotion for leave to file and accompanying brief are strikingly similar to documents that the EFF is
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2RESPONSE TO EFF’S MOTION FOR LEAVE TO FILE AMICUS CURIAE CASE NO. 4:12-cv-2049-PJH
attempting to file in an action pending in the United States District Court for the Southern District of New York.
See Liberty Media Holdings, LLC v. Cary Tabora and Schuyler Whetstone
, No. 12-2234(S.D. N.Y. June 15, 2012), ECF No. 20. By way of example, the EFF’s motion for leave to file inthis case still contains references to the plaintiff in the
Liberty Media Holdings
case. (ECF No. 18 at3) (“EFF files this Motion in advance of the due date for AFH’s opposition to Defendant Hatfield’smotion, in order to afford
LMH
an opportunity to respond.”) (emphasis added). Because negligenceactions are intensely fact-specific, this Court can be assured that the EFF’s xeroxed brief will onlyserve to obscure the issues and delay this action. Because
the EFF fails to demonstrate that its proposed motion fits the limited circumstances which may make participation by an
amicus curiae
appropriate, the Court should deny the EFF’s motion for leave to file as one. Federal courts properlydeny the EFF’s attempts to interfere with district court level litigation.
See, e.g., Jones Day v. Blockshopper LLC
, No. 08-4572, 2008 WL 4925644, at *6 (N.D. Ill. Nov. 13, 2008) (denying theEFF’s motion for leave to file an
amicus curiae
brief).
DISCUSSION
The Court retains full discretion over whether to allow or deny the participation of an
amicuscuriae
, and should carefully consider the prospect of allowing a special interest group to participatehere, especially in litigation at the district court level. “The term ‘amicus curiae’ means friend of thecourt, not friend of a party.”
Long v. Coast Resorts, Inc.
, 49 F. Supp. 2d 1177, 1178 (D. Nev. 1999)(denying leave to file an
amicus curiae
brief). Courts deny motions for leave to file amicus briefswhen they determine that the briefs are filed in support of one of the parties or are prejudicial to theother party.
Leigh v. Engle
, 535 F. Supp. 418, 420 (N.D. Ill Jan. 22, 1982) (“Indeed, if the proffer comes from an individual with a partisan, rather than impartial view, the motion for leave to file anamicus brief is to be denied, in keeping with the principle that an amicus must be a friend of thecourt and not a friend of a party to the cause.”);
Strougo v. Scudder, Stevens & Clark, Inc.
, 1997 WL473566 (S.D.N.Y. Aug. 18, 1997) (
citing Vulcan Society of New York City Fire Dep’t, Inc. v. Civil Service Comm’n
, 490 F.2d 387, 391 (2d Cir. 1973).The claim that the EFF would like to challenge is a negligence claim, which are necessarilyfact-specific. At the district court level, when issues of fact predominate,
amicus
briefs are highly
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3RESPONSE TO EFF’S MOTION FOR LEAVE TO FILE AMICUS CURIAE CASE NO. 4:12-cv-2049-PJH
disfavored.
Leigh v. Engle
, 535 F. Supp. 418, 422 (N.D. Ill. 1982) (emphasizing that intervention inthis manner in a trial court has never been favored in Anglo-American law and that “a district court,a forum whose principal function is resolving issues of fact, should go slow in accepting an
amicus
brief unless it has the joint consent of the parties.”). The EFF has not secured the joint consent of the parties. This Court should “go slow.”The three limited circumstances in which it is appropriate to grant leave to file an
amicuscuriae
brief are:1.
[W]hen a party is not represented competently or is not represented atall,2.
[W]hen the
amicus
has an interest in some other case that may beaffected by the decision in the present case, or 3.
[W]hen the
amicus
has unique information or perspective that can helpthe court beyond the help that the lawyers for the parties are able to provide.
Community Ass’n for Restor. v. Deruyter Bros. Dairy,
54 F.Supp. 974, 975 (E.D. Wash. 1999);
seealso Ryan v. Commodity Future Trading Com’n
, 125 F. 3d 1062, 1063 (7th Cir. 1997) (citing
Miller-Wohl Co. v. Commissioner of Labor & Industry
, 694 F.2d 203 (9th Cir. 1982);
In re Heath
, 331 BR 424, 430 (9th Cir. 2005). If an
amicus curiae
brief does not meet any of the above criteria it should be denied.
Community Ass’n for Restor.,
54 F.Supp. at 975 (citing
Northern Sec. Co. v. United States
, 191 U.S. 555, 556 (1903)). The EFF has not demonstrated that its request for leave to file fitsany of the three limited circumstances in which
amicus curiae
briefs are permitted.
I.
Mr. Hatfield is Represented by Competent Counsel
Mr. Hatfield is represented by attorney Nicholas Ranallo. (
See
ECF No. 6.) Attorney Ranallofrequently represents defendants sued by copyright holders in BitTorrent-related lawsuits.
See e.g.
,
CP Productions, Inc. v. John Doe
, No. 12-00616 (E.D. Cal. 2012);
Pacific Century International, LTD. v. John Doe
, No. 11-3479 (E.D. Cal. 2011); Hard Drive Productions, LLC v. Does 1-87, No.11-2333 (N.D. Cal. 2011);
AF Holdings LLC v. John Doe and John Botson
, No. 12-2048 (N.D. Cal.2012). Although Plaintiff would respectfully argue that Mr. Hatfield’s arguments are contrary tocontrolling law, there cannot be any serious question as to Mr. Ranallo’s competence.
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