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Case 2:12-cv-00616-WBS-JFM Document 40

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Brett L. Gibbs, Esq. (SBN 251000) Of Counsel to Prenda Law Inc. 38 Miller Avenue, #263 Mill Valley, CA 94941 415-325-5900 blgibbs@wefightpiracy.com Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION

CP PRODUCTIONS, INC.,

) ) Plaintiff, ) v. ) ) JOHN DOE, ) ) ) Defendant. ) ) ____________________________________)

No. 2:12-cv-00616-WBS-JFM PLAINTIFFS NOTICE OF MOTION AND MOTION FOR AN ORDER HOLDING DEFENDANT JOHN DOE IN CIVIL CONTEMPT Judge: John F. Moulds Date/Time: September 20, 2012 at 11:00 a.m. Room/Floor: 26, 8th Floor

NOTICE OF MOTION PLEASE TAKE NOTICE that, pursuant to Local Rule 302 and the Courts Standing Order and the Courts August 14, 2012 Minute Order (ECF No. 39), on September 20, 2012 at 11:00 a.m., or as soon as the matter can be heard, in the courtroom of the Honorable Magistrate Judge John F. Moulds, located at the Sacramento Federal Courthouse, Courtroom 26, 8th Floor, 501 I Street, Sacramento, California 95814, Plaintiff CP Productions, Inc. will, and hereby does, move the Court for an order holding Defendant John Doe in civil contempt as more fully described below. Plaintiff CP Productions, Inc. presents its motion as follow: /// ///

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INTRODUCTION Plaintiff CP Productions, Inc. hereby moves this Court, pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(vii), for an order holding Defendant John Doe in civil contempt of this Court for his willful disregard of the Courts June 7, 2012 order. (ECF No. 21.) The Courts June 7, 2012 order stated that [t]he parties shall serve the initial disclosures required by Federal Rule of Civil Procedure 26(a)(1) on or before July 31, 2012. (Id. at 3.) Plaintiff served its initial disclosures on Defendant John Doe, on July 31, 2012. Defendant John Doe, however, did not serve Plaintiff with any initial disclosures and has indicated that he does not intend to do so. Therefore, the Court should order that Defendant John Doe is in civil contempt of this Courts June 7, 2012 order. BACKGROUND On March 9, 2102, Plaintiff filed its complaint against an unknown Defendant, John Doe, alleging copyright infringement and related claims of civil conspiracy and contributory infringement. (ECF No. 1.) In order to identify the unknown Defendant, Plaintiff filed a motion for discovery in order to issue subpoenas on the Defendants Internet Service Provider (ISP) and obtain the identity of the individual associated with the Internet Protocol address over which the infringement took place. (ECF No. 7.) The Court granted Plaintiffs motion for discovery on March 19, 2012. (ECF 9.)1 In compliance with the Courts order, Plaintiff issued a subpoena on John Does ISP. After John Does ISP notified its subscriber(s) regarding this matter, an individual identifying himself as John Doe filed, through attorney J. Curtis Edmonson, a motion to quash and/or for a protective order on May 24, 2012. (ECF No. 10.) Plaintiff participated in the 26(f) conference with John Does counsel, Mr. Edmonson, on May 24, 2012. (See Declaration of Brett L. Gibbs [hereinafter Gibbs Decl.] 3.) Based on the statements made in John Does Interested Party Doe Joint Status Report, the Court issued its Status (Pretrial Scheduling) Order on June 7, 2012, which set forth the mandatory scheduling dates going forward in this case. (ECF Nos. 16, 21). In that Status (Pretrial Scheduling) Order, the Court ordered that [t]he parties shall serve the initial disclosures required by Federal

The Court originally granted Plaintiffs request to seek the identifying information of John Does joint tortfeasors. (ECF No. 9.) The Court later vacated the part of its March 19, 2012 order that granted Plaintiff leave to conduct expedited discovery as to the non-party joint tortfeasors. (ECF No. 36.)
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Rule of Civil Procedure 26(a)(1) on or before July 31, 2012. (ECF No. 21.) Plaintiff supplied Defendant John Doe with its initial disclosures on July 31, 2012. (Gibbs Decl. 4.) Mr. Edmonson acknowledged receipt of those disclosures a few days later. (Gibbs Decl. 4.) Defendant John Doe has failed to provide Plaintiff with his initial disclosures. (Id. 4.) Plaintiff is still without those disclosures from Mr. Edmonsons client. LEGAL STANDARD Federal Rule of Civil Procedure 37 states that If a party . . . fails to obey an order to provide or permit discovery, the court where the action is pending may issue further just orders. They may include . . . treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Fed. R. Civ. P. 37(b)(2)(A)(vii). The Court may issue a contempt order if the Defendant (1) [ ] violated the court order, (2) beyond substantial compliance, (3) not based on a good faith and reasonable interpretation of the order, (4) by clear and convincing evidence. In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993). A district court has wide latitude in determining whether there has been a contemptuous def[ianc]e of its order. Stone v. City and County of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992) (internal quotation marks omitted). The moving party must demonstrate by clear and convincing evidence that the alleged contemnor violated a specific and definite order of the court. Id. at 856 n.9. The burden then shifts to the opposing party to demonstrate that they took every reasonable step to comply. Id. The contempt need not be willful, and there is no good faith exception to the requirement of obedience to a court order. In re Dual-Deck, 10 F.3d at 695. ARGUMENT The Court should order that Defendant John Doe is in civil contempt of this Courts June 7, 2012 Status (Pretrial Scheduling) Order. On June 7, 2012, the Court ordered that [t]he parties shall serve the initial disclosures required by Federal Rule of Civil Procedure 26(a)(1) on or before July 31, 2012. (ECF No. 21.) Plaintiff served its initial disclosures on Defendant John Doe on July 31, 2012. (Gibbs Decl. 4.) Defendant John Doe has not served Plaintiffs counsel with any initial

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disclosures by the Courts deadline or even after the Courts deadline. (Id. 4.) Defendant John Doe has, therefore, failed to comply with the Courts June 7, 2012 order. (ECF No. 21.) Attorney J. Curtis Edmonson has repeatedly represented to Plaintiff and this Court that he represents John Doethe lone Defendant in this action. On May 24, 2012, he filed a motion to quash and/or for a protective order and repeatedly indicated that he was Attorney for Defendant Doe. (ECF No. 10.) On May 28, 2012, Mr. Edmonson filed an interested party Doe joint status report and again indicated that he represents the interests of the John Doe Defendant and stated he is the Attorney for Defendant(s). (ECF No. 16.) Further, Mr. Edmonson has repeatedly maintained that he represented the John Doe Defendant in all of his correspondence with Plaintiffs counsel, and represents an Interested Party in this case. (ECF No. 16 [emphasis added]; Gibbs Decl. 2); (see also ECF No. 35 3). As a result of Mr. Edmonsons representations, the Rule 26(f) conference was held between the Plaintiff and the Defendant, represented by Mr. Edmonson on May 24, 2012. (Gibbs Decl. 3.) The 26(f) conference takes place between the parties in the action. Fed. R. Civ. P. 26(f)(1) (the parties must confer as soon as practicable) (emphasis added). Further, Mr. Edmonsons Interested Party Doe Joint Status Report ultimately shaped the course of this case. And, finally, Mr. Edmonson accepted Plaintiffs initial disclosures. (Gibbs Decl. 4.) Until Mr. Edmonsons July 12, 2012 declaration (ECF No. 33), Mr. Edmonson had repeatedly and unambiguously claimed that he represented Defendant John Doe in this case. Plaintiff requests that the Court order that Defendant John Doe, represented by Mr. Edmonson, be held in civil contempt of this Courts June 7, 2012 order. Plaintiff has demonstrated that Defendant John Doe has violated a specific and definite order of the court. Stone, 968 F.2d at 856 n.9. As a result, the Court should issue a contempt order against Defendant John Doe for violating that order. In re Dual-Deck, 10 F.3d at 695. To hold otherwise would allow Mr. Edmonson to manipulate the legal system and obtain information from Plaintiff without having to provide information in return. Mr. Edmonsons mere desire to avoid participating in this case when it is not beneficial to his client is not a basis to avoid compliance with the Courts June 7, 2012 order. ///
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CONCLUSION The Court should order that Defendant John Doe, represented by Mr. Edmonson, be held in civil contempt of this Courts June 7, 2012 order. Defendant John Doe participated with Plaintiff in the 26(f) conference and accepted Plaintiffs initial disclosures. Defendant John Doe did not provide Plaintiff with his initial disclosures by the Courts July 31, 2012 deadline. Lastly, Plaintiff requests the ability to recoup the fees and costs that it has spent in bringing this motion. Upon the Courts order, Plaintiff can give the Court a calculation of those costs and fees.

Respectfully Submitted, CP PRODUCTIONS, INC.,

By:

/s/ Brett L. Gibbs, Esq. Brett L. Gibbs, Esq. (SBN 251000) Of Counsel to Prenda Law Inc. 38 Miller Avenue, #263 Mill Valley, CA 94941 blgibbs@wefightpiracy.com Attorney for Plaintiff

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on August 15, 2012, all individuals of record who are deemed to have consented to electronic service are being served true and correct copy of the foregoing documents, and all attachments and related documents, using the Courts ECF system, in compliance with Local Rule 135.

/s/ Brett L. Gibbs

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