Case4:10-cv-04381-CW Document40

Filed02/23/11 Page1 of 8

2 3
4

D. GILL SPERLEIN (SBN 172887) THE LAW OFFICE OF D. GILL SPERLEIN 584 Castro Street, Suite 879 San Francisco, California 94114 Telephone: (415) 404-6615 Facsimile: (415) 404-6616 gill@sperleinlaw.com Attorney for plaintiff 10 GROUP, INC.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) ) ) ) ) ) ) ) ) ) ) ) )

5 6
7

8
9

10 11
12 13

10 GROUP, INC. d/b/a TITAN MEDIA, a

CASE NO.: C-I0-4381 (CW) PLAINTIFF 10 GROUP, INC.'S OPPOSITION TO S.P.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION. No Hearing Date

California corporation, Plaintiff, vs. Does 1-138, individuals, Defendants.

14 15 16 17 18 19

20
21

PROCEDURAL SUMMARY
Plaintiff filed this action for copyright infringement against 138 Doe Defendants. The infringing activity occurred on line and the only information Plaintiff had as to who engaged in the infringing activity was the ip address used to access the Internet to engage in the activity. Thus, Plaintiff moved for leave to take early discovery, which the Court

22

23
24

25 26 27
28

permitted. (Order Granting Plaintiffs Request for Leave to Take Early Discovery, Docket No. 14.) Plaintiff served a subpoena on the Internet access provider Verizon Internet

-1PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS C-I0-4381 (CW)

Case4:10-cv-04381-CW Document40

Filed02/23/11 Page2 of 8

requesting identifying information for the subscriber who Verizon had assigned various ip
2 3
4

addresses at various dates and times. s.P. is one of the account holder's for whom Plaintiff subpoenaed records. Prior to the release of his or her information by Verizon, S.P. filed a Motion to Quash (Docket No. 22), Motion Protective Order (Docket No. 20), and this Motion to Dismiss (Docket No. 21), as well as a supporting affidavit. (Docket No. 23) The Court referred the Motion to Quash (Docket Nos. 24) and later, the Motion for Protective Order to Magistrate Judge Ryu and set the briefing schedule on the Motion to Dismiss for Lack of Jurisdiction. (Docket No. 36). Judge Ryu denied S.P.'s Motion to

5 6
7

8
9

10 11
12 13

Quash and set the briefing schedule on S.P. 's Motion for Protective Order. (Docket No. 37). SUMMARY OF ARGUMENT S.P. 's motion to dismiss for lack of jurisdiction must fail, because the motion is premature, as Plaintiff has not yet identified or named a defendant in lieu of Doe No. 10. Even if the motion were properly before the Court, Plaintiff has alleged sufficient facts to establish personal jurisdiction in this Court. Moreover, Plaintiff believes S.P. filed a

14 15 16 17 18 19

20
21

22

motion ghost written by a Florida attorney for the improper purpose of increasing Plaintiff s litigation costs in order to gain a tactical advantage and dissuade Plaintiff from pursuing its proper claims.

23
24

25 26 27 28

-2PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS C-I0-4381 (CW)

Case4:10-cv-04381-CW Document40

Filed02/23/11 Page3 of 8

2 3
4

I. S.P.'s MOTION TO DISMISS FOR LACK OF JURISDICTION IS PREMATURE. The threshold problem with S.P.' s Motion to Dismiss is that S.P. is not currently a party to this action. Plaintiff may never seek to substitute S.P. for current Doe 10

5 6
7

placeholder, because S.P. may not actually be the individual who engaged in the infringing acts. In fact, S.P. has specifically denied knowledge of the infringement. [Affidavit in

8
9

Support of Motions to Dismiss, Motion to Quash, and General Defenses, p. 3, ~2.] First, Plaintiff has not claimed that the subscriber assigned the ip address

10 11
12 13

173.49.157.78 is one and the same as the infringing individual identified as Doe No. lOin the original Complaint. Rather, Plaintiff has stated that Doe lOused the corresponding

14 15 16 17 18 19

Internet account (which we now know belonged to S.P.) to engage in the infringing activity. Indeed, S.P. by denying knowledge of the infringing activity has denied being the defendant Plaintiff seeks to pursue. After Plaintiff discovers S.P.'s identity (as the owner of the Internet account used to infringe), Plaintiff may further investigate to determine to whom S.P. provided use of his Internet account, if anyone. After this investigation,

20
21

Plaintiff may elect to name the account holder S.P. as the defendant or it may name someone entirely other than S.P. Plaintiff may even need additional discovery to

22

23
24

determine who it will name in lieu of Doe No. 10. However, the investigation cannot move forward until Plaintiff learns the identity and contact information of the account holder. Even if Plaintiff concludes after its investigation that it should name S.P. as the proper defendant, Plaintiff can only at that time fully consider and evaluate the issue of

25 26 27 28

-3PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS C-I0-4381 (CW)

Case4:10-cv-04381-CW Document40

Filed02/23/11 Page4 of 8

personal jurisdiction.
2 3
4

At that time, Plaintiff may marshal facts that support a finding of

personal jurisdiction in the Northern District of California, or it may agree that newly discovered facts require it to dismiss the case from the Northern District of California and re- file in another district. Again, Plaintiff cannot perform this analysis until Plaintiff learns the identity and contact information of the account holder and determines who should actually stand as defendant in lieu of the placeholder Doe No. 10. II. PLAINTIFF HAS PRESENTED FACTS SUFFICIENT TO ESTABLISH PERSONAL JURISDICTION AGAINST DEFENDANT Regardless of whom Plaintiff eventually elects to substitute as the true party defendant in lieu of the placeholder Doe Number 10, the facts, as they currently exist, support a finding of personal jurisdiction against the Defendant, based not on where he lives, but on his actions. "If the existence of jurisdiction turns on disputed facts, the court may resolve the challenge after a separate evidentiary hearing, or may defer ruling pending receipt at trial of evidence relevant to the jurisdictional question. If the court chooses to rule solely on

5 6
7

8
9

10 11
12 13

14 15 16 17 18 19

20
21

the basis of the complaint, affidavits, and discovery materials, 'the burden on the plaintiff is simply to make a prima facie showing of a sufficient jurisdictional basis in order to survive the jurisdictional challenge'." Costar Group, Inc. v. LoopNet, Inc., 106 F.Supp.2d 780, 783 (D. Md. 2000), citing Combs v. Bakker, 886 F.2d 673,676 (4th Cir. 1989). "In deciding whether the plaintiff has proved a prima facie case of personal jurisdiction, the district court must draw all reasonable inferences arising from the proof,

22

23
24

25 26
27

28

-4PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS C-I0-4381 (CW)

Case4:10-cv-04381-CW Document40

Filed02/23/11 PageS of 8

and resolve all factual disputes, in the plaintiff's favor." Id. at 784, citing Mylan Labs, Inc.
2 3
4

v.Akzo, N V. ,2 F.3d 59,60 (4th Cir. 1993). Plaintiff meets this standard. The Complaint, Plaintiffs Motion for Early Discovery, this Opposition, and the

5 6
7

supporting declaration of. D. Gill Sperlein sufficiently prove by a preponderance of the evidence that personal jurisdiction over Defendant is proper although only prima facie evidence is required. An individual can subject himself to personal jurisdiction engages in intentional in a state when he

8
9

10 11
12 13

acts which he knew would cause harm in the forum state.

Panavision International, L.P. v. Toppen, 141 F.3d 1316, 1321 (9th Cir. 1998)("In tort cases, jurisdiction may attach if the defendant's conduct is aimed at or has an effect in the forum state."). Copyright infringement may be characterized as an intentional tort. See, Columbia Pictures Television v. Krypton Broad. of Birmingham, Inc., 106 F.3d 284, 289 (9th Cir. 1997), overruled on other grounds by Feltner v. Columbia Pictures Television, 523 U.S. 340,140 L. Ed. 2d 438,118 S. Ct. 1279 (1998); Janel Russell Designs, Inc. v. Mendelson
& Assocs., 114 F. Supp. 2d 856, 862 (D. Minn. 2000).

14 15 16 17 18 19

20
21

22

The Effects Doctrine holds that personal jurisdiction

can be based on "(1)

23
24

intentional actions (2) expressly aimed at the forum state (3) causing harm, the brunt of which is suffered -- and which the defendant knows is likely to be suffered -- in the forum state." Toppen 141 F.3d at 1321 (quoting Core-Vent Corp. v. Nobel Industries AB, 11 F.3d

25 26 27 28

-5PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS C-I0-4381 (CW)

Case4:10-cv-04381-CW Document40

Filed02/23/11 Page6 of 8

1482, 1486 (9th Cir. 1993). See also, 10 Group, Inc. v. Pivitol, Inc., 2004 U.S. Dist. LEXIS
2 3
4

6673*16 (N.D. Cal.}. In Toeppen, the Ninth Circuit specifically stated that, "[b ]ecause the defendant's tortuous behavior was knowingly aimed at a company whose principal place of business was in California, and whose industry -- the entertainment industry -- was primarily located in California, defendant's conduct was likely to have an effect in the forum state. As Defendant knew his actions were likely to cause harm in California, under the "effects test," the purposeful availment requirement necessary for specific, personal jurisdiction was satisfied." Toeppen at 1322. Courts of this district have applied the same principle in 3DO Co. v. Poptop Software, Inc., 1998 U.S. Dist.

5 6
7

8
9

10 11
12 13

the copyright infringement context.

14 15 16 17 18 19

Lexis 21281(N.D.Cal. Oct. 27, 1998), citing Toeppen, 141 F3d at 1322; 10 Group, Inc. v. Pivitol, Inc., 2004

us. Dist. LEXIS

6673*16 (N.D. Cal)

Defendant Doe 10 infringed 10 Group's work110 Degrees in Tucson. (Complaint at ~31.) The registration for the work on file with the U. S. Copyright office identifies 10 Group, Inc. as the owner of the work and identifies 10 Group's San Francisco Address. [Sperlein Declaration at ~8, Exhibit D.] 17 USC §205(c) ("Recordation of a document in the Copyright Office gives all persons constructive notice of the facts stated in the recorded document); See, Moldo v. Matsco, Inc. (In re Cybernetic Servs.), 239 B.R. 917, 922 (B.A.P. 9th Cir. 1999). Thus, the infringer had knowledge that his intentional acts would cause harm in this district, fulfilling the requirements of the Effects Test. The

20
21

22

23
24

25 26 27 28

infringer, whether S.P. or someone else to whom S.P. provided Internet access, knew or should have known his infringing actions would cause harm to 10 Group, Inc. in the
-6PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS C-I0-4381 (CW)

Case4:10-cv-04381-CW Document40

Filed02/23/11 Page? of 8

Northern District of California and therefore can expect to defend his or her actions in this
2 3
4

district.

III.

S.P.'s Motion for Protective Order Should Fail because S.P. Filed the Motion for an Improper Purpose.

5 6
7

For the reasons stated above S.P.'s motion must fail, however, even if the motion were valid and proper on its face, it would still have to fail because it was filed for an improper purpose - a purpose that warrants sanctions against S.P. and the attorney from whom he or she obtained the ill-advised filings. Although S.P. represents to the Court that s/he appears pro per, Florida attorney Graham Syfert drafted all of the filings and sold them to S.P. for $19.99. s/he paid for. (Sperlein Declaration in Support of Opposition at ~~ 3 and 4.) Recently, many copyright holders, frustrated by the increasing copying and S.P. got what

8
9

10 11
12 13

14 15 16 17 18 19

distribution of their works through peer-to-peer

(P2P) technologies, have commenced

bringing claims against those individuals directly responsible for placing those works on the P2P networks. In response, Mr. Syfert commenced selling ghost-written motions to individuals accused of P2P piracy. The practice of providing motions to individuals for use in a

20
21

22

23
24

specific case without establishing an attorney client relationship creates its own ethical difficulties. However, the truly troubling aspect of Mr. Syfert's actions is that he knows

25 26 27 28

and admits that the motions are meritless and nonetheless sells them and encourages his customers? / clients? to file them nonetheless. (Id. at ~~5 and 6) Apparently, he believes it

is entirely proper to sell the motions to individuals with whom he has no attorney client

-7PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS C-I0-4381 (CW)

Case4:10-cv-04381-CW Document40

Filed02/23/11 Page8 of 8

relationship and to counsel those individuals to file the motions for the sole purpose of
2 3
4

increasing copyright holder's litigation costs.

He has public ally admitted that "every

single motion to quash has failed" but that they "create more work for the people suing you, and therefore it will take more effort to reveal your identity." (Id.) Based on the

5 6
7

totally meritless nature of the Syfert-drafted Motion to Dismiss and Motion for Protective Order, which are sold as part of a package, it is apparent that these motions are designed with the same purpose in mind, i.e. simply to frustrate plaintiffs. The Court should deny S.P. 's motion for protective order, not only because the motion has no merit, which it clearly does not, but also because S.P. brought the motion in the first instance simply to create additional work for Plaintiff and its attorneys - a clearly improper purpose. Plaintiff will seek sanctions against S.P. and Graham Syfert for the

8
9

10 11
12 13

14 15 16 17 18 19

unlawful filing of the motion. CONCLUSION S.P. 's motion is premature and in any event fails to overcome Plaintiffs prima facia evidence establishing personal jurisdiction. with the sole intention of increasing Plaintiffs deny S.P.' s Motion to Dismiss. Dated: February 22, 2011 Respectfully submitted, lsi D. Gill Sperlein D. GILL SPERLEIN Attorney for Plaintiff 10 GROUP, INC. Moreover, S.P. filed a group of motions litigation costs. Thus, the Court should

20
21

22

23
24

25 26 27 28

-8PLAINTIFF'S OPPOSITION TO MOTION TO DISMISS C-I0-4381 (CW)

Sign up to vote on this title
UsefulNot useful