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Case 1:12-mc-00150-ESH-AK Document 17 Filed 05/17/12 Page 1 of 10

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MILLENNIUM TGA, INC.,



Plaintiff,



v.


JOHN DOE,


_______________________________________)


Defendant.












)
) Case No.: 1:12-mc-00150-ESH-AK


)





) Judge : Hon. Ellen S. Huvelle
)
) Magistrate Judge: Hon. Alan Kay
)
)
)

[Case pending in the U.S. District Court
for the Southern District of Texas,

) No. 4:11-cv-4501]

PLAINTIFF’S RESPONSE TO COMCAST CABLE COMMUNICATIONS, LLC’S

OBJECTIONS TO MAGISTRATE JUDGE’S RULING





Non-Party Comcast Cable Communications, LLC (“Respondent”) filed an objection to

the order issued by the Honorable Magistrate Judge Alan Kay on April 18, 2012, granting

Plaintiff Millennium TGA, Inc.’s (“Petitioner”) motion to compel Respondent’s compliance with

subpoena. (ECF No. 16.) The Court should deny Respondent’s objections and uphold the

Magistrate Judge’s order for the reasons described herein.

I.

PRELIMINARY STATEMENT

On December 20, 2011, Petitioner filed a lawsuit in the United States District Court for

the Southern District of Texas against a single John Doe defendant. Millennium TGA, Inc. v.

John Doe, No. 11-4501 (S.D. Tex. Dec. 20, 2011), ECF No. 1. Petitioner used the pseudonym

“John Doe” because it does not know the defendant’s actual identity. Instead, Petitioner knows

the IP address that John Doe was using while infringing on its copyrighted works. John Doe was

pinpointed by Petitioner’s agents as a serial infringer of Petitioner’s copyrighted works.

Petitioner’s agents also identified several individuals whose infringing activities were

materially aided by John Doe’s distribution of Petitioner’s copyrighted work to them via a file

Case 1:12-mc-00150-ESH-AK Document 17 Filed 05/17/12 Page 2 of 10

transfer protocol referred to as BitTorrent. Id. As with John Doe, Petitioner only knows these

individuals by their IP addresses. Id., ECF No. 1-2. Petitioner applied for and received leave

from the court in the underlying action to serve narrowly-tailored subscriber identification

subpoenas on the ISPs who provide Internet service to John Doe and his joint tortfeasors. Id.,

ECF Nos. 2, 6. Petitioner seeks damages against John Doe and any later-named parties on a joint

and several basis for the harm caused by the infringing activities described in Petitioner’s

complaint. Id., ECF No. 1. In order to prove contributory infringement, Petitioner will need to

prove a direct infringement by each of John Doe’s joint tortfeasors. Further, Petitioner will need

to establish the damages caused by John Doe and his joint tortfeasors. For these reasons, the

identifying information of John Does’ joint tortfeasors is essential to Petitioner’s fight against the

rampant infringement of its works.

II.

ARGUMENT

Respondent’s objection to Magistrate Judge Alan Kay’s April 18, 2012 order should be

denied. Part A states the standard of review for Respondent’s objections. Part B argues that

Magistrate Judge Kay did not err in finding that Respondent’s personal jurisdiction arguments

were not at issue at this stage of the proceedings. Part C argues that Magistrate Judge Kay did

not err in finding Respondent’s misjoinder arguments were not at issue at this stage of the

proceedings. Part D argues that the Magistrate Judge did not err by declining to reassign this

matter to the Honorable Judge Robert Wilkins.

A. Standard of Review

This action was previously referred to the Magistrate Judge pursuant to Federal and Local

Rules, which permit a magistrate judge to decide certain non-dispositive matters. 28 U.S.C. §

636(b)(1)(A); Fed. R. Civ. P. 72(a); Local Rule 72.2. Pursuant to the rules, this Court will uphold



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Case 1:12-mc-00150-ESH-AK Document 17 Filed 05/17/12 Page 3 of 10

a magistrate judge decision unless it was “clearly erroneous or contrary to law.” 28 U.S.C. §

636(b)(1)(A); Fed. R. Civ. P. 72(a); Local Rule 72.2(c); see also Graham v. Mukasey, 608

F.Supp.2d 50, 52 (D.D.C. 2009) (“A magistrate judge’s decision is entitled to great deference

unless it is clearly erroneous or contrary to law, ‘that is, if on the entire evidence the court is left

with the definite and firm conviction that a mistake has been committed.’”) (quoting Donohoe v.

Bonneville, 602 F.Supp.2d 1, 2 (D.D.C.2009)).

B. Magistrate Judge Kay did Not Err in Finding Respondent’s Personal Jurisdiction

Arguments are Not at Issue at this Stage of the Proceedings

Respondent argues that the Magistrate “Judge erred by failing to consider the personal

jurisdiction defenses raised by [Respondent] on behalf of its subscribers.” (ECF No. 16 at 5.) As

a non-party subpoena recipient, however, Respondent lacks standing to raise personal

jurisdiction defenses on behalf of its subscribers. Respondent only has standing to move to quash

or modify Plaintiff’s subpoena. See Fed. R. Civ. P. 45(c); (see also ECF No. 15 at 4-5) (“The

Court notes that these defenses (lack of jurisdiction, improper joinder) are not at issue at this

stage of the proceedings nor is it appropriate for Comcast, a nonparty, to raise such these

defenses on behalf of its subscribers.”) (emphasis added). Personal jurisdiction is a defense that

can only be raised (or waived) by an individual defendant. Caribbean Broadcasting System v.

Cable & Wireless, 148 F.3d 1080, 1090 (D.C. Cir. 1998) (“lack of personal jurisdiction is an

affirmative defense and so must be raised by the defendant”). Respondent’s attempt to usurp the

litigation prerogative of its subscribers is a gross due process violation. The Magistrate Judge

correctly ruled that Respondent’s attempt to raise waivable defenses on behalf of their

subscribers was inappropriate.

Further, Respondent’s personal jurisdiction arguments are premature as Petitioner is not

required to establish, plead, or even mention personal jurisdiction at this early stage of the



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litigation. Id. (“To be sure, [the plaintiff] had no obligation to make specific allegations relevant

to personal jurisdiction in its complaint . . . [Plaintiff’s] obligation to make some allegations

relating to personal jurisdiction arose, therefore, only after [the defendant] had filed its motion to

dismiss and supporting affidavit.”) The authority cited by Respondent for the opposite

proposition (ECF No. 16 at 6) is not applicable here. In that case, the plaintiff was pursuing a

default judgment against the defendant. System Pipe & Supply, Inc. v. M/V VIKTOR

KURNTOVSKIY, 242 F.3d 322 (5th Cir. 2001). At the default judgment stage, a district court

“has an affirmative duty” to determine whether it has jurisdiction over the “the subject matter

and the parties.” Id., 242 F.3d at 324. Otherwise, a district court errs by engaging in a sua sponte

personal jurisdiction inquiry. See Caribbean Broadcasting System, 148 F.3d at 1090.

It bears mentioning that the merits of Respondent’s personal jurisdiction arguments are

demonstrably erroneous. Respondent argues that “[t]he vast majority of the subscribers whose

personal information is sought in the Subpoena are not even subject to either this Court’s or the

underlying court’s jurisdiction.” (ECF No. 16 at 5.) Respondent appears to fundamentally

misunderstand the nature of the underlying action. Petitioner brought the underlying action

against a single defendant. Millennium TGA, Inc. v. John Doe, No. 11-4501 (S.D. Tex. Dec. 20,

2011), ECF No. 1. A personal jurisdiction analysis is only relevant with respect to that lone

defendant. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Respondent’s

arguments regarding whether or not the underlying court has personal jurisdiction over “the vast

majority of the subscribers,” therefore, has no relevance to whether or not personal jurisdiction

will be proper once the lone defendant is named and served. Respondent does not dispute the

underlying court’s jurisdiction over John Doe. (See generally ECF No. 16.)



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Case 1:12-mc-00150-ESH-AK Document 17 Filed 05/17/12 Page 5 of 10

The case authority cited to by Respondent does not demonstrate that Magistrate Judge

Kay was “clearly erroneous or contrary to law” in his decision. It only demonstrates that other

courts have come to different conclusions when presented with cases involving different

procedural contexts, different pleadings, different facts, different parties, and different counsel.

For example, Respondent argues that “Magistrate Judge Kay conspicuously ignores the recent

decision by Judge Wilkins” in Nu Image, Inc. v. Does 1-23,322 799 F.Supp.2d 34 (D.D.C. 2011).

(ECF No. 16 at 2.) The Nu Image decision, however, involved an order to show cause as to why

venue and joinder of 23,322 putative defendants was proper. Id. at 36. None of these factors are

present here—this case involves a motion to compel where an Internet service provider has

challenged the court’s jurisdiction over non-party subscribers in a case brought against a single

defendant who both sides agree is located in the underlying court’s jurisdiction. Magistrate Judge

Kay did not “conspicuously ignore” the Nu Image decision, as the Respondents suggest, but

instead presumably found it to be inapplicable to the facts and circumstances of the present

action. Respondent cites to no authority that established clear error or contrary law in regards to

the order that requires the Court to overturn the Magistrate Judge’s decision.

C. Magistrate Judge Kay did Not Err in Finding Respondent’s Misjoinder Arguments

were Not at Issue at this Stage of the Proceedings

Respondent argues that Magistrate Judge Kay “erred by failing to address the misjoinder

of the Doe defendant and alleged co-conspirators.” (ECF No. 16 at 11.) The Court did expressly

address misjoinder, however, and found that it was improper for Respondent to raise this defense

on behalf of its subscribers. (ECF No. 15 at 4-5) (“The Court notes that these defenses (lack of

jurisdiction, improper joinder) are not at issue at this stage of the proceedings nor is it

appropriate for Comcast, a nonparty, to raise such these defenses on behalf of its subscribers.”)

(emphasis added). Further, Respondent’s misjoinder arguments are rather peculiar, given that



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Case 1:12-mc-00150-ESH-AK Document 17 Filed 05/17/12 Page 6 of 10

Petitioner brought the underlying action against a single defendant. Millennium TGA, Inc. v.

John Doe, No. 11-4501 (S.D. Tex. Dec. 20, 2011), ECF No. 1. It is axiomatic to say that a single

defendant cannot be misjoined with himself. Every case cited by Respondent in support of its

misjoinder argument involves an action brought against multiple defendants. (ECF No. 16 at 11-

16.) Petitioner is not aware of, and Respondents do not cite to, a single case for the proposition

that a single defendant can be improperly joined in a case. (See generally ECF No. 16.)



Even if the underlying action had been brought against multiple defendants, Respondent

recognizes that courts in this jurisdiction have held that it is premature at the pleading stage of

litigation to consider misjoinder arguments. (ECF No. 16 at 14) (citing Call of the Wild Movie,

LLC v. Does 1–1062, 770 F.Supp.2d 332, 343 (D.D.C.2011)). The overwhelming majority of

district courts nationwide agree with this proposition. First Time Videos, LLC, v. Does 1-76, 11-

3831 (N.D. Ill. (Aug. 16, 2011), ECF No. 38 at *10 (“[I]n any event, findings of misjoinder in

such cases are rare. The overwhelming majority of courts have denied as premature motions to

sever prior to discovery”); AF Holdings, LLC v. Does 1-162, No. 11-23036 (S.D. Fla. Jan. 12,

2012), ECF No. 22 at *7 (“courts in other cases involving file sharing through BitTorrent

protocol have held that joinder is appropriate.”); Imperial Enterprises, Inc. v. Does 1-3,145, No.

11-0529 (D.D.C. Aug. 30, 2011), ECF No. 43 at *3 (“With regard to the putative defendants’

misjoinder argument, the undersigned agrees for several reasons with the other members of this

Court that the standard for permissive joinder under Federal Rule of Civil Procedure 20(a)(2) has

been satisfied.”); MCGIP, LLC v. Does 1-18, No. 11-1495 (N.D. Cal. June 2, 2011), ECF No. 14

at *2 (“at this stage in the litigation, when discovery is underway only to learn identifying facts

necessary to permit service on Doe defendants, joinder of unknown parties identified only by IP

addresses is proper.”).



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Case 1:12-mc-00150-ESH-AK Document 17 Filed 05/17/12 Page 7 of 10



Perhaps understanding that its substantive arguments are not a basis for granting its

requested form of relief, Respondent resorts to ad hominem attacks against Petitioner’s counsel.

(ECF No. 16 at 15-16.) Respondent claims that Petitioner’s counsel has never served a defendant

in any of its cases. (Id. at 15.) Respondent does not attempt to establish a conceptual link

between Federal Rule of Civil Procedure 45 and its attack on Petitioner’s counsel. Further,

Respondent’s claim is wildly inaccurate. Petitioner’s counsel has named several defendants in

individual actions such as the instant case. See e.g., Achte/Neunte Boll Kino v. Michael Famula,

No. 11-0903 (N.D. Ill. Feb. 9, 2011); Achte/Neunte Boll Kino v. Daniel Novello, No. 11-0898

(N.D. Ill Feb. 9, 2011); Hard Drive Productions, Inc. v. Syed Ahmed, No. 11-2828 (N.D. Ill. Oct.

25 2011); Boy Racer, Inc. v. Philip Williamson, 11-cv-3072 (E.D. Cal. Dec. 12, 2011); First

Time Videos, LLC v. Mike Younger, No. 11-3837 (N.D. Ill. Dec. 30, 2011); Millennium TGA,

Inc. v. Tyree Paschall, No. 12-792 (S.D. Ca. Apr. 2, 2012); Hard Drive Productions, Inc. v.

Gessler Hernandez, No. 11-22206 (S.D. Fla. Apr. 9, 2012); First Time Videos LLC v. William

Meyer, Jr., No. 11-690 (E.D. Va. Apr. 16, 2012); First Time Videos LLC v. Christopher Plotts,

No. 11-8336 (N.D. Ill. Apr. 17, 2012); Hard Drive Productions, Inc. v. John Doe and Matthew

Rinkenberger, No. 12-1053 (C.D. Ill. Apr. 24, 2012); AF Holdings LLC v. John Doe and John

Botson, No. 12-2048 (N.D. Cal. Apr. 24, 2012); AF Holdings LLC v. John Doe and Josh

Hatfield, No. 12-2049 (N.D. Cal. Apr. 24, 2012); AF Holdings LLC v. John Doe and Francisco

Rivas, No. 11-3076 (E.D. Cal. Apr. 25, 2012). Petitioner is at a loss to understand the relevance

of Respondent’s statements regarding the number of individuals named and served by its

counsel’s law firm.







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Case 1:12-mc-00150-ESH-AK Document 17 Filed 05/17/12 Page 8 of 10

D. Magistrate Judge Kay did Not Err by Declining to Reassign this Matter to Judge

Robert L. Wilkins

Respondent argues that Magistrate Judge Kay erred by “failing to reassign this matter to

Judge Robert L. Wilkins.” (ECF No. 16 at 16.) Respondent argues that Petitioner attempted to

forum shop by dismissing a case similar to the present one before bringing this one. (Id.)

Respondent provides no evidence for this claim, and instead states that Petitioner must have

dropped the earlier case because of Judge Wilkins decision in Nu Image, 799 F.Supp.2d 34. (Id.)

Plaintiff’s counsel has witnessed Respondent accuse copyright holders of forum shopping with

respect to cases filed in state and federal courts nationwide. Indeed, Plaintiff’s counsel has yet to

discover a jurisdiction which Respondent does not apparently associate with forum shopping.

As explained above, see supra Part II(B), the decision in Nu Image has no relation to the

present case, so it is unclear on what basis Petitioner would dismiss a case to avoid a decision in

a completely unrelated case. Further, Respondent does not explain how this argument is a basis

for non-compliance with a valid subpoena. Finally, as explained in Plaintiff’s Opposition to

Comcast’s Notice of Related Case and Motion for Reassignment Magistrate Judge Kay could not

have reassigned the case under Local Rule 40.5, because the two cases did not involve the same

parties or the same subject matter and good cause not exist for the reassignment. (ECF No. 10.)

Therefore, Magistrate Judge Kay did not err by not reassigning the matter to Judge Wilkins.

CONCLUSION

The Court should deny Respondent’s objections and uphold Magistrate Judge Alan Kay’s

April 18, 2012 order. Magistrate Judge Kay did not err in finding Respondent’s personal

jurisdiction and misjoinder arguments were not at issue at this stage of the proceedings. Finally,

Magistrate Judge Kay did not err by not reassigning this matter to Judge Robert Wilkins.





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Case 1:12-mc-00150-ESH-AK Document 17 Filed 05/17/12 Page 9 of 10

Respectfully submitted,

MILLENNIUM TGA, INC.

DATED: May 16, 2012


















By: /s/ Paul A. Duffy
Paul A. Duffy, Esq. (D.C. Bar Number: IL0014)
Prenda Law Inc.
161 N. Clark St., Suite 3200
Chicago, IL 60601
Telephone: (312) 880-9160
Facsimile: (312) 893-5677
E-mail: [email protected]
Counsel for the Plaintiff

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Case 1:12-mc-00150-ESH-AK Document 17 Filed 05/17/12 Page 10 of 10

CERTIFICATE OF SERVICE

/s/ Paul A. Duffy
PAUL A. DUFFY



The undersigned hereby certifies that on May 16, 2012, all counsel of record who are
deemed to have consented to electronic service are being served a true and correct copy of the
foregoing document using the Court’s CM/ECF system.





















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