John Wiley & Sons, Inc. v. John Does Nos. 1-27 - Document 11
MEMORANDUM & ORDER denying 10 Motion to Dismiss; denying 10 Motion to Quash; denying 10 Motion for Protective Order. Doe No. 7's motion to proceed anonymously is denied with prejudice. Doe No. 7's motions to dismiss the complaint for lack of personal jurisdiction and improper venue, and his motion for severance, are denied without prejudice. Finally, Doe No. 7's motion to quash the subpoena and for a protective order is denied. The Clerk of the Court is directed to terminate the motion pending at ECF No. 10. (Signed by Judge William H. Pauley, III on 2/3/2012) (ft)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
11 Civ. 7627 (WHP)
JOHN WILEY & SONS, INC.,
MEMORANDUM & ORDER
JOHN DOES NOS. 1-27,
WILLIAM H. PAULEY III, District Judge:
Defendant John Doe No.7 ("Doe No.7") moves for an order 1) allowing him to
proceed anonymously; 2) dismissing the complaint against him for lack of personal jurisdiction
and improper venue; and 3) severing him from the other defendants in this litigation. Doe No.7
further moves to quash the subpoena addressed to CSC Holdings, LLC (Le., Optimum Online)
seeking his identity or, in the alternative, for a protective order. For the foregoing reasons, Doe
No. 7's motion is denied.
Plaintiff John Wiley & Sons, Inc. ("Wiley") publishes books, including the
popular "For Dummies" series. (Complaint dated Oct. 27, 2011, ~~ 1, 7.) On October 27,2011,
Wiley filed this action against twenty-seven defendants, seeking injunctive relief and damages
for copyright infringement. Because Wiley knew the defendants only by their IP addresses, it
served subpoenas on various internet service providers to obtain the defendants' names.
Motion to Proceed Anonymously
"As a general rule, parties may not litigate their disputes anonymously." Klein v.
City of New York, No. 10 Civ. 9568 (LAK)(JLC), 2011 WL 3370402, at * 1 (S.D.N.Y. Aug. 3,
2011). Federal Rule of Civil Procedure lO(a) requires that "[t]he title of the complaint must
name all the parties." Because this rule "serves the vital purpose of facilitating public scrutiny of
judicial proceedings ... [it] cannot be set aside lightly." Sealed Plaintiffv. Sealed Defendant,
537 F.3d 185, 188-89 (2d Cir. 2008). "When evaluating a request by a party to proceed
anonymously or by pseudonym courts consider numerous factors, including whether
identification would put the affected party at risk of suffering physical or mental injury."
Geurrilla Girls, Inc. v. Kaz, 224 F.R.D. 571,573 (S.D.N.Y. 2004) (quoting EW v. N.Y. Blood
Ctf., 213 F.R.D. 108, 111 (E.D.N.Y. 2003)) (internal punctuation omitted).
Here, Doe No.7 proffers no reason why he should proceed anonymously beyond
his potential liability for copyright infringement. This justification is inadequate. See Doe v.
United Servs. Life Ins. Co., 123 F.R.D. 437,439 n.l (S.D.N.Y. 1988) ("Courts should not permit
parties to proceed pseudonymously just to protect the parties' professional or economic life.").
Accordingly, Doe No. 7's motion to proceed anonymously is denied with prejudice.
Personal Jurisdiction and Venue
"[P]rior to discovery, a plaintiff challenged by a jurisdiction testing motion may
defeat the motion by pleading in good faith ... legally sufficient allegations ofjurisdiction, i.e.,
by making a prima facie showing ofjurisdiction." Jazini v. Nissan Motor Co., 148 F.3d 181, 184
(2d Cir. 1998). Here, Wiley determined that Doe No.7 is located in New York based on an IP
address location tool known as www.IP210cation.com. Wiley's good faith allegation regarding
Doe No. 7's location suffices to make a prima facie showing ofjurisdiction. See Jazini, 148 F.3d
at 184. Accordingly, Doe No. 7's motion to dismiss the complaint for lack ofpersonal
jurisdiction is denied without prejudice as premature.
As to venue, the copyright venue statute provides that a copyright infringement
action may be brought "in the district in which the defendant or his agent resides or may be
found." 28 U.S.C. § 1400(a). And "[i]t is well-established that a defendant 'may be found' in
any district in which he is subject to personal jurisdiction; thus, venue and jurisdiction are
coextensive." Editorial Musical Latino Americana. S.A. v. Mar Int'! Records. Inc., 829 F. Supp.
62,66 (S.D.N.Y. 1993). Because Doe No. 7's challenge to personal jurisdiction is premature,
his challenge to venue is premature as well. Accordingly, Doe No. 7's motion to dismiss the
complaint for improper venue is denied without prejudice.
Doe No. 7's request to be severed from the other defendants is also premature.
This action is in its infancy, and each defendant will have ample time to challenge his inclusion
in the litigation. See Sony Music Entm't Inc. v. Does 1-40,326 F. Supp. 2d 556, 568 (S.D.N.Y.
2004); see also Artista Records LLC v. Does 1-16, Civ. No.1 :08-CV-765 (GTSIRFT), 2009 WL
414060, at *8 (N.D.N.Y. Feb. 18,2009), affd sub nom., Arista Records. LLC v. Doe 3, 604 F.3d
110 (2d Cir. 2010)(denying request to be severed from other defendants as premature).
Accordingly, Doe No. 7's motion for severance is denied without prejUdice.
Wiley issued subpoenas in this action to obtain the identities of the various John
Doe defendants. Doe No.7 now urges this Court to quash the subpoena seeking his identity or,
in the alternative, to issue a protective order preventing disclosure of his identity. Doe No.7
claims that such relief is necessary because Wiley "may pursue a predatory scheme against him."
But Wiley merely seeks to obtain the names of individuals it believes have infringed its
copyrights. Because Doe No.7 has failed to identify any legal ground for shielding his identity
from disclosure, the motion to quash is denied. Further, the Court denies Doe No. Ts
application for a protective order under Federal Rule of Civil Procedure 26(c) because Doe No.7
is not "a party or any person from whom discovery is sought[.]"
For the foregoing reasons, Doe No. Ts motion to proceed anonymously is denied
with prejudice. Doe No. Ts motions to dismiss the complaint for lack of personal jurisdiction
and improper venue, and his motion for severance, are denied without prejUdice. Finally, Doe
No. Ts motion to quash the subpoena and for a protective order is denied. The Clerk of the
Court is directed to terminate the motion pending at ECF No. 10.
Dated: February 3, 2012
New York, New York
~ WILLIAM H. PAULEY III }S
b~~ \.JQ ..~t
William Irvin Dunnegan, Esq.
350 Fifth Avenue
New York, NY 10118
Counsel for Plaintiff