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Case3:10-cv-03851-SI Document35

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CHRISTINA A. DiEDOARDO California Bar No. 258714 Nevada Bar No. 9543 LAW OFFICES OF CHRISTINA DiEDOARDO 201 Spear Street Suite 1100 San Francisco, CA 94105 (415) 839-5098 Christina@diedoardolaw.com Attorney for Doe Defendant 4 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) Case No.: 10-3851 (SI) Doe Defendant 4s Reply to Opposition to Motion to Dismiss Pursuant to Fed. R. Civ. P 4(m), or, in the alternative, Motion for Leave to Proceed Anonymously Date of Hearing: March 4, 2011 Time of Hearing: 9 a.m.

IO GROUP Plaintiff, vs. DOE No. 4. Defendant.

Doe Defendant 4s Reply to Opposition to Motion to Dismiss or in the Alternative, Motion For Leave To Proceed Anonymously MEMORANDUM OF POINTS AND AUTHORITIES

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I. Argument
A. Plaintiff Has Failed To Provide a Compelling Reason for Its Failure To Comply With Fed. R. Civ. P. 4(m)
Plaintiff admits it failed to comply with the provisions of Fed. R. Civ. P. 4(m) by failing to either serve Doe No. 4 or apply for an extension of time within which to do so before December 27, 2010, the deadline by which it was required to do so under the rules. See Pltfs. Opp, p. 3, ln.26-p.4, ln.10). Instead, it invites this Court to disregard the plain language of Fed.

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R. Civ. P. 4(m) that holds, in pertinent part If a defendant is not served within 120 days after the

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complaint is filed, the court on motion or on its own after notice to the plaintiff must
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dismiss the action without prejudice against that defendant (Emphasis added) because it thinks it could simply re-file the Complaint (Pltf.s Opp., p. 4, ln. 9). Alas, Plaintiff cannot re-file the complaint in this Court due to the fact that as of January 10, 2011 it was placed on actual notice (thanks to Earthlinks compliance with Plaintiffs prior subpoena) that Doe No. 4 does not live within this judicial district and that Doe No. 4 lacks sufficient contacts with this judicial district. If Plaintiff were to re-file the complaint here after a dismissal by this Court for its undisputed failure to comply with Fed. R. Civ. P. 4(m), then it would place itself and its counsel in danger of substantial sanctions pursuant to Fed. R. Civ. P.11. Plaintiffs riposte that Defendant somehow lacks standing to move for dismissal under

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Fed. R. Civ. P. 4(m) because he has not yet been named is just the latest example of its tease
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and denial approach to this litigation. As Plaintiff well knows, Defendant has been ordered to appear and participate at the upcoming Case Management Conference notwithstanding Plaintiffs noncompliance with Fed. R. Civ. P. 4(m). Furthermore, it was the Court which directed Defendant to file the instant motion to proceed anonymously within thirty days of the turnover of Doe No. 4s confidential information to Plaintiff by Earthlink or the protective order barring disclosure of Doe No. 4s identity would lapse. See December 7, 2010 Ord (Dkt. 23, p. 3, ln. 1617). It is both false and spurious for Plaintiff to claim the parties are now engaged in a second round of motions that the moving party could have avoided had the Subscriber simply contacted Plaintiffs counsel and requested a stipulated protective order or accepted Plaintiffs offer to extend the current protective order. (Pltf. Opp., p.5, ln. 3-7). In reality, what Mr.

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Sperlein dubs the second round of motions became necessary because Plaintiff failed to
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comply with Fed. R. Civ. P. 4(m) and because Defendant complied with the Courts December 7, 2010 order, as he was obligated to do.

B. Plaintiff Is Not Entitled To Any More Extraordinary Discovery


Adding insult to injury, Plaintiff now claims for the first time that it will address the Court at the CMC to ask for additional extraordinary discovery prior to Doe No. 4 ever being served with the complaint in this case. Now that Plaintiff has learned the identity of the Subscriber, it must further investigate before amending the Complaint to add the name of the infringer by taking third party discovery, primarily directed to the Subscriber. (Pltfs Opp., p. 4, ln. 15-16). Given that Plaintiff is already on actual notice that this Court lacks personal jurisdiction over Doe No. 4, it is repugnant to the interests of justice and to its counsels professional obligation as an attorney that it has decided to continue to waste this Courts time and the money of Doe No. 4 with further discovery requests.

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Its counsels remarkable statement that Mr. Does attorney does not represent him
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(Pltfs. Opp, p. 6, ln. 13-14) is only further evidence of its misapprehension of the basic rules
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governing litigation in federal courts (and which even first-year law students seem to be able to grasp without difficulty). Plaintiffs counsel has failed to identify any case in support of its ridiculous position that a party whose records have been sought by a Plaintiff and whose participation in a CMC has been mandated by the Court somehow cannot have an attorney unless it admits to the alleged infringement. While doubtlessly this would be convenient for Mr. Sperlein, this is not the law.

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C. Defendant Is Entitled To Proceed Anonymously


Continuing its usual pattern of incoherence, Plaintiff first argues that it will not seek to Amend the Complaint and name the Subscriber as Defendant unless further investigation

uncovers evidence that he is indeed the infringer (Pltf. Opp, p. 6, ln. 16) and then states that
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Doe No. 4 should not be allowed to proceed anonymously (Pltfs Opp, p.6, ln. 24-25). In truth, Plaintiff is not entitled to any further investigation assisted by this Court. It can either (a) dismiss the case and attempt to re-file it in the Court which has personal jurisdiction over Doe No. 4; (b) ask the Court for an extension of time to serve Doe No. 4 (which was supposed to have been completed almost two months ago) and, if the Court grants that request over the objection of Doe No.4, defend against a renewed motion to dismiss on jurisdictional grounds coupled with a request for Rule 11 sanctions; or (c) dismiss the case entirely. What Plaintiff manifestly cannot do is hold Doe No. 4 hostage under its sword of Damocles and attempt to tease out additional discovery prior to serving him with the complaint.

I. Conclusion
For the reasons set forth above and in the underlying motion Doe No. 4 respectfully requests that this Court DISMISS this lawsuit pursuant to Fed. R. Civ. P. 4(m) or, in the alternative, ALLOW him to proceed anonymously as Doe No. 4 in this case as provided for by Advanced Textile and its progeny. Respectfully submitted this 18th day of February 2011 /S/Christina A. DiEdoardo Christina A. DiEdoardo California Bar No. 258714

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CERTIFICATE OF SERVICE I am Christina A. DiEdoardo, an attorney licensed to practice law before all of the Courts of the states of California and Nevada as well as the Ninth Circuit Court of Appeals. On February 18, 2011 I sent a true and complete copy of the foregoing Doe Defendant 4s Reply to Opposition to Motion to Dismiss Pursuant to Fed. R. Civ. P 4(m), or, in the alternative,

Motion for Leave to Proceed Anonymously


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to the following parties and/or their attorneys of record via CM/ECF Mr. D. Gill Sperlein, Esq., The Law Office of D. Gill Sperlein 584 Castro Street Suite 879 San Francisco CA 94114 I also sent a courtesy copy via U.S. Mail to:

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The Hon. Susan Illston United States District Judge United States District Court 450 Golden Gate Avenue San Francisco, CA 94102

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.

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Dated this 18th day of February, 2011


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/S/Christina A. DiEdoardo Christina A. DiEdoardo California Bar No. 258714

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