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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 CENTRAL DISTRICT OF CALIFORNIA

INGENUITY 13 LLC, Case No. 2:12-cv-8333-SVW(PJ Wx) Plaintiff, Vv. PLAINTIFF’S RESPONSE TO MOVANT?’S EX PARTE JOHN DOE, APPLICATION FOR STAY OF THE SUBPOENA RETURN DATE Defendant.

PLAINTIFF’S RESPONSE TO MOVANT?’S EX PARTE APPLICATION FOR STAY OF THE SUBPOENA RETURN DATE

An anonymous individual (“Movant”) filed, through attorney Morgan E. Pietz, an ex parte application for stay of the subpoena return date. (ECF No. 13.) Movant claims he “received a letter from Verizon that plaintiff was seeking his identity on Monday November 26, 2012” and that Verizon will disclose his identity on November 30, 2012 if Movant does not object. (/d. at 2.) Movant requests that the return date of Plaintiff's subpoena be stayed for an additional thirty (30) days. Ud. at 4.) For the reasons set forth below, Movant’s application for stay of the subpoena return date should be denied.

ARGUMENT

Movant’s application should be denied for four reasons. First, Movant has

improperly brought his application on an ex parte basis. Second, based on the

information provided by Movant, his motion to quash is unlikely to be successful.

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EX PARTE BASIS

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Third, a stay of the subpoena return date will be highly prejudicial to Plaintiff. Fourth, Movant improperly introduces evidence in violation of Federal Rule of Evidence 408.

I. MOVANT HAS IMPROPERLY BROUGHT HIS APPLICATION ON AN

Movant’s application is brought on an ex parte basis. (ECF No. 13.) Ex parte proceedings are generally disfavored. U.S. v. Klimavicius-Viloria, 144 F.3d 1249,

7 |11261 (9th Cir. 1998) (“Ex parte hearings are generally disfavored’’); U.S. v. Kenney, 8 11911 F.2d 315, 321 (9th Cir. 1990) (recognizing “that in our system, adversary

9 || procedures are the general rule and ex parte examinations are disfavored.”). Ex parte

10 |lrelief is appropriate only in rare circumstances, such as when there is no known

11 || opposing party with whom to confer. (See, e.g. ECF No. 8 at 11-12) (citing Wakefield 12 |lv. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (error to dismiss unnamed

13 ||defendants given possibility that identity could be ascertained through discovery). In

14 |/the instant case there is a party in which Movant can confer—Plaintiff. Plaintiff

15 ||understands Movant’s temporal concerns, but Plaintiff should be allowed to weigh in

16 || on the prejudicial relief sought by Movant.

17 Further, Movant has failed to comply with the Local Rule for bringing an ex

18 || parte application. Central District of California Local Rule 7-19 states that:

19 An application for an ex parte order shall be accompanied by a memorandum containing, if known, the name, address, telephone number and e-mail address of counsel for the 21 opposing party, the reasons for the seeking of an ex parte order, and points and authorities in support thereof. An applicant also shall lodge the proposed ex parte order.

24 |/L.R. 7-19. Movant failed to attach any memorandum addressing any of these

25 ||requirements. Most importantly, Movant’s application does not set forth any authority

26 |j|addressing why ex parte relief is appropriate here. (See generally ECF No 13.)

27 || Furthermore, Movant purposefully misstates the meet and confer email between him

28 |jand Plaintiff's counsel. Despite Movant’s claims that Mr. Gibbs “promised”

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PLAINTIFF’S RESPONSE TO MOVANT’S APPLICATION TO STAY No. 2:12-cv-8333-S VW(PJWx)

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7 ||request, Movant prematurely filed this motion prior to the end of Wednesday.

Movant’s counsel that he would get back to him on Wednesday regarding stay request, Plaintiff’s counsel indicated that he “should have an answer for [Movant’s attorney] by Wednesday.” That mandated time period, Planitiff’s attorney explained, was very tight in terms of the getting in touch with the Plaintiff, receiving an answer on this request, and getting back to Movant’s attorney by Wednesday. Additionally,

instead of waiting to hear back from Plaintiff’s attorney per Movant’s counsel’s

8 || other words, the implicit agreement to give Plaintiff’s counsel through Wednesday to

9 ||return Movant’s counsel’s email was violated when Movant filed his ex parte motion

10 |/that evening. Movant effectively failed to follow through with the period set on the

11 |]meet and confer. Meeting and conferring is an essential element to Movant’s ex parte

12 |]motion. It was not adequately conducted. Movant’s application is improperly filed on

13 ||an ex parte basis and he failed to adhere to the local rules. As a result, his ex parte

14 || application should be denied.

IS

16 II. MOVANT’S EVENTUAL MOTION TO QUASH WILL LIKELY BE 7 UNSUCCESSFUL

18 Movant argues that good cause exists for a stay of the subpoena because his

19 ||motion to quash has merit. (ECF No. 13 at 3.) However, based on the reasons

20 || provided by Movant, this is incorrect. Movant provides two reasons as to why his

21 |}motion to quash Plaintiff's subpoena will have merit: 1) “the discovery is not “very

22 || likely’ to lead to the identification of an actual defendant” and 2) “the subpoena

23 |}implicates Movant’s limited First Amendment right to anonymity.” (/d.) Both of these

24 |/issues have already been addressed in Plaintiff application for leave to take expedited

25 || discovery. (ECF No. 8.) And the Court already ruled on these issues when it granted

26 || Plaintiff's application. (ECF No. 9.) Movant’s motion to quash, therefore, would

27 || actually be a motion for reconsideration of the Court’s Order of October 9, 2012, and

28 11a motion for reconsideration has a much stricter standard for relief. Brown v. Kinross

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PLAINTIFF’S RESPONSE TO MOVANT’S APPLICATION TO STAY No. 2:12-cv-8333-S VW(PJWx)

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L.R. 7-18.

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Gold, USA, 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005) (“Reconsideration of a prior ruling is appropriate...where the initial decision was clearly erroneous or manifestly

unjust.) (Citing Nunes v. Ashcroft, 375 F. 3d 805, 807-808 (9" Cir. 2004)); see also

Further, Movant mischaracterizes the requirement set forth in Gillespie v.

Civiletti, 629 F.2d 637 (9th Cir. 1980). Movant argues that “the discovery is not ‘very

7 || likely’ to lead to the identification of an actual defendant.” (ECF No. 13 at 3) (citing 8 || Gillespie, 629 F.2d at 642-643). Plaintiff is not required that to show that the

9 || discovery is “very likely” to lead to the identification of the unknown defendant, but

10 || instead “the plaintiff should be given an opportunity through discovery to identify the

11 |}unknown defendants, unless it is clear that discovery would not uncover the

12 |/identities.” Jd. (emphasis added). Because motions for reconsideration are rarely

13 |] granted and Movant demonstrates a fundamental misunderstanding of the controlling

14 || law, his eventual “motion to quash” will likely be unsuccessful.

5 Wf. ASTAY OF THE SUBPOENA RETURN DATE WILL BE HIGHLY PREJUDICIAL TO PLAINTIFF

17 Movant argues that “Plaintiff is not prejudiced whatsoever by this extension.”

18 || (ECF No. 13 at 4.) Movant acknowledges the Rule 4(m) 120-day deadline for service

19 ||of process, but argues that “[P]laintiff still has ample time to effect service on an

20 ||appropriate defendant if it chooses to do so.” (/d.) Plaintiff filed it complaint on

21 || September 27, 2012—over 60 days ago. (ECF No. 1.) Movant seeks to delay the case

22 || by an additional 30 days in which to file his motion. (ECF No. 13.) After Movant files

23 ||his motion, Verizon will withhold his identifying information until the Court rules on

24 ||the motion. Even after Plaintiff were to get his identifying information back, Plaintiff

25 ||must conduct a further inquiry to determine if the subscriber associated with the

26 ||infringing IP address is, in fact, the actual infringer. Finally, if Plaintiff is able to

27 ||identify the true infringer, it must still amend the complaint and name and serve the

28 ||Defendant with process. All of this takes considerable time, and in Plaintiffs

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PLAINTIFF’S RESPONSE TO MOVANT’S APPLICATION TO STAY No. 2:12-cv-8333-S VW(PJWx)

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counsel’s experience cases similar to this often run into issues with Rule 4(m) due to the unusual circumstances of the case, even without any delays. A delay of 30 days will likely result in a violation of Rule 4(m). A stay of the subpoena return date will, therefore, be highly prejudicial to Plaintiff. IV. MOVANT IMPROPERLY INTRODUCES EVIDENCE IN VIOLATION OF FEDERAL RULE OF EVIDENCE 408

Movant references and attaches e-mail between his counsel and Plaintiff's counsel. (ECF No. 13-2.) Several of the e-mails contain compromise offers and negotiations. (/d.) As a result, these e-mails cannot be used as evidence pursuant to Federal Rule of Evidence 408(a). Indeed, the e-mails from Plaintiff's counsel even indicate as much. (ECF No. 13-2 at 2) (““NOTICE: THIS EMAIL IS INTENDED TO BE PART OF A SETTLEMENT NEGOTIATION AND IS NOT ADMISSIABLE UNDER FRE RULE 408.”). Movant has improperly introduced this evidence into this action. As a result, the e-mail chain should be struck and Movant’s application denied.

CONCLUSION

The Court’s should deny Movant’s ex parte application for stay of the subpoena return date. Movant has improperly brought his application on an ex parte basis. Based on the information provided by Movant, his motion to quash is unlikely to be successful. A stay of the subpoena return date will be highly prejudicial to Plaintiff. Movant improperly introduces evidence in violation of Federal Rule of Evidence 408. MI /I/ HII III /I/ III /I/ III

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PLAINTIFF’S RESPONSE TO MOVANT’S APPLICATION TO STAY No. 2:12-cv-8333-S VW(PJWx)

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Respectfully Submitted, AF HOLDINGS LLC,

DATED: November 30, 2012

By: /s/_ Brett L. Gibbs, Esq. =

Brett L. Gibbs, Esq. (SBN 251000) 7 Of Counsel to Prenda Law Inc.

38 Miller Avenue, #263 g Mill Valley, CA 94941

blgibbs @ eo 9 Attorney for Plaintiff

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PLAINTIFF’S RESPONSE TO MOVANT’S APPLICATION TO STAY No. 2:12-cv-8333-S VW(PJWx)