Playboy Entertainment Group Inc v. Happy Mutants, LLC — Entry #30: RESPONSE filed by Plaintiff Playboy Entertainment Group Incto Minutes of In Chambers Order/Directive - no proceeding held 29 (Doniger, Stephen) (Entered…

Case 2:17-cv-08140-FMO-PLA Document 30 Filed 03/12/18 Page 1 of 2 Page ID #:204


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      Stephen M. Doniger (SBN 179314)
      stephen@donigerlawfirm.com
  2   Scott Alan Burroughs (SBN 235718)
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      scott@donigerlawfirm.com
      Howard S. Han (SBN 243406)
  4   hhan@donigerlawfirm.com
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      DONIGER / BURROUGHS
      603 Rose Avenue
  6   Venice, California 90291
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      Telephone: (310) 590-1820
      Attorneys for Plaintiff
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  9                          UNITED STATES DISTRICT COURT
 10                        CENTRAL DISTRICT OF CALIFORNIA
 11   PLAYBOY ENTERTAINMENT                         Case No. 2:17-cv-08140-FMO-PLA
 12   GROUP, INC., a Delaware corporation,          Hon. Fernando M. Olguin Presiding

 13   Plaintiff,                                   RESPONSE TO ORDER TO SHOW
 14                                                CAUSE
      v.
 15

 16   HAPPY MUTANTS, LLC, a Delaware
      limited liability company; and DOES 1
 17   through 10,
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      Defendants.
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 20          On February 14, 2018 this Court issued an Order granting Defendant’s motion
 21   to dismiss with leave to amend. That Order appeared to give Plaintiff the option of
 22   either filing a Second Amended Complaint by February 26, 2018 or having the case
 23   dismissed without prejudice. Plaintiff thus believed that this case would simply be
 24   dismissed without prejudice should it not file a Second Amended Complaint and is
 25   unclear as to why this Order to Show Cause threatening sanctions has issued.
 26          Given this Court’s statement in its February 14, 2018 Order that it was
 27   “skeptical that plaintiff has sufficiently alleged facts to support either its inducement
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                            PLAINTIFFS’ RESPONSE TO ORDER TO SHOW CAUSE
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Case 2:17-cv-08140-FMO-PLA Document 30 Filed 03/12/18 Page 2 of 2 Page ID #:205


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      or material contribution theories of copyright infringement” (docket No. 26, page 2,

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      lines 7-8), which referenced the 2014 Tarantino v. Gawker Media, LLC case (which

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      in turn held that a plaintiff asserting contributory infringement claims based on

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      linking to third party content had to plead specific facts that the linking led to further

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      acts of infringement), 1 Plaintiff has elected to pursue third party subpoenas under,

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      inter alia, The Digital Millennium Copyright Act Section 512(h) in order to obtain

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      further facts before determining how to proceed on its claims against Happy Mutants.

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            Based on the foregoing, Plaintiff submits that there is no basis for sanctions;

  9   however, the case can and should be dismissed without prejudice at this juncture per

 10   this Court’s February 14, 2018 Order.

 11                                                  Respectfully submitted,

 12   Dated: March 12, 2018                   By:    /s/ Stephen M. Doniger
 13                                                  Stephen M. Doniger, Esq.
                                                     Howard S. Han, Esq.
 14                                                  DONIGER /BURROUGHS
 15                                                  Attorneys for Plaintiff

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      1  As discussed in Plaintiff’s opposition to Defendant’s motion to dismiss, it appears
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      to Plaintiff that Judge Walter’s decision in Tarantino v. Gawker Media, LLC finding
 24   that evidence of further infringements is required is inconsistent with the plain
      language of the Ninth Circuit’s holding in Perfect 10, Inc. v. Amazon.com, Inc. et
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      al., 508 F.3d 1146 (9th Cir. 2007) that “Google could be held contributorily liable if
 26   it had knowledge that infringing Perfect 10 images were available using its search
      engine, could take simple measures to prevent further damage to Perfect 10’s
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      copyrighted works, and failed to take such steps.” 508 F.3d at 1172.
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                            PLAINTIFFS’ RESPONSE TO ORDER TO SHOW CAUSE
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