Dallas Buyers Club, LLC v. Doe-75.81.191.27, No. 3:2015cv01845 - Document 10 (S.D. Cal. 2015)
Court Description: ORDER granting 6 Supplemental MOTION for Early Discovery. Good cause appearing, the motion for early discovery is GRANTED as provided in the attached Order. Signed by Magistrate Judge Mitchell D. Dembin on 9/2/15. (Dembin, Mitchell)
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Dallas Buyers Club, LLC v. Doe-75.81.191.27 Doc. 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 15cv01845-BEN (MDD) Dallas Buyers Club, LLC, Plaintiff, 12 13 v. 14 Doe-75.81.191.27, ORDER GRANTING MOTION FOR EARLY DISCOVERY [ECF NO. 6] Defendant. 15 16 On August 31, 2015, Plaintiff Dallas Buyers Club, LLC filed a 17 18 Supplemental Ex Parte Motion for Expedited Discovery.1 (ECF No. 6). No 19 Defendant has been named or served. For the reasons discussed below, 20 Plaintiff’s Motion is GRANTED. 21 I. PROCEDURAL HISTORY On August 19, 2015, Plaintiff filed a Complaint against Doe, allegedly 22 23 a subscriber of Time Warner Cable assigned IP address 75.81.191.27 24 25 26 1 Plaintiff earlier filed an Ex Parte Motion for Discovery identifying the incorrect Internet Service Provider. (ECF No. 5). That motion was withdrawn. (ECF No. 7). The Supplemental Motion filed on August 31, 2015, is the operative motion at this time. 1 15cv01845-BEN (MDD) Dockets.Justia.com 1 (“Defendant”). (ECF No. 1.) Plaintiff alleges a single cause of action for 2 direct copyright infringement. Plaintiff asserts that it is the registered 3 copyright holder of the motion picture Dallas Buyers Club. (See ECF No. 1 4 at ¶¶ 4, 6.) Plaintiff contends Defendant used the BitTorrent file 5 distribution network to copy and distribute Plaintiff’s copyrighted work 6 through the Internet without Plaintiff’s permission. (ECF No. 1 at ¶ 35.) 7 Plaintiff seeks leave to conduct early discovery to learn the identity of 8 the subscriber of the subject Internet Protocol (“IP”) address from the 9 Internet Service Provider (“ISP”) who leased that IP address to its 10 subscriber during the relevant period. Specifically, Plaintiff seeks an order 11 permitting it to serve a third party subpoena, pursuant to Fed. R. Civ. P. 45, 12 on Time Warner Cable requiring the ISP to supply the name and address of 13 its subscriber to Plaintiff. 14 II. LEGAL STANDARDS 15 Formal discovery generally is not permitted without a court order 16 before the parties have conferred pursuant to Federal Rule of Civil 17 Procedure 26(f). Fed. R. Civ. P. 26(d)(1). “[H]owever, in rare cases, courts 18 have made exceptions, permitting limited discovery to ensue after filing of 19 the complaint to permit the plaintiff to learn the identifying facts necessary 20 to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 21 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 22 637, 642 (9th Cir. 1980)). Requests for early or expedited discovery are 23 granted upon a showing by the moving party of good cause. See Semitool, 24 Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002) 25 (applying “the conventional standard of good cause in evaluating Plaintiff’s 26 request for expedited discovery”). 2 15cv01845-BEN (MDD) 1 “The Ninth Circuit has held that when the defendants’ identities are 2 unknown at the time the complaint is filed, courts may grant plaintiffs 3 leave to take early discovery to determine the defendants’ identities ‘unless 4 it is clear that discovery would not uncover the identities, or that the 5 complaint would be dismissed on other grounds.’” 808 Holdings, LLC v. 6 Collective of December 29, 2011 Sharing Hash, No. 12-cv-0186 MMA (RBB), 7 2012 WL 1648838, *3 (S.D. Cal. May 4, 2012) (quoting Gillespie, 629 F.2d at 8 642). “A district court’s decision to grant discovery to determine 9 jurisdictional facts is a matter of discretion.” Columbia Ins., 185 F.R.D. at 10 578 (citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 11 n.24 (9th Cir. 1977)). 12 District courts apply a three-factor test when considering motions for 13 early discovery to identify Doe defendants. Id. at 578-80. First, “the 14 plaintiff should identify the missing party with sufficient specificity such 15 that the Court can determine that defendant is a real person or entity who 16 could be sued in federal court.” Id. at 578. Second, the plaintiff “should 17 identify all previous steps taken to locate the elusive defendant” to ensure 18 that the plaintiff has made a good faith effort to identify and serve process 19 on the defendant. Id. at 579. Third, the “plaintiff should establish to the 20 Court’s satisfaction that plaintiff’s suit against defendant could withstand a 21 motion to dismiss.” Id. (citing Gillespie, 629 F.2d at 642). Further “the 22 plaintiff should file a request for discovery with the Court, along with a 23 statement of reasons justifying the specific discovery requested as well as 24 identification of a limited number of persons or entities on whom discovery 25 process might be served and for which there is a reasonable likelihood that 26 3 15cv01845-BEN (MDD) 1 the discovery process will lead to identifying information about defendant 2 that would make service of process possible.” Id. at 580. 3 III. ANALYSIS 4 A. Identification of Missing Party with Sufficient Specificity 5 First, Plaintiff must identify Defendant with enough specificity to 6 enable the Court to determine that Defendant is a real person or entity who 7 would be subject to the jurisdiction of this Court. Columbia Ins., 185 F.R.D. 8 at 578. This Court has previously determined that “a plaintiff identifies 9 Doe defendants with sufficient specificity by providing the unique IP 10 addresses assigned to an individual defendant on the day of the allegedly 11 infringing conduct, and by using ‘geolocation technology’ to trace the IP 12 addresses to a physical point of origin.” 808 Holdings, 2012 WL 1648838, at 13 *4 (quoting OpenMind Solutions, Inc. v. Does 1-39, No. C-11-3311 MEJ, 14 2011 WL 4715200 (N.D. Cal. Oct. 7, 2011); Pink Lotus Entm’t, LLC v. Does 15 1-46, No. C-11-02263 HRL, 2011 WL 2470986 (N.D. Cal. June 21, 2011)). 16 Here, with the Complaint, Plaintiff filed a chart reflecting that the 17 user of the subject IP address engaged in allegedly infringing activity from 18 June 14 through 23, 2015; identified the ISP as Time Warner Cable; and 19 located the IP address in Imperial and El Centro, California, both within 20 the Southern District of California. (ECF No. 1-2). Consequently, Plaintiff 21 has identified the Defendant, at this point, with sufficient specificity. See 22 OpenMind Solutions, 2011 WL 4715200, at *2 (concluding that plaintiff 23 satisfied the first factor by identifying the defendants’ IP addresses and by 24 tracing the IP addresses to a point of origin within the State of California); 25 Pink Lotus Entm’t, 2011 WL 2470986, at *3 (same). In addition, Plaintiff 26 4 15cv01845-BEN (MDD) 1 has presented evidence that the identified IP address is physically located 2 in this district. (See ECF No. 1-2.) 3 B. Previous Attempts to Locate Defendant Next, Plaintiff must describe all prior steps it has taken to identify the 4 5 defendant in a good faith effort to locate and serve him or her. See 6 Columbia Ins., 185 F.R.D. at 579. Plaintiff states it has been able to 7 identify the ISP used by the alleged infringer, where he or she is generally 8 located, and the software used to commit the alleged acts of infringement. 9 (ECF No. 5-1 at 4.) Plaintiff maintains that there are no other practical 10 measures available to determine the actual identity of Defendant. Thus, 11 Plaintiff appears to have obtained and investigated the available data 12 pertaining to the alleged infringement in a good faith effort to locate 13 Defendant. See OpenMind Solutions, 2011 WL 4715200, at *3; MCGIP, 14 LLC v. Does 1-149, 2011 WL 3607666, *2 (N.D. Cal. Aug. 3, 2011); Pink 15 Lotus Entm’t, 2011 WL 2470986, at *3. 16 C. 17 Ability to Withstand a Motion to Dismiss “Finally, to be entitled to early discovery, [Plaintiff] must 18 demonstrate that its Complaint can withstand a motion to dismiss.” 808 19 Holdings, 2012 WL 1648838 at *5 (citing Columbia Ins., 185 F.R.D. at 579). 20 21 22 1. Ability to State a Claim Upon Which Relief Can Be Granted In order to establish copyright infringement, a plaintiff must show: (1) 23 ownership of a valid copyright, and (2) that the defendant violated the 24 copyright owner’s exclusive rights under the Copyright Act. Ellison v. 25 Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004); 17 U.S.C. § 501(a). Here, 26 5 15cv01845-BEN (MDD) 1 Plaintiff alleges it owns the registered copyright of the work that Defendant 2 allegedly copied and distributed using the BitTorrent file distribution 3 network. (ECF No. 1 at ¶¶ 4, 6.) Plaintiff also alleges it did not permit or 4 consent to Defendant’s copying or distribution of its work. (Id. at ¶ 35.) It 5 appears Plaintiff has stated a prima facie claim for copyright infringement 6 that can withstand a motion to dismiss. 7 2. 8 Plaintiff bears the burden of establishing jurisdictional facts. See Personal Jurisdiction 9 Columbia Ins. Co., 185 F.R.D. at 578. Plaintiff’s motion does not discuss 10 whether this Court has personal jurisdiction over Defendant. However, 11 Plaintiff’s Complaint claims that Defendant is located in this judicial 12 district. (See ECF No. 1-2). The Complaint also alleges that Defendant’s 13 acts of copyright infringement occurred using an IP address traced to a 14 physical location in this district, and that Defendant is believed to reside in 15 California. (ECF No. 1. at ¶ 3, 14.) 16 Therefore, at this early juncture, it appears Plaintiff has alleged 17 sufficient facts to show it can likely withstand a motion to dismiss for lack 18 of personal jurisdiction because Defendant’s IP address was traced to a 19 location in this district. See 808 Holdings, 2012 WL 1648838 at *6-7. 20 2. 21 “The venue of suits for infringement of copyright is not determined by 22 the general provision governing suits in the federal district courts, rather by 23 the venue provision of the Copyright Act.” Goldberg v. Cameron, 482 F. 24 Supp. 2d 1136, 1143 (N.D. Cal. 2007) (citing 28 U.S.C. § 1400(a); Lumiere v. 25 Mae Edna Wilder, Inc., 261 U.S. 174, 176 (1923)). “In copyright Venue 26 6 15cv01845-BEN (MDD) 1 infringement actions, venue is proper ‘in the district in which the defendant 2 or his agent resides or may be found.’” Brayton Purcell LLP v. Recordon & 3 Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010) (quoting 28 U.S.C. § 1400(a)). 4 “The Ninth Circuit interprets this statutory provision to allow venue ‘in any 5 judicial district in which the defendant would be amendable to personal 6 jurisdiction if the district were a separate state.’” Id. 7 Plaintiff does not address venue in its motion. In the Complaint, 8 however, Plaintiff alleges venue is proper because although Defendant’s 9 true identity is unknown, Defendant is believed to reside (and therefore can 10 be found in this district), and a substantial part of the infringing acts 11 complained of occurred in this district. (ECF No. 1 at ¶ 3, 13.) Defendant 12 appears to have an IP address in this district. Accordingly, Plaintiff’s 13 Complaint can likely survive a motion to dismiss. 14 D. 15 Specific Discovery Request Plaintiff has not provided a proposed subpoena. Plaintiff stated, 16 however, that it will seek to obtain only the name and address of the 17 subscriber associated with the IP address from Time Warner Cable. 18 The Court finds Plaintiff has shown good cause to subpoena records 19 from Time Warner Cable identifying the subscriber assigned to the subject 20 IP address. The subpoena to Time Warner Cable must be limited to 21 documents identifying the subscriber’s name and address during the 22 relevant period. That information should be sufficient for Plaintiff to be 23 able to identify and serve Defendant. If Plaintiff is unable to identify and 24 serve Defendant after receiving a response to the subpoena, Plaintiff may 25 seek leave from the Court to pursue additional discovery. 26 7 15cv01845-BEN (MDD) 1 E. Cable Privacy Act 2 Finally, the Court must consider the requirements of the Cable 3 Privacy Act, 47 U.S.C. § 551. The Act generally prohibits cable operators 4 from disclosing personally identifiable information regarding subscribers 5 without the prior written or electronic consent of the subscriber. 47 U.S.C. 6 § 551(c)(1). A cable operator, however, may disclose such information if the 7 disclosure is made pursuant to a court order and the cable operator provides 8 the subscriber with notice of the order. 47 U.S.C. § 551(c)(2)(B). The ISP 9 that Plaintiff intends to subpoena in this case is a cable operator within the 10 meaning of the Act. 11 IV. CONCLUSION 12 13 14 For the reasons set forth above, Plaintiff’s Ex Parte Motion for Expedited Discovery is GRANTED, as follows: 1. Plaintiff may serve a subpoena, pursuant to and compliant with 15 the procedures of Fed. R. Civ. P. 45, on Time Warner Cable seeking only the 16 name and address of the subscriber assigned to the subject IP address for 17 the relevant time period. 18 2. The subpoena must provide at least forty-five (45) calendar days 19 from service to production. Time Warner Cable may seek to quash or 20 modify the subpoena as provided at Rule 45(d)(3). 21 3. Time Warner Cable shall notify its subscriber, no later than 22 fourteen (14) calendar days after service of the subpoena, that his or her 23 identity has been subpoenaed by Plaintiff. The subscriber whose identity 24 has been subpoenaed shall then have thirty (30) calendar days from the 25 date of the notice to seek a protective order, to move to quash or modify the 26 subpoena or file any other responsive pleading. 8 15cv01845-BEN (MDD) 1 4. Plaintiff shall serve a copy of this Order with the subpoena upon 2 Time Warner Cable. Time Warner Cable, in turn, must provide a copy of 3 this Order along with the required notice to the subscriber whose identity is 4 sought pursuant to this Order. 5 5. 6 IT IS SO ORDERED. 7 Dated: September 2, 2015 No other discovery is authorized at this time. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 9 15cv01845-BEN (MDD)
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