Strike 3 Holdings, LLC v. John Doe, No. 3:2022cv01628 - Document 5 (S.D. Cal. 2022)
Court Description: ORDER granting 4 Ex Parte Motion for Discovery for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by Magistrate Judge Karen S. Crawford on 11/10/2022. (fth)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, Case No.: 22-cv-1628-RBM-KSC Plaintiff, 12 13 v. 14 JOHN DOE subscriber assigned IP address 68.8.86.210, 15 16 ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE Defendant. [Doc. No. 4] 17 18 Before the Court is plaintiff Strike 3 Holdings, LLC’s Ex Parte Application for 19 Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference. Doc. No. 4. For 20 the reasons stated below, plaintiff’s application is GRANTED. 21 I. BACKGROUND 22 On October 20, 2022, plaintiff filed a Complaint against defendant John Doe 23 subscriber assigned IP address 68.8.86.210, asserting a claim for direct copyright 24 infringement. See Doc. No. 1. Plaintiff alleges it is the owner of certain adult-content 25 films that defendant is “stealing … on a grand scale” by downloading these films and 26 distributing them to others without plaintiff’s authorization, permission, or consent. Id. at 27 ¶¶ 1-5, 51. Defendant’s identity is known to plaintiff only by defendant’s IP address: 28 1 22-cv-1628-RBM-KSC 1 68.86.210. Id. at ¶ 13; Doc. No. 4-1 at 7.1 Plaintiff therefore seeks the Court’s leave to 2 serve a subpoena pursuant to Fed. R. Civ. P. 45 on defendant’s internet service provider 3 (“ISP”), Cox Communications, to learn defendant’s identity. Id. at 7-8. Plaintiff asserts 4 that “[w]ithout this information,” it cannot serve defendant, “nor pursue this lawsuit and 5 protect its copyrights.” Id. at 8. 6 II. LEGAL STANDARDS 7 Generally, discovery is not permitted without a court order before the parties have 8 conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). “[I]n 9 rare cases,” however, “courts have made exceptions, permitting limited discovery to ensue 10 after filing of the complaint to permit the plaintiff to learn the identifying facts necessary 11 to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 12 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). 13 Courts permit early discovery “where the need for expedited discovery, in consideration of 14 the administration of justice, outweighs the prejudice to the responding party.” Semitool, 15 Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002) (applying “the 16 conventional standard of good cause in evaluating [a] request for expedited discovery”). 17 The Ninth Circuit has held that when the defendant’s identity is unknown at the time 18 the complaint is filed, courts may grant a plaintiff leave to take early discovery to determine 19 the defendant’s identity “unless it is clear that discovery would not uncover the identit[y], 20 or that the complaint would be dismissed on other grounds.” Gillespie, 629 F.2d at 642. 21 “A district court’s decision to grant discovery to determine jurisdictional facts is a matter 22 of discretion.” Columbia Ins. Co., 185 F.R.D. at 578 (citations omitted). “[T]o prevent 23 abuse of this extraordinary application of the discovery process and to ensure that the 24 plaintiff has standing,” the plaintiff must show “that an act giving rise to civil liability 25 26 27 28 1 The Court uses the pagination assigned by the CM/ECF system. 2 22-cv-1628-RBM-KSC 1 actually occurred,” and that the requested discovery is specifically aimed at … identifying 2 … the person who committed the act. Id. at 579-80. 3 III. DISCUSSION 4 District Courts apply a three-factor test when considering motions for early 5 discovery to identify the defendant. Columbia Ins. Co., 185 F.R.D. at 578-80. First, the 6 plaintiff should “identify the missing party with sufficient specificity such that the Court 7 can determine that defendant is a real person or entity who could be sued in federal court.” 8 Id. at 578. Second, the movant must describe “all previous steps taken to locate the elusive 9 defendant” to ensure that the plaintiff has made a good faith effort to identify and serve 10 process on the defendant. Id. at 579. Third, the plaintiff should establish that its suit against 11 the defendant could withstand a motion to dismiss. Id 12 A. Identification of Missing Parties with Sufficient Specificity 13 A plaintiff can satisfy its burden of identifying the missing party with specificity by 14 “identify[ing] the unique IP addresses” of the allegedly infringing individuals and then 15 “us[ing] geolocation technology to trace these IP addresses to a point of origin.” Pink 16 Lotus Entm’t, LLC v. Does 1-46, No. C-11-02263 HRL, 2011 WL 2470986, at *3 (N.D. 17 Cal. June 21, 2011). Here, plaintiff determined that Cox Communications provided the 18 subject IP address associated with defendant and used geolocation technology to trace the 19 IP address to an address located within this District. See Doc. No. 4-1 at 12-13; Doc. No. 20 4-2 at 29. Plaintiff confirmed the information before filing its Complaint and again before 21 filing the instant ex parte application. Doc. No. 4-2 at 29. The Court finds plaintiff has 22 “sufficiently shown” that defendant is a “real person[] likely residing in California who 23 may be sued in this Court.” Pink Lotus, 2011 WL 2470986, at *3; accord Malibu Media, 24 LLC v. Doe, 319 F.R.D. 299, 305 (E.D. Cal. 2016). 25 B. Previous Attempts to Locate Defendant 26 Next, plaintiff must identify all previous steps taken to identify the Doe defendant in a 27 good faith effort to locate and serve it. See Columbia Ins. Co., 185 F.R.D. at 579. Plaintiff 28 reports it attempted to correlate defendant’s IP address to defendant by using web search 3 22-cv-1628-RBM-KSC 1 tools, conducted research on other methods of identifying and locating defendant, and 2 consulted with computer investigators and cyber security consultants. Doc. No. 4-1 at 14. 3 Despite these efforts, plaintiff has been unable to identify defendant and represents it 4 cannot do so without the requested discovery. See id. at 14. Accordingly, the Court finds 5 that plaintiff has made a good-faith effort to identify and locate defendant before filing the 6 instant applications. 7 C. Ability to Withstand a Motion to Dismiss 8 Plaintiff’s Complaint alleges a single cause of action against defendant for direct 9 copyright infringement. See Doc. No. 1 ¶¶ 48-53. Plaintiff alleges it owns the subject 10 intellectual property, which defendant copied and distributed without plaintiff’s 11 authorization, permission or consent. See id. The Court finds plaintiff has alleged a prima 12 facie case of direct copyright infringement against defendant that would likely withstand a 13 motion to dismiss for failure to state a claim. See Malibu Media, 319 F.R.D. at 305 (finding, 14 on similar facts, an adult-entertainment company established a prima facie claim for 15 copyright infringement). 16 Plaintiff also bears the burden of establishing jurisdictional facts. See Columbia Ins. 17 Co., 185 F.R.D. at 578 (citation omitted). Plaintiff, using geolocation technology, traced 18 defendant’s IP address to a point of origin within this District before filing its Complaint 19 and again before filing the instant ex parte application. See Doc. No. 4-1 at 12-13; Doc. 20 No. 4-2 at 29. These facts sufficiently show “that it is likely that the [d]efendant is located 21 within the Southern District of California and is subject to the personal jurisdiction of the 22 Court.” Criminal Prods., Inc. v. Doe, No. 16-cv-02353-DMS-MDD, 2016 WL 6070355, 23 at *3 (S.D. Cal. Oct. 17, 2016). The Court therefore finds plaintiff has shown it can likely 24 withstand a motion to dismiss for lack of personal jurisdiction. 25 The Court will also consider whether venue is proper in this District. Civil actions 26 for copyright infringement “may be instituted in the district in which defendant or his agent 27 resides or may be found.” 28 U.S.C.A. § 1400(1). A defendant is “found” for venue 28 purposes where he is subject to personal jurisdiction. Id. (footnote omitted). Further, 4 22-cv-1628-RBM-KSC 1 plaintiff alleges venue is proper because defendant allegedly committed the infringing acts 2 complained of in this District. Doc. No. 1 at ¶ 11. The Court finds the Complaint could 3 likely withstand a motion to dismiss for improper venue. 4 Accordingly, having satisfied the burden of stating a claim, showing jurisdiction, and 5 showing venue, the Court finds plaintiff has adequately demonstrated the Complaint can 6 likely survive a motion to dismiss. 7 8 9 10 ORDER For the reasons set forth above, plaintiff’s Ex Parte Application is GRANTED. It is hereby further ORDERED that: 1. Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45 upon Cox 11 Communications for the sole purpose of obtaining the name and address only 12 of defendant John Doe, based on the IP address listed in the Complaint: 13 68.8.86.210. The subpoena shall not seek defendant’s telephone number, 14 email address, or Media Access Control (MAC) address, as this information 15 is not necessary for plaintiff to identify and serve defendant. 16 2. The return date of the subpoena must allow for at least forty-five (45) days 17 from service to production. If Cox Communications intends to move to quash 18 the subpoena, it must do so prior to the return date of the subpoena. If a motion 19 to quash or other customer challenge is brought, Cox Communications must 20 preserve the information sought by plaintiff pending resolution of the motion 21 or challenge. 22 3. Cox Communications shall have fourteen (14) calendar days after service of 23 the subpoena upon it to notify its subscriber that his/her identity has been 24 subpoenaed by plaintiff. The subscriber whose identity has been subpoenaed 25 shall 26 notice to challenge the disclosure to plaintiff by filing an appropriate pleading 27 with this Court contesting the subpoena. have thirty (30) calendar days from the date of such 28 5 22-cv-1628-RBM-KSC 1 4. Plaintiff shall serve a copy of this Order with any subpoena served upon Cox 2 Communications pursuant to this Order. Cox Communications, in turn, must 3 provide a copy of this Order along with the required notice to the subscriber 4 whose identity is sought pursuant to this Order. 5 5. 6 7 Plaintiff may use the information disclosed pursuant to the subpoena only in pursuing this litigation. 6. No other discovery is authorized at this time. 8 IT IS SO ORDERED. 9 Dated: November 10, 2022 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 22-cv-1628-RBM-KSC
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