Berlin MediaArt e.k. v. Does 1 through 654, No. 3:2011cv03770 - Document 12 (N.D. Cal. 2011)
Court Description: ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S REQUEST FOR DISCOVERY PRIOR TO RULE 26(f) CONFERENCE (Dkt. Nos. 2, 11). Signed by Magistrate Judge Jacqueline Scott Corley on 10/18/2011. (ahm, COURT STAFF) (Filed on 10/18/2011)
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Berlin MediaArt e.k. v. Does 1 through 654 Doc. 12 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 10 11 BERLIN MEDIA ART e.k., Northern District of California United States District Court 12 Plaintiff, 13 v. 14 Case No.: 11-03770 (JSC) ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S REQUEST FOR DISCOVERY PRIOR TO RULE 26(f) CONFERENCE (Dkt. Nos. 2, 11) DOES 1 – 654, 15 Defendants. 16 17 18 This case is one of several mass copyright cases filed in this District on behalf of various plaintiffs against thousands of doe defendants accused of using BitTorrent technology to illegally 19 download copyrighted files from the internet. See, e.g., Boy Racer v. Does 2–52, Case No. 11–283420 21 LHK (PSG); Boy Racer v. Does 1-52, Case No. 11-2329-PSG; Pacific Century Int‘l, Ltd. v. Does 1– 22 101, Case No. 11–2533-DMR; Pacific Century Int‘l, Ltd. v. Does 1-129, Case No. 11-3681-HRL; 23 MCGIP, LLC v. Does 1–149, Case No. 11–2331–LB; Hard Drive Productions, Inc. v. Does 1-166, 24 Case No. 11-03682-LHK (HRL); Hard Drive Productions, Inc. v. Does 1–188, Case No. 11–1566– 25 26 JCS; Hard Drive Productions, Inc. v. Does 1-118, Case No. 11-01567-LB. Now pending before the 27 Court is Plaintiff‘s motion for limited ex parte discovery under Federal Rules of Civil Procedure 28 ( FRCP ) 26(d) and 45 prior to the FRCP 26(f) conference. Specifically, Plaintiff seeks to subpoena Dockets.Justia.com 1 internet service providers ( ISPs ) for personal information that will reveal the identities of the 654 2 Doe Defendants named in this suit. (Dkt. Nos. 2, 11.) For the reasons explained below, Plaintiff‘s 3 application is DENIED without prejudice. 4 5 BACKGROUND Plaintiff alleges that 654 Doe Defendants ( Defendants ) used BitTorrent, an internet peer-to- 6 7 peer ( P2P ) file sharing network, to illegally reproduce and distribute Plaintiff‘s copyrighted work— 8 Sperma triologie —in violation of the Copyright Act, 17 U.S.C. § 501 et seq. (Amended Complaint 9 at ¶¶ 3, 12, Dkt. No. 10.) BitTorrent allows a user to join a swarm‘ comprised of multiple users 10 hosting the sought after file on their personal computer to download and upload from each other 11 simultaneously. (Dkt. No. 11 at 6.) Plaintiff maintains that the Defendants were all part of the same Northern District of California United States District Court 12 13 swarm. (Dkt. No. 11 at 4.) This swarm took place between August 29, 2011 and September 22, 14 2011. (Dkt. No. 11 at Ex. A.) Because Defendants‘ conduct occurred behind the mask of their 15 anonymous internet protocol ( IP ) addresses, Plaintiff cannot identify Defendants without leave to 16 subpoena Defendants‘ internet service providers ( ISPs ) for the identity of the individual or entity 17 18 related to each IP address. Plaintiff claims that because each ISP assigns a unique IP address to each 19 subscriber and retains subscriber activity records regarding the IP addresses assigned, the information 20 sought in the subpoena will enable Plaintiff to serve Defendants and proceed with this case. (Dkt. 21 No. 11 at 2: 26-28.) Consequently, Plaintiff asks the Court to grant expedited discovery to issue 22 subpoenas to the relevant ISPs to require the ISPs to disclose the name, address, telephone number, 23 24 25 26 27 and email address for each Defendant‘s IP address. (Dkt. No. 3 at 3.) DISCUSSION A court may authorize discovery before the Rule 26(f) conference for the parties‘ convenience and in the interests of justice. FRCP 26(d)(1). Courts within the Ninth Circuit apply a good cause 28 2 1 standard to requests for such early discovery. See, e.g., OpenMind Solutions, Inc. v. Does 1-39, 2011 2 WL 4715200 *2 (N.D. Cal. Oct. 7, 2011). Where, as here, a plaintiff moves for expedited discovery 3 to identify anonymous internet users named as doe defendants, courts consider whether: 4 5 6 7 8 9 10 (1)the plaintiff can identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court; (2) the plaintiff has identified all previous steps taken to locate the elusive defendant; (3) the plaintiff's suit against defendant could withstand a motion to dismiss; and (4) the plaintiff has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of process would be possible. OpenMind Solutions, Inc., 2011 WL 4715200 at *2 (citing Columbia Ins. Co. v. seescandy. com, 185 F.R.D. 573, 578–80 (N.D.Cal.1999)). Upon review of the Amended Complaint and Plaintiff‘s 11 motion, the Court finds that Plaintiff has not demonstrated the requisite good cause because it has not Northern District of California United States District Court 12 13 shown that this Court would have personal jurisdiction over each doe defendant and that venue is 14 proper in this District. 15 1. Personal Jurisdiction 16 17 Plaintiff hired a firm that assists content owners in combating online piracy to identify IP 18 addresses and other significant data of each user engaged in the distribution of Plaintiff‘s Motion 19 Picture. (Dkt. No. 11 at 2.) Despite utilizing this service, Plaintiff does not allege any facts to 20 demonstrate that any of the IP addresses referenced belong to users located in this District; indeed, 21 22 Plaintiff makes no allegations with respect to personal jurisdiction at all. Instead, the complaint notes 23 only that at least one of the 654 Doe Defendants resides in this District and makes no attempt to 24 identify that doe defendant. Plaintiff also does not allege any due diligence to discover the likely 25 location of the doe defendants. Yet, with minimal effort, the Court was able to utilize one of many 26 free and publicly available services to look up the locations affiliated with IP addresses for which 27 28 Plaintiff seeks discovery. See DigiProtect USA Corp. v. Does, 2011 WL 4444666 (S.D.N.Y Sep. 26, 3 1 2011) (stating that [p]ublicly available software provides basic, or at least presumptive, geographic 2 information about IP addresses ). Selecting at random IP addresses provided in Exhibit A of the 3 Amended Complaint, the Court gathered the following presumptive geographic data: 4 Doe 1, IP address 172.162.24.137, is in Washington, DC; 5 Doe 2, IP address 24.49.39.55, is in Hagerstown, Maryland; 6 7 Doe 3, IP address 69.88.39.250, is also in Hagerstown, Maryland; 8 Doe 4, IP address 24.239.89.221, is in Youngstown, Ohio; 9 Doe 5, IP address 69.42.13.10, is in Concord, California; 10 Doe 6, IP address 32.160.79.9, is in Washington, DC; 11 Doe 52, IP address 24.231.236.189, is in St. Louis, Missouri; Northern District of California United States District Court 12 13 Doe 100, IP address 68.59.200.167, is in Chattanooga, Tennessee; 14 Doe 200, IP address 71.239.76.143, is in Chicago, Illinois; 15 Doe 300, IP address 31.128.3.24, is in Salkie, Katowice in Poland; 16 Doe 400, IP address 76.178.187.129, is in Couer d‘Alene, Idaho; 17 18 Doe 500, IP address 65.190.56.89, is in Raleigh, North Carolina; and 19 Doe 600, IP address 98.117.214.84, is in Baltimore, Maryland. 20 These results suggest that this Court lacks personal jurisdiction over the doe defendants; 21 indeed, even without investigating the IP addresses, a cursory look at the carriers identified in the 22 complaint suggests personal jurisdiction problems. For example, Exhibit A includes regional ISPs 23 24 whose very names suggest they are located outside this District, such as BellSouth, which is 25 headquartered in Atlanta, Georgia, and Atlantic Broadband, which is located in Quincy, 26 Massachusetts. (Dkt. No. 11 at Ex. A.) For this reason alone the Court in its discretion denies the 27 motion for expedited discovery. See DigiProtect USA Corp., 2011 WL 4444666 at *2 (stating that a 28 4 1 court may deny a request for early discovery if the plaintiff cannot make a prima facie showing of 2 personal jurisdiction); Columbia Ins. Co., 185 F.R.D. at 579 (holding that one factor to consider on a 3 motion for expedited discovery is whether the complaint would survive a motion to dismiss). 4 In short, this case involves a German company whose film has allegedly been illegally 5 downloaded from remote towns in Idaho to the far reaches of Poland over the span of nearly a month. 6 7 There is nothing in the complaint that makes a prima facie showing that this court in the Northern 8 District of California has personal jurisdiction of the doe defendants named in this case. The Court is 9 not aware of any caselaw that suggests that this Court has personal jurisdiction over all 654 10 Defendants simply because at least one of the defendants (unidentified) allegedly happened to 11 download the file at some point during the time period in question from a computer located in this Northern District of California United States District Court 12 13 District. As one court in this District noted, the logical extension of such an unprecedented holding 14 would be that everybody who used . . . BitTorrent would subject themselves to jurisdiction in every 15 state. On The Cheap, LLC v. Does 1-5011, 2011 WL 4018258 at *4 (N.D. Cal. Sep 6, 2011). 16 [T]his is a far cry from the requirement that there be some act by which the defendant purposefully 17 18 19 avails itself of the privilege of conducting activities with the forum State,‘ which is the hallmark of specific jurisdiction. Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). 20 2. Venue 21 Plaintiff states that venue is proper in the Northern District pursuant to 28 U.S.C. §§ 1391 22 and 1400, in that a substantial portion of the events giving rise to the dispute arose in this district, the 23 24 25 harm was sustained in this district, and at least one Defendant is found in this district. (Amended Complaint at ¶ 5.) This conclusory assertion is insufficient to support venue. 26 First, under the copyright venue provision, venue is proper in the district in which the 27 defendant or his agent resides or may be found. 28 U.S.C. § 1400(a). As explained above, Plaintiff 28 5 1 2 3 4 5 does not and cannot allege that each of the 654 defendants are found in this District. Thus, venue is not proper under section 1400. Second, as alluded to in the Amended Complaint, in a federal question case venue is proper in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C. § 1391(b)(2). There is nothing in the Amended Complaint, however, that 6 7 suggests Plaintiff—a German company—has a good faith basis for alleging that a substantial part of 8 the events or omissions occurred in this District; to the contrary, the Amended Complaint alleges 9 merely that at least one of the 654 doe defendants resides in this District, and even then does not 10 identify that doe defendant. Thus, once again, Plaintiff‘s motion for expedited discovery has failed to 11 demonstrate that the complaint could withstand a motion to dismiss. See Columbia Ins. Co., 185 Northern District of California United States District Court 12 13 F.R.D. at 579. 14 3. Joinder 15 Aside from the significant jurisdictional obstacles noted above, joinder may also be improper. 16 Under FRCP 20(a), proper joinder requires both that claims against all defendants stem from the same 17 18 transaction or occurrence or series of transactions or occurrences and also that all defendants share in 19 common any question of law or fact. When defendants are not properly joined, FRCP 21 permits the 20 court at any time, on just terms, to add or drop a party if no substantial right will be prejudiced by 21 the severance. Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). Several courts have held 22 that the mere allegation that defendants have used the same peer-to-peer network to infringe a 23 24 copyrighted work is insufficient to meet the standards for joinder set forth in Rule 20. Diabolic 25 Video Productions, Inc. v. Does 1-2099, 2011 WL 3100404 (N.D. Cal. May 31, 2011). As it is 26 unclear how many of the doe defendants this Court would actually have personal jurisdiction and 27 proper venue over, the Court need not address the joinder issue at this time. 28 6 CONCLUSION 1 2 3 4 The problems with personal jurisdiction and venue in this action are not merely technical. It is fundamentally unfair to require a defendant from outside this District to incur the substantial costs necessary to file a motion to quash in this District when Plaintiff has the ability to discern in advance 5 which IP addresses are at least likely to be from this District. Accordingly, as Plaintiff has not 6 7 demonstrated good cause, the motion for expedited discovery is DENIED. The denial is without 8 prejudice to Plaintiff amending its complaint and renewing its motion to make at least a prima facie 9 showing that the Court has personal jurisdiction over each defendant for whom Plaintiff seeks early 10 discovery and that venue is proper. See OpenMind Solutions, Inc., 2011 WL 4715200 at *2 (granting 11 motion for expedited discovery where, among other things, the plaintiff had alleged sufficient Northern District of California United States District Court 12 13 14 information to show that each defendant was subject to the jurisdiction of the court). This Order disposes of Docket Nos. 2, 11. 15 IT IS SO ORDERED. 16 17 Dated: October 18, 2011 18 _________________________________ JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 7
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