808 Holdings, LLC v. Collective of December 29, 2011 Sharing Hash E37917C8EEB4585E6421358FF32F29CD63C23C91 et al, No. 3:2012cv00186 - Document 7 (S.D. Cal. 2012)
Court Description: ORDER Granting in Part and Denying in Part 3 Motion for Leave to Take Early Discovery. Signed by Magistrate Judge Ruben B. Brooks on 5/4/2012. (All non-registered users served via U.S. Mail Service)(leh)
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808 Holdings, LLC v. Collective of December 29, 2011 Sharing Hash E37917...58FF32F29CD63C23C91 et al Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 Civil No. 12cv00186 MMA(RBB) 808 HOLDINGS, LLC, a California ) ) limited liability company, ) ) Plaintiff, ) ) v. ) COLLECTIVE OF DECEMBER 29, 2011 ) ) SHARING HASH E37917C8EEB4585E6421358FF32F29C ) ) D63C23C91; DOES 1-83, ) inclusive, ) ) Defendants. ) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR LEAVE TO TAKE EARLY DISCOVERY [ECF NO. 3] On January 24, 2012, Plaintiff filed a Motion for Leave to 20 Take Early Discovery, along with a Memorandum of Points and 21 Authorities and an exhibit [ECF No. 3]. 22 been named or served, no opposition or reply briefs have been 23 filed. 24 indicating that the Plaintiff failed to comply with the local rules 25 and obtain a hearing date before filing its Motion for Leave to 26 Take Early Discovery [ECF No. 4]. 27 motion hearing for April 23, 2012, at 10:00 a.m. 28 2012, ECF No. 4.) Because no Defendant has On March 1, 2012, the Court issued a minute order The Court sua sponte set a 1 (Mins. 1, Mar. 1, 12cv00186 MMA(RBB) Dockets.Justia.com 1 The Court finds the Plaintiff's Motion for Leave to Take Early 2 Discovery suitable for resolution on the papers. 3 Civ. R. 7.1(d)(1). 4 GRANTED in part and DENIED in part. 5 I. 6 PROCEDURAL HISTORY 7 See S.D. Cal. For the reasons discussed below, the Motion is On January 23, 2012, Plaintiff 808 Holdings, LLC ("808 8 Holdings") filed a Complaint against Collective of December 29, 9 2011 Sharing Hash E37917C8EEB4585E6421358FF32F29CD63C23C91, and 10 DOES one through eighty-three ("Defendants") [ECF No. 1]. 11 Plaintiff does business under the names "Cody Media" and 12 "SeanCody.com," and it purports to be the registered owner of, and 13 hold the exclusive rights to, the copyright of the motion picture, 14 "Brandon & Pierce Unwrapped." 15 808 Holdings alleges a claim for copyright infringement, stating 16 that Defendants reproduced and distributed Plaintiff's copyrighted 17 material through the Internet without authorization of the 18 Plaintiff. 19 contributory copyright infringement, alleging that Defendants 20 illegally obtained the copyrighted motion picture and assisted 21 others in doing the same. 22 that the Defendants were negligent in failing to adequately secure 23 their Internet access to prevent its unlawful use by others. 24 at 39-40.) 25 (Id. at 36-37.) (Compl. 1, 3, ECF No. 1.) First, Second, 808 Holdings pleads (Id. at 37-39.) Third, Plaintiff argues (Id. One day after filing the Complaint, on January 24, 2012, 808 26 Holdings filed this Motion for Leave to Take Early Discovery to 27 learn the identities of the Doe Defendants from their respective 28 Internet Service Providers ("ISPs"). 2 (Mot. Leave Take Early Disc. 12cv00186 MMA(RBB) 1 1, ECF No. 3.)1 2 directing the ISPs to release the subscriber's identifying 3 information. 4 interrogatories on, and take the depositions of, the individuals 5 identified by the ISPs to determine whether the actual Internet 6 subscriber is the proper defendant. 7 its Motion a list of the Internet Protocol (“IP”) addresses 8 associated with subscribers it hopes to identify as defendants. 9 (Id. Attach. #2 Ex. A, at 2-4.) Specifically, 808 Holdings seeks an order (Id.) The Plaintiff also seeks leave to serve (Id.) Plaintiff attached to 10 II. 11 FACTUAL ALLEGATIONS 12 In the Complaint, Plaintiff 808 Holdings alleges that the 13 eighty-three Doe Defendants collectively infringed its copyrighted 14 work using a BitTorrent file transfer protocol. 15 1.) 16 distributes the motion picture to others, those individuals can 17 distribute that infringing copy to other people in "an 18 interconnected collective," which builds on prior infringements. 19 (Id.) 20 users" or "peers" whose computers are connected for the purpose of 21 sharing a file, otherwise known as a "swarm." 22 Plaintiff alleges that each BitTorrent swarm is associated with a 23 particular "hash," which has a specific identifier for the file. 24 (Id.) (Compl. 2, ECF No. In general, the Plaintiff asserts that each time a Defendant The Defendants are purportedly a collection of "BitTorrent (Id. at 3.) The sharing hash associated with the motion picture is 25 26 27 28 1 Because the pages attached to the Motion are not paginated, the Court will cite to the Motion for Leave to Take Early Discovery using the page numbers assigned by the electronic case filing system. 3 12cv00186 MMA(RBB) 1 E37917C8EEB4585E6421358FF32F29CD63C23C91 ("E379 Hash"). 2 4.) 3 A. 4 (Id. at BitTorrent Protocol According to 808 Holdings, the BitTorrent protocol is 5 distinguishable from previously used peer-to-peer file sharing 6 technology, utilized by Napster or Limewire, because it "allows for 7 higher transfer speeds by locating pieces (or 'bits') of the file 8 already present on other users' computers and downloading them 9 simultaneously." (Id. at 32.) "This is done by joining into the 10 'swarm,' or collective, of peers to download and upload from each 11 other simultaneously." 12 downloads than peer-to-peer file sharing technology. (Id.) This process results in faster (Id.) Plaintiff describes the process of downloading and uploading 13 14 files through a BitTorrent protocol as "quick and efficient." 15 at 33.) 16 file on a BitTorrent client application; the user then extracts a 17 list with tracker locations that connect to IP addresses that are 18 currently running the BitTorrent software and offering to 19 distribute the file. 20 then begins to download the media file automatically. 21 B. 22 (Id. When a user downloads a media file, he or she opens the (Id.) The downloader's BitTorrent program (Id.) Forming a Swarm In the Complaint, 808 Holdings maintains that a swarm begins 23 with an initial user called the "seeder" who begins to share a file 24 with a torrent swarm. 25 the seeder to download the media file, which creates a digital copy 26 of the file; the process repeats as new members join the swarm, 27 increasing the number of users in the swarm. 28 both acquires and redistributes the media file by simultaneously (Id.) New members of the swarm connect to 4 (Id.) Each member 12cv00186 MMA(RBB) 1 uploading and downloading portions of the same digital copy with 2 the other members. 3 that even if the original seeder leaves the swarm, the media file 4 can continue to be downloaded by old and new members. 5 C. (Id. at 33-34.) Therefore, Plaintiff contends (Id. at 33.) The December 29, 2011 Sharing Hash 6 Plaintiff claims that on December 29, 2011, each of the 7 Defendants "republished, duplicated, and replicated the exact same 8 copy and exact same hash file." 9 Defendants are associated with the E379 hash, 808 Holdings alleges (Id. at 4.) Because all the (Id. at 35.) 10 that each was a member of the same collective swarm. 11 Accordingly, Plaintiff asserts that they "acted collectively, and 12 in concert, in effectuating the illegal and unauthorized sharing of 13 Plaintiff's copyrighted work." 14 the Doe Defendants acted in unison: 15 16 17 18 19 20 (Id.) 808 Holdings contends that Defendants engaged in their copyright infringement scheme together. They all used the same torrent-sharing technology to coordinate their collective copyright theft; they were all members of the same exact swarm on the same exact date; they all used the same exact tracker file; they all shared and republished the same exact motion picture; and they all shared the same exact hash file of the Motion Picture with each other and other individuals on the same exact date, December 29, 2011. (Id. at 4.) 21 III. 22 LEGAL STANDARDS 23 Generally, discovery is not permitted without a court order 24 before the parties have conferred pursuant to Federal Rule of Civil 25 Procedure 26(f). 26 courts have made exceptions, permitting limited discovery to ensue 27 after filing of the complaint to permit the plaintiff to learn the 28 identifying facts necessary to permit service on the defendant." Fed. R. Civ. P. 26(d)(1). 5 Yet, "in rare cases, 12cv00186 MMA(RBB) 1 Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 2 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 3 1980)). 4 good cause for the early discovery. 5 Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002). 6 Courts grant these requests when the moving party shows Semitool, Inc. v. Tokyo Elec. The Ninth Circuit has held that when the defendants' 7 identities are unknown at the time the complaint is filed, courts 8 may grant plaintiffs leave to take early discovery to determine the 9 defendants' identities "unless it is clear that discovery would not 10 uncover the identities, or that the complaint would be dismissed on 11 other grounds.” 12 decision to grant discovery to determine jurisdictional facts is a 13 matter of discretion." 14 Gellespie, 629 F.2d at 642. "A district court's Columbia Ins. Co., 185 F.R.D. at 578. District courts apply a three-factor test when considering 15 motions for early discovery to identify certain defendants. Id. at 16 578-80. 17 with sufficient specificity such that the Court can determine that 18 defendant is a real person or entity who could be sued in federal 19 court." 20 previous steps taken to locate the elusive defendant" to ensure 21 that the plaintiff has made a good faith effort to identify and 22 serve process on the defendant. 23 should establish that its suit against the defendant could 24 withstand a motion to dismiss. 25 extraordinary application of the discovery process and to ensure 26 that the plaintiff has standing," plaintiff must show that some act 27 giving rise to liability actually occurred and that the discovery First, the plaintiff should "identify the missing party Id. at 578. Second, the movant must describe "all Id. at 579. Id. Third, plaintiff “[T]o prevent abuse of this 28 6 12cv00186 MMA(RBB) 1 is aimed at identifying the person who allegedly committed the act. 2 Id. at 579-80. 3 IV. 4 DISCUSSION 5 Plaintiff seeks an order permitting it to subpoena twenty- 6 three ISPs for documents and information sufficient to identify the 7 subscribers of the assigned IP addresses listed in Exhibit A to its 8 Motion: 9 (3) CABLE ONE, Inc., (4) CenturyTel Internet Holdings, (5) Charter (1) AT&T d/b/a SBC Internet Services, (2) BellSouth.net, 10 Communications, (6) Comcast Cable, (7) Cox Communications, (8) 11 Cyber Wurx, LLC., (9) Earthlink, (10) Embarq Corporation, (11) Fuse 12 Internet Access, (12) HickoryTech Corporation, (13) Insight 13 Communications Company, (14) The Iserv Company LLC, (15) Level 3 14 Communications, (16) Optimum Online, (17) Qwest Communications, 15 (18) RCN Corporation, (19) SureWest Broadband, (20) Time Warner 16 d/b/a Road Runner, (21) Verizon Internet Services, (22) 17 WideOpenWest, and (23) Windstream Communications. 18 Early Disc. Attach. #1 Mem. P. & A. 2, ECF No. 3.) 19 eighty-three corresponding IP addresses that Plaintiff lists in 20 Exhibit A, only twenty-six are located in California; five of those 21 Defendants are located within San Diego or Imperial Counties, and 22 twenty-one are located outside the district. 23 A, at 2-4.) 24 three do not specify a particular location. 25 A. 26 (Mot. Leave Take Out of the (Id. Attach. #2 Ex. Fifty-four are located outside of California, and (Id.) Identification of Missing Parties with Sufficient Specificity First, 808 Holdings must identify the Doe Defendants with 27 enough specificity to enable the Court to determine that the 28 defendant is a real person or entity who would be subject to the 7 12cv00186 MMA(RBB) 1 jurisdiction of this Court. 2 In its Motion for Leave to Take Early Discovery, 808 Holdings 3 asserts it has “sufficiently identified individuals who are real 4 persons” that Plaintiff can sue in this federal district court. 5 (Mot. Leave Take Early Disc. Attach. #1 Mem. P. & A. 3, ECF No. 3.) 6 It has “observed and documented the infringement of its registered 7 work by the individuals identified as DOES . . . .” 8 808 Holdings contends that the discovery sought is necessary to 9 ascertain the identities of the Defendants. 10 Columbia Ins. Co., 185 F.R.D. at 578. (Id.) Also, (Id.) Some district courts in the Ninth Circuit have determined that 11 a plaintiff identifies Doe defendants with sufficient specificity 12 by providing the unique IP addresses assigned to an individual 13 defendant on the day of the allegedly infringing conduct, and by 14 using “geolocation technology” to trace the IP addresses to a 15 physical point of origin. 16 1-39, No. C-11-3311 MEJ, 2011 U.S. Dist. LEXIS 116552, at *5-6 17 (N.D. Cal. Oct. 7, 2011); Pink Lotus Entm’t v. Does 1-46, No. C-11- 18 02263 HRL, 2011 U.S. Dist. LEXIS 65614, at *6-7 (N.D. Cal. June 21, 19 2011). 20 assigned to the defendants on the day of the purported infringement 21 is sufficient to satisfy the first factor. 22 1-149, No. C-11-02331 LB, 2011 U.S. Dist. LEXIS 85363, at *4-5 23 (N.D. Cal. Aug. 15, 2011) (opinion by Judge Beeler); First Time 24 Videos LLC v. Does 1-37, No. C-11-01675 LB, 2011 U.S. Dist. LEXIS 25 42376, at *5 (N.D. Cal. April 14, 2011) (opinion by Judge Beeler). 26 See Openmind Solutions, Inc. v. Does Others have found that merely identifying the IP addresses See MCGIP, LLC v. Does This Court finds the former standard persuasive. In any 27 event, here, 808 Holdings has submitted a chart listing the unique 28 IP address corresponding to each Defendant on December 29, 2011, as 8 12cv00186 MMA(RBB) 1 well as the city and state in which each IP address is located. 2 (See Mot. Leave Take Early Disc. Attach. #2 Ex. A, at 2-4, ECF No. 3 3.) 4 sufficient specificity. 5 LEXIS 116552, at *6 (concluding that plaintiff satisfied the first 6 factor by identifying the defendants’ IP addresses and by tracing 7 the IP addresses to a point of origin within the State of 8 California); Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at *6 9 (same). 10 11 B. Consequently, Plaintiff has identified the Doe Defendants with See Openmind Solutions, 2011 U.S. Dist. Previous Attempts to Locate Defendants Next, 808 Holdings must describe all prior steps it has taken 12 to identify the Doe Defendants in a good faith effort to locate and 13 serve them. 14 generally maintains that there are no other practical measures 15 available to determine the identities of the Doe Defendants. (Mot. 16 Leave Take Early Disc. Attach #1 Mem. P. & A. 4, ECF No. 3.) "Due 17 to the nature of on-line transactions, Plaintiff has no way of 18 investigating the identities of the potential Defendants except via 19 third-party subpoena to the ISP." 20 See Columbia Ins. Co., 185 F.R.D. at 579. Plaintiff (Id.) In its Motion, 808 Holdings does not describe the efforts it 21 made to learn the IP addresses. 22 addresses from which each Doe Defendant connected to the Internet 23 and recorded the date and time each Defendant accessed Plaintiff’s 24 motion picture. 25 simple search on a publically available database” to determine 26 which ISP controls the particular IP addresses. 27 description is vague and is not supported by any declaration. 28 Openmind Solutions, 2011 U.S. Dist. LEXIS 116552, at *7-10. (See id. at 5.) Plaintiff identified the IP Plaintiff apparently conducted “a 9 (See id.) This See 12cv00186 MMA(RBB) 1 Nonetheless, 808 Holdings appears to have obtained and investigated 2 the data pertaining to the December 29, 2011 alleged infringements, 3 in a good faith effort to locate each Doe Defendant. 4 Sin, Inc. v. Does 1-5698, No. C 11-04397 LB, 2011 U.S. Dist. LEXIS 5 128033, at *5 (N.D. Cal. Nov. 4, 2011); Openmind Solutions, 2011 6 U.S. Dist. LEXIS 85363, at *5; MCGIP, 2011 U.S. Dist. LEXIS 85363, 7 at *5; Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at *7. 8 C. 9 See Digital Ability to Withstand a Motion to Dismiss Finally, to be entitled to early discovery, 808 Holdings must 10 demonstrate that its Complaint can withstand a motion to dismiss. 11 See Columbia Ins. Co., 185 F.R.D. at 579. 12 In its Motion for Leave to Take Early Discovery, the Plaintiff 13 declares that it has stated a prima facie claim for copyright 14 infringement that can withstand a motion to dismiss. 15 Take Early Disc. Attach. #1 Mem. P. & A. 4, ECF No. 3.) 16 to 808 Holdings, it has adequately alleged that Defendants engaged 17 in the unauthorized reproduction and distribution of its motion 18 picture, and that Plaintiff owns the registered copyrights for the 19 motion picture. 20 without a citation to supporting authority showing any “duty” to 21 copyright owners, 808 Holdings contends it has sufficiently pleaded 22 a negligence cause of action based on the Defendants’ failure to 23 secure their Internet access, which enabled the copyright 24 infringements. (Mot. Leave According (Id. (citing 17 U.S.C. §§ 106(1)(3)).) Also, (Id.) 25 1. 26 Exhibit A to Plaintiff’s Motion indicates that most of the Lack of personal jurisdiction 27 potential Defendants are located outside of the state. 28 eighty-three Doe Defendants listed, only twenty-six of the host IP 10 Of the 12cv00186 MMA(RBB) 1 addresses are in California. (See id. Attach. #2 Ex. A, at 2-4, 2 ECF No. 3.) Fifty-four of the IP addresses are outside of 3 California. (Id.) 4 unknown or unspecified. 5 serious question as to whether the claims against the fifty-four 6 out-of-state Doe Defendants, as well as the three Defendants whose 7 locations are unknown, can survive a motion to dismiss for lack of 8 personal jurisdiction. 9 8AB508AB0F9EF8B4CDB14C6248F3 C96C65BEB882 on December 4, 2011, No. The location of three of the IP addresses is (Id. at 2, 4.) At a minimum, there is a See Celestial, Inc. v. Swarm Sharing Hash 10 CV 12-00204 DDP(SSx), 2012 U.S. Dist. LEXIS 41078, at *5 (C.D. Cal. 11 Mar. 23, 2012). 12 The Plaintiff bears the burden of establishing jurisdictional 13 facts. 14 Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th 15 Cir. 1977)). 16 discuss whether this Court has personal jurisdiction over the Doe 17 Defendants. 18 Defendants are subject to personal jurisdiction in this district 19 because they took the "affirmative action of both downloading and 20 uploading" Plaintiff’s motion picture, which “contained Plaintiff's 21 business address in this jurisdiction, . . . .” 22 1.) 23 known . . . that the copyright belonged to an entity residing in 24 this jurisdiction and thus [they] expressly targeted their 25 infringing actions and caused damages" in California. 26 See Columbia Ins. Co., 185 F.R.D. at 578 (citing Wells Yet, remarkably, in its Motion, 808 Holdings does not In its Complaint, however, Plaintiff asserts that the (Compl. 2, ECF No. Thus, Plaintiff maintains that "Defendants knew or should have (Id.) Personal jurisdiction over a nonresident defendant is 27 determined by a two-part test. 28 must comply with the state’s long-arm statute. First, the exercise of jurisdiction 11 Liberty Media 12cv00186 MMA(RBB) 1 Holdings v. Does 1-62, No. 11-CV-575-MMA (NLS), 2012 U.S. Dist. 2 LEXIS 24232, at *6 (S.D. Cal. Feb. 24, 2012). 3 of jurisdiction must satisfy the requirements of federal due 4 process. 5 statute extends jurisdiction to the limits of due process. 6 Code. Civ. P. § 410.10 (West 2004); Dow Chem. Co. v. Calderon, 422 7 F.3d 827, 831 (9th Cir. 2005). 8 jurisdiction over a nonresident defendant, that defendant must have 9 at least ‘minimum contacts’ with the relevant forum such that the Id. at *6-7 (citation omitted). Second, the exercise California's long-arm Cal. “For a court to exercise personal 10 exercise of jurisdiction ‘does not offend traditional notions of 11 fair play and substantial justice.’” 12 Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) (quoting Int’l Shoe 13 Co. v. Washington, 326 U.S. 310, 316 (1945)). Scwarzenegger v. Fred Martin 14 While some courts deciding requests for early discovery have 15 considered whether the IP addresses are located in California, at 16 least one other court has determined that merely identifying the 17 host IP addresses — regardless of location — is sufficient. 18 Compare Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at *6-7 19 (noting that the IP addresses were traced to locations in 20 California), with First Time Videos LLC, 2011 U.S. Dist. LEXIS 21 42376, at *5 (opinion by Judge Beeler) (failing to discuss location 22 of IP addresses). 23 addresses in three subsequent cases. 24 Dist. LEXIS 128033, at *4-5 (failing to address the locations of 25 the IP addresses); MCGIP, 2011 U.S. Dist. LEXIS 85363, at *4-5; VPR 26 Internationale v. Does 1-17, No. C-11-01494 LB, 2011 U.S. Dist. 27 LEXIS 45118, at *5 (N.D. Cal. Apr. 15, 2011). 28 found that without identifying the Doe Defendants, it would be Judge Beeler did not consider the location fo IP 12 See Digital Sin, 2011 U.S. Other courts have 12cv00186 MMA(RBB) 1 premature to decide whether the court lacks personal jurisdiction 2 when the defendants and their connections to California are 3 unknown. 4 at *7-8 (citing IO Group, Inc. v. Does 1-10, No. C 10-03851 SI, 5 2010 U.S. Dist. LEXIS 133717 (N.D. Cal. Dec. 7, 2010); Call of the 6 Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 347 (D.D.C. 7 2011)). 8 9 See Liberty Media Holdings, 2012 U.S. Dist. LEXIS 24232, This Court must balance the need for discovery against the interests of justice, which includes consideration of the prejudice See Semitool, 208 F.R.D. at 10 to the ISP and to the Doe Defendants. 11 276. 12 confidential information about Defendants not subject to the 13 Court’s jurisdiction. 14 the Doe Defendants is proper because the motion picture displayed 15 Plaintiff’s California business address. 16 This is insufficient to support a determination that “‘Defendants 17 expressly aimed their tortious acts against’ a California company, 18 as required for specific jurisdiction.” 19 LEXIS 41078, at *6 (citation omitted). 20 individual in a distant jurisdiction would envision that the acts 21 alleged would subject him to the jurisdiction of this Court. 22 Similarly, any allegation that personal jurisdiction exists because 23 of the swarming activity is inadequate. 24 The judicial process should not be manipulated to obtain The Plaintiff asserts that jurisdiction over (Compl. 2-3, ECF No. 1.) Celestial, 2012 U.S. Dist. It is unlikely that an Id. at *6-7 & n.2. At a minimum, Plaintiff has not alleged sufficient facts to 25 show that it can withstand a motion to dismiss for lack of personal 26 jurisdiction as to the fifty-four Doe Defendants with IP addresses 27 outside of California and the three Doe Defendants whose locations 28 are not identified. See Celestial, 2012 U.S. Dist. LEXIS 41078, at 13 12cv00186 MMA(RBB) 1 *5-6 (denying request for early discovery because the complaint 2 could not withstand a motion to dismiss for lack of personal 3 jurisdiction even though all of the IP addresses were located in 4 California). 5 2. 6 In the same vein, 808 Holdings has not shown that its Improper venue 7 Complaint can survive a motion to dismiss for improper venue as to 8 the Doe Defendants with IP addresses outside the State of 9 California and outside this judicial district. As discussed, 10 fifty-four of the IP addresses are located out-of-state, and the 11 locations for three of the addresses are unknown. 12 Take Early Disc. Attach. #2 Ex. A, at 2-4, ECF No. 3.) 13 of the twenty-six California IP addresses are within the Southern 14 District of California — one IP address is in Fallbrook, 15 California; one is in Coronado, California; and three are in San 16 Diego, California. 17 (See Mot. Leave Only five (Id.) Plaintiff alleges that venue in this district is proper as to 18 all Defendants under 28 U.S.C. §§ 1391(b)(2), 1400(a). 19 3, ECF No. 1.) 20 is not determined be the general provision governing suits in the 21 federal district courts, rather by the venue provision of the 22 Copyright Act.” 23 (N.D. Cal. 2007). 24 instituted in the district in which the defendant or his agent 25 resides or may be found.” 26 individual “resides” for venue purposes in the district of his 27 domicile. 28 110.39[2], at 110-76 (3d ed. 2011). (See Compl. “The venue of suits for infringement of copyright Goldberg v. Cameron, 482 F. Supp. 2d 1136, 1143 Civil actions for copyright infringement “may be 28 U.S.C.A. § 1400(a) (West 2006). An 17 James Wm. Moore, et al., Moore’s Federal Practice, § 14 A defendant is “found” for 12cv00186 MMA(RBB) 1 venue purposes where he is subject to personal jurisdiction. 2 (footnote omitted); see Brayton Purcell LLP v. Recordon & Recordon, 3 606 F.3d 1124, 1126 (9th Cir. 2010) (“This circuit interprets [28 4 U.S.C. § 1400(a)] to allow venue in any judicial district where, if 5 treated as a separate state, the defendant would be subject to 6 personal jurisdiction.”). 7 Plaintiff fails to address venue in its Motion. Id. In the 8 Complaint, however, 808 Holdings asserts venue is proper because 9 although the true identities of the Defendants are unknown, “on 10 information and belief, each Defendant may be found in this 11 District and/or a substantial part of the infringing acts 12 complained of occurred in this District.” 13 This allegation may run afoul of Rule 11 of the Federal Rules of 14 Civil Procedure, given that only five of the eighty-three 15 Defendants have IP addresses in the Southern District of 16 California. 17 (Compl. 3, ECF No. 1.) Plaintiff has not demonstrated that its Complaint can 18 withstand a motion to dismiss for lack of personal jurisdiction as 19 to the fifty-four Doe Defendants located outside of California and 20 the three Defendants in unknown locales. 21 venue in this judicial district would be improper for these 22 Defendants. 23 twenty-one California Defendants located outside of this district 24 are subject to suit in the Southern District of California. 25 it is unclear whether 808 Holdings’s Complaint can survive a motion 26 to dismiss by these twenty-one Doe Defendants. 27 Plaintiff has not shown that it can withstand a motion to dismiss 28 for improper venue pursuant to 28 U.S.C. § 1406(a) for these It also appears that Similarly, the Plaintiff has not shown that the 15 Thus, Consequently, 12cv00186 MMA(RBB) 1 seventy-five Doe Defendants, especially when there is no alternate 2 district to which a transfer would be appropriate. 3 § 1406 (West 2006). See 28 U.S.C.A. 4 3. 5 In addition to personal jurisdiction and venue, 808 Holdings Misjoinder 6 has failed to show that its claims can withstand a motion to 7 dismiss for improper joinder. 8 Celestial, 2012 U.S. Dist. LEXIS 41078, at *7 n.3. 9 Ninth Circuit has not ruled on whether permissive joinder is proper Fed. R. Civ. P. 20(a); see Although the 10 in cases where Doe defendants collectively download and upload the 11 same file using BitTorrent technology, several recent district 12 court cases in the circuit have found joinder improper. 13 Celestial, 2012 U.S. Dist. LEXIS 41078, at *7 n.3 (citing recent 14 cases finding misjoinder); see also Liberty Media Holdings v. Does 15 1-62, 2012 U.S. Dist. LEXIS 24232, at *16-17. 16 pleading and motion, 808 Holdings has not established that the 17 Complaint can withstand a motion to dismiss for the misjoinder of 18 out-of-state and out-of-district Doe Defendants. 19 In its conclusory V. 20 See CONCLUSION 21 22 23 Plaintiff’s Motion for Leave to Take Early Discovery [ECF No. 3] is GRANTED in part and DENIED in part. The Plaintiff has made a sufficient showing to satisfy the 24 three-factor test for only five of the eighty-three Doe Defendants. 25 For these five Defendants, Plaintiff’s Motion is GRANTED. 26 808 Holdings may serve subpoenas on the ISPs for the five 27 Defendants with addresses in this judicial district, seeking 28 identifying information relating to the following “Host IP 16 12cv00186 MMA(RBB) 1 addresses”: (1) 76.176.17.137 (Fallbrook, California), (2) 2 66.75.47.109 (Coronado, California), (3) 68.107.100.235 (San Diego, 3 California), (4) 76.192.216.196 (San Diego, California), and (5) 4 75.25.175.128 (San Diego, California). 5 Disc. Attach. #2 Ex. A, at 2-3, ECF No. 3.) 6 provide a minimum of forty-five days’ notice before any production 7 and shall be limited to one category of documents identifying the 8 particular subscriber or subscribers on the “Hit Date(UTC)” listed 9 on Exhibit A to Plaintiff’s Motion for Leave to Take Early (Mot. Leave Take Early Each subpoena must The requested information should be limited to 10 Discovery. (Id.) 11 the name and addresses of each subscriber. 12 party may seek a protective order if it determines there is a 13 legitimate basis for doing so. Any subpoenaed third The ISPs shall have fourteen calendar days after service of 14 15 the subpoenas to notify the subscribers that their identity has 16 been subpoenaed by Plaintiff. 17 been subpoenaed shall then have thirty calendar days from the date 18 of the notice to seek a protective order or file any other 19 responsive pleading. 20 each individual identified by the ISPs with no more than three 21 interrogatories to determine whether the Internet subscriber is the 22 proper defendant. 23 24 Each subscriber whose identity has If appropriate, 808 Holdings may then serve No depositions are authorized at this time. With respect to the remaining seventy-eight Doe Defendants, Plaintiff’s Motion is DENIED. 25 IT IS SO ORDERED. 26 Dated: May 4, 2012 27 28 RUBEN B. BROOKS United States Magistrate Judge cc: Judge Anello All Parties of Record K:\COMMON\BROOKS\CASES\808HOLDINGS186 (1)\OrderReEarlyDisc (city, state listed) 17 (1).wpd 12cv00186 MMA(RBB)
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