AF Holdings LLC v. Doe, No. 3:2012cv01525 - Document 6 (S.D. Cal. 2012)
Court Description: ORDER granting 5 Renewed Ex Parte Application for Leave to Take Expedited Discovery. Signed by Magistrate Judge Ruben B. Brooks on 10/23/12. (kaj)
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AF Holdings LLC v. Doe Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AF HOLDINGS LLC, 12 ) ) ) ) ) ) ) ) ) ) Plaintiff, 13 v. 14 JOHN DOE, 15 Defendant. Civil No. 12cv01525 LAB(RBB) ORDER GRANTING PLAINTIFF'S RENEWED EX PARTE APPLICATION FOR LEAVE TO TAKE EXPEDITED DISCOVERY [ECF NO. 5] 16 17 Plaintiff's "Renewed Ex Parte Application for Leave to Take 18 Expedited Discovery" was filed on August 13, 2012 [ECF No. 5]. 19 Because no Defendant has been named or served, no opposition or 20 reply briefs have been filed. 21 Renewed Ex Parte Application is GRANTED. 22 23 I. For the reasons discussed below, the PROCEDURAL HISTORY On June 20, 2012, Plaintiff AF Holdings, LLC ("AF Holdings") 24 filed a Complaint with attachments [ECF No. 1]. 25 asserts copyright infringement claims against John Doe 26 ("Defendant"). 27 copied and distributed a video that AF Holdings purports to be the 28 registered owner of, and hold the exclusive rights to. (Compl. 7-10, ECF No. 1.) 1 The Plaintiff Defendant allegedly (Id. at 1- 12cv01525 LAB(RBB) Dockets.Justia.com 1 2.) 2 infringement, stating that on May 23, 2012, Defendant reproduced 3 and distributed the copyrighted video through the Internet without 4 Plaintiff's authorization. 5 pleads contributory copyright infringement, asserting that 6 Defendant illegally obtained the video and assisted others in doing 7 the same. 8 was negligent in failing to adequately secure his or her Internet 9 access to prevent its unlawful use by others. 10 First, the Plaintiff alleges a claim for direct copyright (Id. at 1, 7-8.) (Id. at 1, 7.) Second, AF Holdings Third, Plaintiff contends Defendant (Id. at 9.) Eight days after filing the Complaint, on June 28, 2012, AF 11 Holdings filed an "Ex Parte Application for Leave to Take Expedited 12 Discovery." 13 sought permission to take "early discovery" from the Doe 14 Defendant's Internet Service Provider ("ISP"), Cox Communications, 15 to ascertain the Defendant's identity. 16 Attach. #1 Decl. Hansmeier 10 ("Plaintiff needs early discovery 17 from the ISPs, so that the name and address of the accused 18 infringer can be obtained by Plaintiff . . . .").) 19 (Pl.'s Ex Parte Appl. 1, ECF No. 3.) The Plaintiff (Id. at 1-2; see id. The "Ex Parte Application for Leave to Take Expedited 20 Discovery" was denied on July 25, 2012 [ECF No. 4]. 21 determined that emergency consideration was not necessary because 22 Cox Communications maintains subscriber information for three 23 years. 24 also held that AF Holdings failed to discuss whether its request 25 was a proper subject for ex parte consideration. 26 The Court (Order Den. Pl.'s Ex Parte Appl. 4, ECF No. 4.) The Court (Id. at 3.) On August 13, 2012, Plaintiff filed a "Renewed Ex Parte 27 Application for Leave to Take Expedited Discovery" [ECF No. 5]. 28 There, AF Holdings argues that its original ex parte application 2 12cv01525 LAB(RBB) 1 seeking expedited discovery was proper and that the "IP assignment 2 logs" it seeks will be destroyed within six months. 3 Ex Parte Appl. 2-3, ECF No. 5.) 4 is more properly construed as an application for reconsideration of 5 the Court's July 25, 2012 "Order Denying Plaintiff's Ex Parte 6 Application for Leave to Take Expedited Discovery" [ECF No. 4]. 7 II. 8 9 (Pl.'s Renewed The Court finds that this document APPLICATION FOR RECONSIDERATION Motions or applications for reconsideration of prior orders are brought pursuant to Civil Local Rule 7.1(i). S.D. Cal. Civ. R. 10 7.1(i). 11 same relief as that previously denied must set forth "(1) when and 12 to what judge the [prior] application was made, (2) what ruling or 13 decision or order was made thereon, and (3) what new or different 14 facts and circumstances are claimed to exist which did not exist, 15 or were not shown, upon such prior application." 16 In an application for reconsideration, a party seeking the Id. at 7.1(i)(1). Here, Plaintiff seeks the same relief (expedited discovery) 17 that was previously denied. 18 No. 5; Order Den. Pl.'s Ex Parte Appl. 3, ECF No. 4.) 19 that its original ex parte application was denied by this Court 20 because AF Holdings failed to demonstrate that its request should 21 be considered on an ex parte basis, and because the subscriber 22 information did not face "imminent destruction." 23 Parte Appl. 1, ECF No. 5.) 24 information required for reconsideration pursuant to subsections 25 one and two of Local Rule 7.1(i)(1). 26 that new or different circumstances merit reconsideration of the 27 Court's ruling. 28 // (Pl.'s Renewed Ex Parte Appl. 1, ECF It contends (Pl.'s Renewed Ex Accordingly, Plaintiff has provided the 3 Next, Plaintiff must prove 12cv01525 LAB(RBB) 1 2 3 4 A. "New or Different Facts and Circumstances" 1. Whether the application was a proper subject for ex parte consideration AF Holdings maintains that its original application was 5 properly designated as "ex parte" because Defendant's identity is 6 unknown, and he therefore cannot be put on notice of the 7 application. 8 his IP address. 9 Defendant's identity is to issue a subpoena to Defendant's Internet 10 Service Provider, which is the sole entity that is in possession of 11 Defendant's identifying information." 12 that because there is no known party to oppose the application, ex 13 parte relief is appropriate. (Id. at 2.) (Id.) Currently, Defendant is only known by "The only way Plaintiff can ascertain the (Id.) Plaintiff concludes (Id.) 14 In the Order Denying Plaintiff's Ex Parte Application for 15 Leave to Take Expedited Discovery, the Court observed, "AF Holdings 16 does not discuss whether its request is a proper subject for ex 17 parte consideration or why the regular noticed motion procedures 18 must be bypassed." 19 Leave 3, ECF No. 4.) 20 AF Holdings attempts to address these shortcomings. 21 (Order Den. Pl.'s Ex Parte Application for In Plaintiff's Renewed Ex Parte Application, AF Holdings makes many of the same statements in its second 22 ex parte application as it did in the first. 23 Parte Appl. 4, 10-11, ECF No. 3 (stating that Plaintiff cannot name 24 or serve an unknown Defendant; AF Holdings needs the identifying 25 information sought in its motion; and John Doe's identity is 26 unknown); id. Attach. #1 Decl. Hansmeier 9 (stating that the only 27 information known about John Doe is his IP address) with Pl.'s 28 Renewed Ex Parte Appl. 2, ECF No. 5 (stating that Defendant's 4 (Compare Pl.'s Ex 12cv01525 LAB(RBB) 1 identity is unknown; Defendant can only be identified by his IP 2 address; Defendant cannot be put on notice or oppose the motion; 3 and a subpoena is needed to identify the Defendant).) 4 of Plaintiff's argument is that because it did not know the 5 identity of John Doe, it did not believe that the Court's regular 6 noticed motion procedure should apply. 7 application seeks priority over regularly scheduled motions, so the 8 basis for granting Plaintiff that priority must be considered. 9 2. 10 The thrust Even so, an ex parte Whether the "IP assignment logs" face imminent destruction 11 Next, Plaintiff asserts that it did not misrepresent in its 12 original application that the information it seeks faces imminent 13 destruction. 14 denied on the basis that no emergency relief was required because 15 Cox Communications maintains subscriber information for three 16 years. 17 4).) 18 Logs" which Cox Communications only maintains for six months. 19 (Pl.'s Renewed Ex Parte Appl. 3, ECF No. 5 (citing id. Ex. A).) 20 "Several months have already passed since Plaintiff observed the 21 Defendant's infringing conduct over his IP address." 22 Compl., ECF No. 1).) 23 seeks is therefore "under imminent threat of destruction." (Id. at 3.) The original ex parte application was (Id. (citing Order Den. Pl.'s Ex Parte Appl. 4, ECF No. AF Holdings now clarifies that it seeks the "IP Assignment (Id. (citing AF Holdings urges that the information it (Id.) 24 As discussed in the Court's prior order, "Ex parte 25 applications are a form of emergency relief that will only be 26 granted upon an adequate showing of good cause or irreparable 27 injury to the party seeking relief." 28 No. CV 07-1797-VBF(RCx), 2007 U.S. Dist. LEXIS 100716, at *2 (C.D. 5 Clark v. Time Warner Cable, 12cv01525 LAB(RBB) 1 Cal. May 3, 2007) (citing Mission Power Eng’g Co. v. Cont'l Cas. 2 Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995)). 3 must be "without fault" in creating the need for ex parte relief or 4 establish that the "crisis [necessitating the ex parte application] 5 occurred as a result of excusable neglect." 6 application seeks to bypass the regular noticed motion procedure; 7 consequently, the party requesting ex parte relief must establish a 8 basis for giving the application preference. 9 States District Court Southern District of California Civil Local The moving party Id. An ex parte See id. United 10 Rule 7.1(e) outlines the procedures for filing regular motions. 11 Kashani v. Adams, No. 08cv0268 JM(AJB), 2009 U.S. Dist. LEXIS 12 34153, at *4 (S.D. Cal. Apr. 21, 2009) (citing S.D. Cal. Civ. R. 13 7.1(e)). 14 circumstances. 15 Ex parte proceedings are reserved for emergency Id. Plaintiff essentially argues that new or different facts and 16 circumstances exist because the relevant information will be 17 destroyed in six months rather than three years. 18 Parte Appl. 3, ECF No. 5.) 19 illegally downloaded Plaintiff's video on May 23, 2012. 20 Compl. 6, ECF No. 1.) 21 maintains Internet Protocol address log files for 180 days, AF 22 Holdings satisfies the standard for ex parte relief. 23 2007 U.S. Dist. LEXIS 100716, at *2; see also Mission Power Eng’g 24 Co., 883 F. Supp. at 492 ("In other words, [the ex parte 25 application] must show why the moving party should be allowed to go 26 to the head of the line in front of all other litigants and receive 27 special treatment.") 28 noticed motion to be briefed and ruled upon. (Pl.'s Renewed Ex It alleges that Defendant John Doe (See Because the Internet Service Provider See Clark, Ordinarily, six months is adequate time for a 6 "'Ex parte 12cv01525 LAB(RBB) 1 applications are not intended to save the day for parties who have 2 failed to present requests when they should have . . . .'" 3 Power Eng'g Co., 883 F. Supp. at 493 (quoting In re Intermagnetics 4 Am. Inc., 101 B.R. 191, 193 (C.D. Cal. 1989)). 5 Plaintiff's missteps can be attributed to excusable neglect. 6 Clark, 2007 U.S. Dist. LEXIS 100716, at 2. 7 request for leave to take expedited discovery will be granted. 8 III. 9 Mission Nevertheless, See Accordingly, the CONCLUSION AF Holdings has adequately demonstrated that "new or different 10 facts and circumstances" merit reconsideration of the Court's 11 "Order Denying Plaintiff's Ex Parte Application for Leave to Take 12 Expedited Discovery" [ECF No. 4]. 13 Application for Leave to Take Expedited Discovery" [ECF No. 5] is 14 therefore GRANTED. 15 Defendant John Doe's Internet Service Provider to obtain the 16 subscriber's name, address, length of service, and telephone number 17 associated with IP address 68.105.113.37 on May 23, 2012. 18 Plaintiff’s "Renewed Ex Parte It is granted leave to serve a subpoena on IT IS SO ORDERED. 19 20 Dated: October 23, 2012 RUBEN B. BROOKS United States Magistrate Judge 21 22 cc: Judge Burns All Parties of Record 23 24 25 26 27 28 I:\Chambers Brooks\CASES\AF HOLDINGS1525\Order re Renewed Ex Parte Appl. Leave Take Expedited Disc.wpd 7 12cv01525 LAB(RBB)
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