Ingenuity13 LLC v. Doe, No. 3:2012cv02093 - Document 4 (S.D. Cal. 2012)
Court Description: ORDER Granting in Part 3 Ex Parte Motion for Expedited Discovery. Plaintiff shall serve a copy of this order with any subpoena served upon Cox Communications pursuant to this Order. Cox Communications, in turn, must provide a copy of this Order along with the required notice to the subscriber whose identity is sought pursuant to this Order. Signed by Magistrate Judge Jan M. Adler on 9/17/2012. (leh)
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Ingenuity13 LLC v. Doe Doc. 4 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 INGENUITY13 LLC, Plaintiff, 11 12 v. 13 JOHN DOE, Defendant. 14 15 ) ) ) ) ) ) ) ) ) ) ) Case No. 12-CV-2093-MMA (JMA) ORDER GRANTING IN PART PLAINTIFF’S EX PARTE APPLICATION FOR LEAVE TO TAKE EXPEDITED DISCOVERY [Doc. No. 3] 16 Before the Court is an Ex Parte Application for Leave to Take Expedited 17 18 Discovery filed by Plaintiff Ingenuity13 LLC. Doc. No. 3. For the reasons discussed 19 below, Plaintiff’s application is GRANTED IN PART. 20 I. PROCEDURAL HISTORY 21 On August 23, 2012, Plaintiff filed a Complaint against Defendant John Doe 22 (“Defendant”). Compl., Doc. No. 1. Plaintiff purports to be the registered owner of 23 United States Copyright Registration Number PA0001791654 for the adult 24 entertainment video entitled “Five Fan Favorites.” Compl., ¶¶ 2-3 & Ex. A. The 25 Complaint alleges claims for copyright infringement, contributory infringement, and 26 negligence. Plaintiff alleges that Defendant, using IP address 72.220.222.3, without 27 Plaintiff’s authorization or license, intentionally download a torrent file particular to 28 Plaintiff’s video, purposefully loaded that torrent file into his BitTorrent client, entered a 12cv2093 Dockets.Justia.com 1 BitTorrent swarm particular to Plaintiff’s video, and reproduced and distributed the video 2 to numerous third parties. Id., ¶ 22-23. Plaintiff’s investigators detected Defendant’s 3 alleged illegal download on July 6, 2012. Id., ¶ 23. 4 Plaintiff seeks leave of court to serve a Rule 45 subpoena on Defendant’s 5 internet service provider (“ISP”), Cox Communications, to discover Defendant’s name, 6 address, telephone number, e-mail address, and Media Access Control (“MAC”) 7 address. Appl., Proposed Order. 8 II. 9 LEGAL STANDARDS Generally, discovery is not permitted without a court order before the parties 10 have conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 11 26(d)(1). Yet, “in rare cases, courts have made exceptions, permitting limited discovery 12 to ensue after filing of the complaint to permit the plaintiff to learn the identifying facts 13 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 14 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th 15 Cir. 1980)). Courts grant these requests when the moving party shows good cause for 16 the early discovery. Semitool, Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 275-76 17 (N.D. Cal. 2002). 18 The Ninth Circuit has held that when the defendants’ identities are unknown at 19 the time the complaint is filed, courts may grant plaintiffs leave to take early discovery to 20 determine the defendants’ identities “unless it is clear that discovery would not uncover 21 the identities, or that the complaint would be dismissed on other grounds.” Gillespie, 22 629 F.2d at 642. A district court’s decision to grant discovery to determine jurisdictional 23 facts is a matter of discretion. Columbia Ins. Co., 185 F.R.D. at 578. 24 District courts apply a three-factor test when considering motions for early 25 discovery to identify certain defendants. Id. at 578-80. First, the plaintiff should “identify 26 the missing party with sufficient specificity such that the Court can determine that 27 defendant is a real person or entity who could be sued in federal court.” Id. at 578. 28 Second, the movant must describe “all previous steps taken to locate the elusive 2 12cv2093 1 defendant” to ensure that the plaintiff has made a good faith effort to identify and serve 2 process on the defendant. Id. at 579. Third, the plaintiff should establish that its suit 3 against the defendant could withstand a motion to dismiss. Id. “[T]o prevent abuse of 4 this extraordinary application of the discovery process and to ensure that the plaintiff 5 has standing,” the plaintiff must show that some act giving rise to liability actually 6 occurred and that the discovery is aimed at identifying the person who actually 7 committed the act. Id. at 579-80. 8 III. 9 10 DISCUSSION A. Identification of Missing Parties with Sufficient Specificity First, Plaintiff must identify Defendant with enough specificity to enable the Court 11 to determine that the defendant is a real person or entity who would be subject to the 12 jurisdiction of this Court. Id. at 578. Some district courts in the Ninth Circuit have 13 determined that a plaintiff identifies Doe defendants with sufficient specificity by 14 providing the unique IP address assigned to an individual defendant on the day of the 15 allegedly infringing conduct, and by using “geolocation technology” to trace the IP 16 address to a physical point of origin. See Openmind Solutions, Inc. v. Does 1-39, No. 17 C-11-33-11 MEJ, 2011 U.S. Dist. LEXIS 116552, at *5-6 (N.D. Cal. Oct. 7, 2011); Pink 18 Lotus Entm’t v. Does 1-46, No. C-11-02263 HRL, 2011 U.S. Dist. LEXIS 65614, at *6-7 19 (N.D. Cal. June 21, 2011). Others have found that merely identifying the IP addresses 20 assigned to the defendants on the day of the purported infringement is sufficient to 21 satisfy the first factor. See MCIP, LLC v. Does 1-149, No. C-11-02331 LB, 2011 U.S. 22 Dist. LEXIS 85363, at *4-5 (N.D. Cal. Aug. 15, 2011); First Time Videos, LLC v. Does 1- 23 37, No. C-11-01675 LB, 2011 U.S. Dist. LEXIS 42376, at *5 (N.D. Cal. April 14, 2011). 24 This Court, like other courts in this district, finds the former standard persuasive. 25 See, e.g., 808 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing Hash, No. 12-CV- 26 0186 MMA (RBB), 2012 U.S. Dist. LEXIS 62980, at *10-11 (S.D. Cal. May 8, 2012). 27 Here, Plaintiff’s forensic investigator, Peter Hansmeier, a technician with 6881 28 Forensics, LLC (“6881"), used his company’s proprietary software to obtain the IP 3 12cv2093 1 address of the computer used by Defendant, and conducted a search using publicly 2 available reverse-lookup databases on the internet to identify the ISP used by 3 Defendant’s computer, the city (or county) and state in which the computer was located, 4 and the date and time the IP address was obtained. Hansmeier Decl. in Supp. of Appl., 5 ¶¶ 20, 24; Compl., ¶ 6. Using this information, Hansmeier determined the ISP that had 6 provided the IP address associated with Defendant was Cox Communications. 7 Hansmeier Decl., ¶ 24. Consequently, Plaintiff has identified Defendant with sufficient 8 specificity and has satisfied the first factor of the test for permitting early discovery.1 9 10 B. Previous Attempts to Locate Defendant Next, Plaintiff must identify all previous steps taken to identify the Doe Defendant 11 in a good faith effort to locate and serve them. See Columbia Ins. Co., 185 F.R.D. at 12 579. According to Hansmeier, “Without expedited discovery in this case against John 13 Doe’s ISP, Plaintiff will have no means of serving John Doe with the complaint and 14 summons in this case . . . .” Hansmeier Decl., ¶ 28. This is the case because although 15 6881's forensic software enables it to observe allegedly infringing activities, it does not 16 allow access to an alleged infringer’s computer to obtain identifying personal 17 information, nor does it allow 6881 to upload a file onto the alleged infringer’s computer 18 or communicate with it in any way. Id., ¶ 21. Accordingly, Plaintiff appears to have 19 investigated and obtained the data pertaining to the alleged infringement in a good faith 20 effort to locate Defendant. See Digital Sin, Inc. v. Does 1-5698, No. C-11-04397 LB, 21 2011 U.S. Dist. LEXIS 128033, at *5 (N.D. Cal. Nov. 4, 2011); Openmind Solutions, 22 2011 U.S. Dist. LEXIS 116552, at *7-8; Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS 23 65614, at *5; MCGIP, 2011 U.S. Dist. LEXIS 85363, at *5. 24 C. 25 Lastly, to be entitled to early discovery, Plaintiff must demonstrate that the 26 Ability to Withstand a Motion to Dismiss Complaint can withstand a motion to dismiss. See Columbia Ins. Co., 185 F.R.D. at 27 1 28 Although Plaintiff did not specify the city or county associated with Defendant’s IP address, the Court, using publicly available software, ascertained that Defendant’s IP address is in El Cajon, California. 4 12cv2093 1 2 3 579. 1. Ability to State a Claim Upon Which Relief Can Be Granted Plaintiff alleges that it is the owner of the copyright for the work at issue, an adult 4 entertainment video entitled “Five Fan Favorites,” and that by using the BitTorrent 5 protocol and process described, Defendant downloaded a torrent file particular to 6 Plaintiff’s video, loaded that file into his BitTorrent client, entered a BitTorrent swarm 7 particular to Plaintiff’s video, and reproduced and distributed the video to numerous third 8 parties. Compl., ¶ 22. Plaintiff also alleges that Defendant failed to secure his internet 9 access account, thereby allowing for its illegal use, and was thus complicit in the actions 10 of any third party who used Defendant’s internet connection to illegally copy and share 11 Plaintiff’s video. Id., ¶¶ 41-45. The Court finds Plaintiff has alleged a prima facie case 12 of copyright infringement, contributory infringement, and negligence against Defendant. 13 2. Personal Jurisdiction 14 Plaintiff bears the burden of establishing jurisdictional facts. See Columbia Ins. 15 Co., 185 F.R.D. at 578. Plaintiff alleges that Defendant either resides in or committed 16 copyright infringement in the State of California, and that Plaintiff used geolocation 17 technology to trace Defendant’s IP address to a point of origin within the State of 18 California. Compl., ¶ 6. Accordingly, Plaintiff has alleged sufficient facts to show it can 19 likely withstand a motion to dismiss for lack of personal jurisdiction. See, e.g., Pink 20 Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at *6-7. 21 22 3. Venue Plaintiff alleges that venue in this District is proper as to Defendant under 28 23 U.S.C. §§ 1391(b) and 1400(a). Compl., ¶ 7. “The venue of suits for infringement of 24 copyright is not determined by the general provision governing suits in the federal 25 district courts, rather by the venue provision of the Copyright Act.” Goldberg v. 26 Cameron, 482 F. Supp. 2d 1136, 1143 (N.D. Cal. 2007). Civil actions for copyright 27 infringement “may be instituted in the district in which defendant or his agent resides or 28 may be found.” 28 U.S.C.A. § 1400(1) (West 2006). An individual “resides” for venue 5 12cv2093 1 purposes in the district of his domicile. 17 James Wm. Moore, et al., Moore’s Federal 2 Practice, § 110.39[2], at 110-76 (3d ed. 2011). A defendant is “found” for venue 3 purposes where he is subject to personal jurisdiction. Id. (footnote omitted); see also 4 Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1126 (9th Cir. 2010) 5 (“This circuit interprets [28 U.S.C. § 1400(a)] to allow venue in any judicial district 6 where, if treated as a separate state, the defendant would be subject to personal 7 jurisdiction.”). Plaintiff alleges venue is proper because although the true identity of 8 Defendant is unknown, Defendant resides in this District, may be found in this District, 9 or a substantial part of the infringing acts complained of occurred in this District. 10 Compl., ¶ 7. Defendant appears to have an IP addresses in this District. See supra, 11 fn.1. Thus, venue appears to be proper. 12 Accordingly, Plaintiff’s Complaint can likely survive a motion to dismiss. 13 IV. 14 For the reasons set forth above, it is hereby ordered that Plaintiff’s Application is 15 16 CONCLUSION GRANTED IN PART as follows: 1. Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45 upon Cox 17 Communications for the sole purpose of obtaining the name and address only of 18 Defendant John Doe, based on the IP address listed for him in the complaint -- 19 72.220.222.3. Cox Communications shall have fourteen (14) calendar days after 20 service of the subpoena upon it to notify its subscriber that his/her identity has been 21 subpoenaed by Plaintiff. The subscriber whose identity has been subpoenaed shall 22 have thirty (30) calendar days from the date of such notice to challenge the disclosure 23 to Plaintiff by filing an appropriate pleading with this Court contesting the subpoena. If 24 Cox Communications intends to move to quash the subpoena, it must do so prior to the 25 return date of the subpoena. The return date of the subpoena must allow for at least 26 forty-five (45) days from service to production. If a motion to quash or other customer 27 challenge is brought, Cox Communications must preserve the information sought by 28 Plaintiff pending resolution of the motion or challenge. 6 12cv2093 1 2. The subpoena shall not seek Defendant’s telephone number, email 2 address, or Media Access Control (MAC) address, as this information is not necessary 3 for Plaintiff to identify and serve Defendant. 4 5 6 3. Plaintiff may use the information disclosed pursuant to the subpoena only in pursuing this litigation. 4. Plaintiff shall serve a copy of this order with any subpoena served upon 7 Cox Communications pursuant to this Order. Cox Communications, in turn, must 8 provide a copy of this Order along with the required notice to the subscriber whose 9 identity is sought pursuant to this Order. 10 11 IT IS SO ORDERED. DATED: September 17, 2012 12 Jan M. Adler U.S. Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 12cv2093
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