Dallas Buyers Club, LLC v. DOE-72.197.35.160, No. 3:2015cv01614 - Document 6 (S.D. Cal. 2015)

Court Description: ORDER granting Plaintiff's 5 Ex Parte Motion to Expedite Discovery. Plaintiff may serve a subpoena on Dft ISP, Cox Communications seeking the name and address of the subscriber assigned to Dft's IP address. No deposition or other discovery is authorized at this time. Signed by Magistrate Judge David H. Bartick on 8/19/2015. (jah)
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Dallas Buyers Club, LLC v. DOE-72.197.35.160 Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Case No.: 15cv1614-BAS (DHB) DALLAS BUYERS CLUB, LLC, a Texas limited liability company, Plaintiff, v. ORDER GRANTING PLAINTIFF'S EX PARTE MOTION TO EXPEDITE DISCOVERY DOE-72.197.35.160, [ECF No. 5] 13 14 15 Defendant. 16 17 18 On July 24, 2015, Plaintiff Dallas Buyers Club, LLC filed an Ex Parte Motion for 19 Expedited Discovery. (ECF No. 5.) Because Defendant has not been named or served, 20 no opposition or reply briefs have been filed. For the reasons discussed below, Plaintiff’s 21 Motion is GRANTED. 22 I. PROCEDURAL HISTORY 23 On July 21, 2015, Plaintiff filed a Complaint against Doe, a subscriber assigned IP 24 address 72.197.35.160 (“Defendant”). (ECF No. 1.) Plaintiff alleges a single cause of 25 action for direct copyright infringement. 26 copyright holder of the motion picture Dallas Buyers Club. (See ECF No. 1 at ¶¶ 4, 6.) 27 Plaintiff contends Defendant used the BitTorrent file distribution network to copy and 28 distribute Plaintiff’s copyrighted work through the Internet without Plaintiff’s permission. Plaintiff asserts that it is the registered 1 15cv1614-BAS (DHB) Dockets.Justia.com 1 (ECF No. 1 at ¶ 35.) 2 On July 24, 2015, Plaintiff filed the instant Motion in which Plaintiff seeks leave to 3 take early discovery to learn the identity of Defendant from his or her Internet Service 4 Provider (“ISP”), Cox Communications. Specifically, Plaintiff seeks an order permitting 5 it to serve a Rule 45 subpoena on Cox Communications for the identity of the account 6 holder assigned to Defendant’s IP address, and for further reasonable discovery as may 7 be needed. 8 II. LEGAL STANDARDS 9 Generally, discovery is not permitted without a court order before the parties have 10 conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). 11 “[H]owever, in rare cases, courts have made exceptions, permitting limited discovery to 12 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, 185 14 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th 15 Cir. 1980)). Requests for early or expedited discovery are granted upon a showing by the 16 moving party of good cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 17 273, 275-76 (N.D. Cal. 2002) (applying “the conventional standard of good cause in 18 evaluating Plaintiff’s request for expedited discovery”). 19 “The Ninth Circuit has held that when the defendants’ identities are unknown at 20 the time the complaint is filed, courts may grant plaintiffs leave to take early discovery to 21 determine the defendants’ identities ‘unless it is clear that discovery would not uncover 22 the identities, or that the complaint would be dismissed on other grounds.’” 808 23 Holdings, LLC v. Collective of December 29, 2011 Sharing Hash, No. 12-cv-0186 MMA 24 (RBB), 2012 WL 1648838, *3 (S.D. Cal. May 4, 2012) (quoting Gillespie, 629 F.2d at 25 642). “A district court’s decision to grant discovery to determine jurisdictional facts is a 26 matter of discretion.” Columbia Ins., 185 F.R.D. at 578 (citing Wells Fargo & Co. v. 27 Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977)). 28 /// 2 15cv1614-BAS (DHB) 1 District courts apply a three-factor test when considering motions for early 2 discovery to identify Doe defendants. Id. at 578-80. First, “the plaintiff should identify 3 the missing party with sufficient specificity such that the Court can determine that 4 defendant is a real person or entity who could be sued in federal court.” Id. at 578. 5 Second, the plaintiff “should identify all previous steps taken to locate the elusive 6 defendant” to ensure that the plaintiff has made a good faith effort to identify and serve 7 process on the defendant. Id. at 579. Third, the “plaintiff should establish to the Court’s 8 satisfaction that plaintiff’s suit against defendant could withstand a motion to dismiss.” 9 Id. (citing Gillespie, 629 F.2d at 642). Further “the plaintiff should file a request for 10 discovery with the Court, along with a statement of reasons justifying the specific 11 discovery requested as well as identification of a limited number of persons or entities on 12 whom discovery process might be served and for which there is a reasonable likelihood 13 that the discovery process will lead to identifying information about defendant that would 14 make service of process possible.” Id. at 580. 15 16 III. ANALYSIS A. Identification of Missing Party with Sufficient Specificity 17 First, Plaintiff must identify Defendant with enough specificity to enable the Court 18 to determine that Defendant is a real person or entity who would be subject to the 19 jurisdiction of this Court. Columbia Ins., 185 F.R.D. at 578. This Court has previously 20 determined that “a plaintiff identifies Doe defendants with sufficient specificity by 21 providing the unique IP addresses assigned to an individual defendant on the day of the 22 allegedly infringing conduct, and by using ‘geolocation technology’ to trace the IP 23 addresses to a physical point of origin.” 808 Holdings, 2012 WL 1648838, at *4 (quoting 24 OpenMind Solutions, Inc. v. Does 1-39, No. C-11-3311 MEJ, 2011 WL 4715200 (N.D. 25 Cal. Oct. 7, 2011); Pink Lotus Entm’t, LLC v. Does 1-46, No. C-11-02263 HRL, 2011 26 WL 2470986 (N.D. Cal. June 21, 2011)). 27 Here, Plaintiff has filed a chart that lists the unique IP address corresponding to 28 Defendant, and the dates and times of the purportedly infringing activity, as well as the 3 15cv1614-BAS (DHB) 1 city in which the IP address is located. (ECF No. 1-2.) Consequently, Plaintiff has 2 identified Defendant with sufficient specificity. See OpenMind Solutions, 2011 WL 3 4715200, at *2 (concluding that plaintiff satisfied the first factor by identifying the 4 defendants’ IP addresses and by tracing the IP addresses to a point of origin within the 5 State of California); Pink Lotus Entm’t, 2011 WL 2470986, at *3 (same). In addition, 6 Plaintiff has presented evidence that the identified IP address is physically located in this 7 district. (See ECF No. 1-2.) 8 B. Previous Attempts to Locate Defendant 9 Next, Plaintiff must describe all prior steps it has taken to identify the defendant in 10 a good faith effort to locate and serve him or her. See Columbia Ins., 185 F.R.D. at 579. 11 Plaintiff states it has been able to identify much about Defendant, including which ISP 12 provider he or she uses, where he or she is generally located, and what software he or she 13 used to commit the alleged acts of infringement. (ECF No. 5-1 at 4.) However, Plaintiff 14 generally maintains that there are no other practical measures available to determine the 15 actual identity of Defendant. Thus, Plaintiff appears to have obtained and investigated 16 the available data pertaining to the alleged infringement in a good faith effort to locate 17 Defendant. See OpenMind Solutions, 2011 WL 4715200, at *3; MCGIP, LLC v. Does 1- 18 149, 2011 WL 3607666, *2 (N.D. Cal. Aug. 3, 2011); Pink Lotus Entm’t, 2011 WL 19 2470986, at *3. 20 C. Ability to Withstand a Motion to Dismiss 21 “Finally, to be entitled to early discovery, [Plaintiff] must demonstrate that its 22 Complaint can withstand a motion to dismiss.” 808 Holdings, 2012 WL 1648838 at *5 23 (citing Columbia Ins., 185 F.R.D. at 579). 24 1. 25 In order to establish copyright infringement, a plaintiff must show: (1) ownership 26 of a valid copyright, and (2) that the defendant violated the copyright owner’s exclusive 27 rights under the Copyright Act. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 28 2004); 17 U.S.C. § 501(a). Here, Plaintiff alleges it owns the registered copyright of the Ability to State a Claim Upon Which Relief Can Be Granted 4 15cv1614-BAS (DHB) 1 work that Defendant allegedly copied and distributed using the BitTorrent file 2 distribution network. (ECF No. 1 at ¶¶ 4, 6.) Plaintiff also alleges it did not permit or 3 consent to Defendant’s copying or distribution of its work. (Id. at ¶ 35.) 4 Plaintiff has stated a prima facie claim for copyright infringement that can withstand a 5 motion to dismiss. It appears 6 2. 7 Plaintiff bears the burden of establishing jurisdictional facts. See Columbia Ins. 8 Co., 185 F.R.D. at 578. Plaintiff’s motion does not discuss whether this Court has 9 personal jurisdiction over Defendant. Personal Jurisdiction However, Plaintiff’s Complaint indicates that 10 Defendant is located in this judicial district. (See ECF No. 1-2 (showing the IP address 11 associated with Defendant is located in San Diego). The Complaint also alleges that 12 Defendant’s acts of copyright infringement occurred using an IP address traced to a 13 physical location in this district, and that Defendant is believed to reside in California. 14 (ECF No. 1. at ¶ 3, 14.) 15 Therefore, at this early juncture, it appears Plaintiff has alleged sufficient facts to 16 show it can likely withstand a motion to dismiss for lack of personal jurisdiction because 17 Defendant’s IP address was traced to a location in this district. See 808 Holdings, 2012 18 WL 1648838 at *6-7. 19 2. 20 “The venue of suits for infringement of copyright is not determined by the general 21 provision governing suits in the federal district courts, rather by the venue provision of 22 the Copyright Act.” Goldberg v. Cameron, 482 F. Supp. 2d 1136, 1143 (N.D. Cal. 2007) 23 (citing 28 U.S.C. § 1400(a); Lumiere v. Mae Edna Wilder, Inc., 261 U.S. 174, 176 24 (1923)). “In copyright infringement actions, venue is proper ‘in the district in which the 25 defendant or his agent resides or may be found.’” Brayton Purcell LLP v. Recordon & 26 Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010) (quoting 28 U.S.C. § 1400(a)). “The 27 Ninth Circuit interprets this statutory provision to allow venue ‘in any judicial district in 28 which the defendant would be amendable to personal jurisdiction if the district were a Venue 5 15cv1614-BAS (DHB) 1 separate state.’” Id. 2 Plaintiff does not address venue in its motion. In the Complaint, however, Plaintiff 3 alleges venue is proper because although Defendant’s true identity is unknown, 4 Defendant is believed to reside (and therefore can be found in this district), and a 5 substantial part of the infringing acts complained of occurred in this district. (ECF No. 1 6 at ¶ 3, 13.) Defendant appears to have an IP address in this district. Accordingly, 7 Plaintiff’s Complaint can likely survive a motion to dismiss. 8 D. Specific Discovery Request 9 Here, Plaintiff has not provided a proposed subpoena or proposed discovery 10 requests. However, Plaintiff indicates that it will seek to obtain the true name, address, 11 telephone number and email address of the subscriber associated with Defendant’s IP 12 address from Cox Communications. Plaintiff also requests leave to conduct a deposition 13 of the subscriber identified by Cox Communications if needed to find the true identity of 14 the actual Defendant. 15 The Court finds Plaintiff has shown good cause to subpoena records from Cox 16 Communication for the identity of the subscriber assigned to Defendant’s IP address. 17 However, the subpoena to Cox Communications should be limited to a request for the 18 subscriber’s name and address. That information should be sufficient for Plaintiff to be 19 able to identify and serve Defendant. Therefore, Plaintiff is not permitted to request the 20 subscriber’s telephone number or email address. Further, once Plaintiff is able to identify 21 and serve Defendant, the need for early discovery ceases. 22 request for leave to conduct further discovery, including a deposition of the subscriber is 23 denied at this time. If Plaintiff is unable to identify and serve Defendant after receiving a 24 response to the subpoena to Cox Communications, Plaintiff may seek leave from the 25 Court to pursue additional discovery. 26 E. Accordingly, Plaintiff’s Cable Privacy Act 27 Finally, the Court must consider the requirements of the Cable Privacy Act, 47 28 U.S.C. § 551. The Act generally prohibits cable operators from disclosing personally 6 15cv1614-BAS (DHB) 1 identifiable information regarding subscribers without the prior written or electronic 2 consent of the subscriber. 47 U.S.C. § 551(c)(1). A cable operator, however, may 3 disclose such information if the disclosure is made pursuant to a court order and the cable 4 operator provides the subscriber with notice of the order. 47 U.S.C. § 551(c)(2)(B). The 5 ISP that Plaintiff intends to subpoena in this case is a cable operator within the meaning 6 of the Act. 7 IV. CONCLUSION 8 9 For the reasons set forth above, Plaintiff’s Ex Parte Motion for Expedited Discovery is GRANTED, as follows: 10 11 1. Plaintiff may serve a subpoena on Defendant’s ISP, Cox Communications, seeking the name and address of the subscriber assigned to Defendant’s IP address. 12 2. The subpoena must provide a minimum of forty-five (45) days notice before 13 any production and shall be limited to one category of documents identifying the 14 particular subscriber listed on Exhibit 1 to Plaintiff’s Complaint. (ECF No. 1-2.) The 15 requested information should be limited to the name and address of the subscriber. Cox 16 Communications may seek a protective order if it determines there is a legitimate basis 17 for doing so. 18 3. Cox Communications shall have fourteen (14) calendar days after service of 19 the subpoena to notify the subscriber that his or her identity has been subpoenaed by 20 Plaintiff. The subscriber whose identity has been subpoenaed shall then have thirty (30) 21 calendar days from the date of the notice to seek a protective order or file any other 22 responsive pleading. 23 4. Plaintiff shall serve a copy of this Order with any subpoena obtained and 24 served pursuant to this Order to Cox Communications. Cox Communications, in turn, 25 must provide a copy of this Order along with the required notice to the subscriber whose 26 identity is sought pursuant to this Order. 27 /// 28 /// 7 15cv1614-BAS (DHB) 1 5. 2 IT IS SO ORDERED. 3 No deposition or other discovery is authorized at this time. Dated: August 19, 2015 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 15cv1614-BAS (DHB)