Strike 3 Holidngs, LLC v. Doe, No. 3:2018cv00232 - Document 7 (S.D. Cal. 2018)
Court Description: ORDER Granting 4 Ex Parte Application for Leave to Serve Third Party Subpoena. Signed by Magistrate Judge Bernard G. Skomal on 5/22/18. (dlg)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, Case No.: 18CV232 GPC (BGS) Plaintiff, 12 13 v. 14 JOHN DOE, subscriber assigned IP address 76.167.187.23, 15 ORDER: (1) GRANTING EX PARTE APPLICATION FOR LEAVE TO SERVE THIRD PARTY SUBPOENA PRIOR TO RULE 26(F) CONFERENCE Defendant. 16 17 [ECF 4] 18 19 20 21 Plaintiff Strike 3 Holdings, LLC’s Ex Parte Applications for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference is GRANTED. 22 I. BACKGROUND 23 On January 31, 2018, Plaintiff Strike 3 Holdings, LLC (“Plaintiff”) filed its 24 Complaint against Defendant John Doe subscriber assigned Internet Protocol (“IP”) 25 address 76.167.187.23 (“Doe Defendant”) for copyright infringement. (Compl. [ECF No. 26 1].) On February 13, 2018, Plaintiff filed an Ex Parte Application seeking leave to serve 27 a third party subpoena to ascertain the identity of the Doe Defendant. (Ex Parte Appl. 28 [ECF No. 4].) 1 18CV232 GPC (BGS) 1 In its Complaint, Plaintiff asserts that Defendant is liable for direct copyright 2 infringement. (Compl. ¶¶ 34-38.) Plaintiff alleges it owns the copyrights for movies it 3 distributes through adult websites and DVD sales. (Id. ¶¶ 3, 13.) Plaintiff alleges Doe 4 Defendant used BitTorrent, a peer-to-peer file sharing system, to copy and distribute its 5 movies without consent. (Id. ¶¶ 4-5, 17-38.) To identify the IP address that was illegally 6 distributing its works, Plaintiff hired forensic investigator IPP International U.G. (“IPP”). 7 (Id. ¶¶ 24-28; Ex Parte Appl. at 1.) 8 As it can only identify the Doe Defendant by the IP address used, Plaintiff requests 9 permission to serve a Federal Rule of Civil Procedure 45 subpoena on the Internet Service 10 Provider (“ISP”), Spectrum (Time Warner Cable) that issued the IP address to Doe 11 Defendant. (Ex Parte Appl. at 1-2.) The proposed subpoena only demands the name and 12 address of Doe Defendant, and Plaintiff indicates it will only use this information to 13 prosecute claims in the Complaint. (Id. at 2.) 14 Plaintiff claims good cause exists to grant the Ex Parte Application because: 15 (1) Plaintiff has identified Doe Defendant with sufficient specificity through geolocation 16 technology and forensic investigation; (2) Plaintiff has identified all previous steps taken 17 to locate Doe Defendant; (3) Plaintiff’s Complaint could withstand a motion to dismiss; 18 and (4) Plaintiff has established that there is a reasonable likelihood that Plaintiff can 19 identify the Doe Defendant and effectuate service. (Id. at 6-12.) 20 II. STANDARD OF REVIEW 21 A. Cable Privacy Act 22 The Cable Privacy Act prohibits a cable operator from disclosing “personally 23 identifiable information concerning any subscriber without the prior written or electronic 24 consent of the subscriber concerned.” 47 U.S.C. § 551(c)(1). However, a “cable operator 25 may disclose such information if the disclosure is . . . made pursuant to a court order 26 authorizing such disclosure, if the subscriber is notified of such order by the person to 27 whom the order is directed.” 47 U.S.C. § 551(c)(2)(B). A cable operator is “any person 28 or group of persons (A) who provides cable service over a cable system and directly or 2 18CV232 GPC (BGS) 1 through one or more affiliates owns a significant interest in such cable system, or (B) who 2 otherwise controls or is responsible for, through any arrangement, the management and 3 operation of such a cable system.” 47 U.S.C. § 522(5). 4 B. Requests for Discovery Before Rule 26(f) Conference 5 Unless a court order permits discovery, it is not allowed until the parties meet and 6 confer pursuant to Federal Rule of Civil Procedure 26(f). See Fed. R. Civ. P. 26(d)(1). To 7 determine if early discovery is warranted in a particular case, the court applies a “good 8 cause” test by weighing the need for discovery to further justice against the prejudice it 9 may cause the opposing party. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 10 276 (N.D. Cal. 2002); see also Strike 3 Holdings, LLC v. Doe, No. 17CV2317 JAH (BLM), 11 2017 WL 6389848, at *1 (S.D. Cal. Dec. 14, 2017) (citing Semitool, 208 F.R.D. at 274). 12 The Ninth Circuit has held that when a defendant’s identity is unknown at the time 13 a complaint is filed, courts may grant a plaintiff leave to take early discovery to determine 14 the defendant’s identity “unless it is clear that discovery would not uncover the identit[y], 15 or that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629 16 F.2d 637, 642 (9th Cir. 1980). In determining whether to grant leave for early discovery 17 to ascertain a defendant’s identity, district courts consider: (1) whether the plaintiff can 18 “identify the missing party with sufficient specificity such that the defendant is a real 19 person or entity who could be sued in federal court”; (2) whether the plaintiff has described 20 “all previous steps taken to locate the elusive defendant”; (3) whether the “suit against 21 defendant could withstand a motion to dismiss”; and (4) whether the requested “discovery 22 process would lead to identifying information about [the] defendant that would make 23 service of process possible.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578- 24 80 (N.D. Cal. 1999). 25 III. 26 DISCUSSION A. Identification of the Doe Defendant with Sufficient Specificity 27 Plaintiff has identified the Doe Defendant with sufficient specificity to enable the 28 Court to determine if Doe Defendant is a real person, subject to the Court’s jurisdiction. 3 18CV232 GPC (BGS) 1 Columbia Ins., 185 F.R.D. at 578. To determine whether a doe defendant has been 2 identified with sufficient specificity, courts look to whether a plaintiff provided “the unique 3 IP address[ ] assigned to an individual defendant on the day of the allegedly infringing 4 conduct” and used “‘geolocation technology’ to trace the IP addresses to a physical point 5 of origin.” 6 E37917C8EEB4585E6421358FF32F29C D63C23C91, No. 12CV00186 MMA (RBB), 7 2012 WL 12884688, at *4 (S.D. Cal. May 8, 2012) (citing OpenMind Sols., Inc. v. Does 1- 8 39, No. C-11-3311 MEJ, 2011 WL 4715200, at *2 (N.D. Cal. Oct. 7, 2011). Identifying 9 the unique IP address and location of the IP address has been shown to meet the 10 808 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing Hash requirement for identifying a doe defendant with sufficient specificity. Id. 11 Plaintiff has submitted several declarations in support of its request for the ability to 12 serve a Rule 45 subpoena, including Tobias Fieser, an employee of forensic investigation 13 services corporation IPP and Susan B. Stalzer, an employee of Plainitff. (Ex Parte Appl, 14 Exs. B and C.) Mr. Fieser indicates that IPP “provides forensic investigation services to 15 copyright owners including an ability to track, monitor, and detect copyright infringement 16 in an online environment.” (Fieser Decl. ¶ 4.) And, specific to this case, he explains that 17 “IPP’s forensic servers connected to an electronic device using IP Address 76.167.187.23” 18 which later “was documented distributing to IPP’s servers multiple pieces of [Plaintiff’s] 19 copyrighted movies listed on Exhibit A to [Plaintiff’s] Complaint.” (Id. ¶ 7.) Ms. Stalzer’s 20 Declaration indicates that she verified that the infringing files were identical, strikingly 21 similar, or substantially similar to Plaintiff’s works identified in Ex. A to the Complaint. 22 (Stalzer Decl. ¶¶ 7-9.) Finally, Plaintiff asserts it has used Maxmind,1 a geolocation 23 24 25 26 27 28 Plaintiff has also made assertions regarding the reliability and credibility of Maxmind’s geolocation technology. (Ex Parte Appl at 7; Compl. ¶ 9 [“Over 5,000 companies, along with United States federal and state law enforcement, use Maxmind’s GeoIP data to locate Internet visitors, perform analytics, enforce digital rights, and efficiently route Internet traffic.”]); see Criminal Prods., Inc. v. Doe, No. 16-CV-2589 WQH (JLB), 2016 WL 6822186, at *3 (S.D. Cal. Nov. 18, 2016) (“The Court concludes that based on the 1 4 18CV232 GPC (BGS) 1 technology, to trace Doe Defendant’s IP Address to a geographic area within this Court’s 2 personal jurisdiction.” (Compl. ¶ 9; Ex Parte Appl. at 7.) 3 Plaintiff has identified the missing party with such “sufficient specificity” so as to 4 assure the Court that the Doe Defendant is real, subject to the Court’s jurisdiction, and able 5 to be sued. Columbia Ins., 185 F.R.D. at 578. 6 B. Previous Steps Taken to Locate Doe Defendant 7 Plaintiff has sufficiently described all prior attempts it has made to identify Doe 8 Defendant. Id. at 579. This element is aimed at ensuring that “plaintiffs make a good faith 9 effort to comply with the requirements of service of process and specifically identify 10 defendants.” Id. 11 address “on various web search tools . . . review[ed] numerous sources of authority,” 12 including technology guides, agency websites, and hired cyber security consultants and 13 investigators to no avail. (Ex Parte Appl. at 8.) Further, Plaintiff has “discussed the issue 14 at length with computer investigators and cyber security consultants [and] does not know 15 how else it could possibly enforce its copyrights from illegal piracy over the Internet.” (Id. 16 at 8.) Therefore, the Court finds that Plaintiff has made a good faith effort to identify the 17 Doe Defendant. 18 Plaintiff has asserted that it has searched for Doe Defendant’s IP C. Ability to Withstand a Motion to Dismiss 19 Plaintiff has also demonstrated that its claim could withstand a motion to dismiss. 20 This requires Plaintiff to “make some showing that an act giving rise to civil liability 21 actually occurred and that the discovery is aimed at revealing specific identifying features 22 of the person or entity who committed that act.” Columbia Ins., 185 F.R.D. at 580. 23 /// 24 25 26 27 28 timing of the IP address tracing efforts employed by Plaintiff’s investigator, the documented success of the Maxmind geolocation service, and Plaintiff’s counsel’s efforts to independently verify the location information provided by Plaintiff’s investigator, Plaintiff has met its evidentiary burden [that jurisdiction is proper]”) 5 18CV232 GPC (BGS) 1 A claim may be dismissed pursuant to Rule 12(b) for lack of subject matter 2 jurisdiction or for failure to state a claim. Fed. R. Civ. P. 12(b)(1), 12 (b)(6). To prevail 3 on a copyright infringement claim, Plaintiff must show: “(1) ownership of a valid 4 copyright; and (2) that the defendant violated the copyright owner’s exclusive rights under 5 the Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (citing 17 6 U.S.C. § 501(a)). 7 Here, Plaintiff’s Complaint alleges subject matter jurisdiction under 28 U.S.C. 8 § 1331 (federal question) and 28 U.S.C. § 1338 (jurisdiction over copyright actions). 9 (Compl. ¶ 7.) Further, Plaintiff provides evidence that it is the exclusive rights holder of 10 the copyrighted works at issue. (See Compl., Ex. A.)2 Plaintiff alleges that Defendant 11 infringed Plaintiff’s copyrighted work via the BitTorrent file distribution network. (Compl. 12 ¶¶ 23-30, Ex. A.) Plaintiff also alleges that it did not permit or consent to Doe Defendant’s 13 copying or distribution of this work. (Id. ¶ 37.) Accordingly, Plaintiff has alleged the 14 prima facie elements of direct copyright infringement and could withstand a motion to 15 dismiss for failure to state a claim. See Columbia Ins., 185 F.R.D. at 579-80. 16 Plaintiff has also alleged personal jurisdiction. In order to survive a motion to 17 dismiss for lack of personal jurisdiction the plaintiff need only make a prima facie showing 18 of jurisdiction. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). A court has personal 19 jurisdiction over any person residing in the forum state. Brayton v. Purcell LLP v. 20 Recordon & Recordon, 361 F. Supp. 2d 1135, 1138 (N.D. Cal. 2005) (citing generally 21 Pennoyer v. Neff, 95 U.S. 714 (1877)). Venue in copyright infringement suits is proper in 22 the district in which the defendant . . . resides or may be found.” 28 U.S.C. § 1400 (a). 23 /// 24 25 2 26 27 28 Exhibit A is a chart containing United States Copyright Office registration information, including the registration numbers and application numbers for those works who registration is still pending. In its Complaint, Plaintiff states that it “owns the copyrights to the Works and the Works have either been registered with the United States Copyright Office or have pending copyright registrations.” (Compl. ¶¶ 31-32.) 6 18CV232 GPC (BGS) 1 Here, Plaintiff has shown that both personal jurisdiction and venue are proper by 2 alleging that “Defendant used an [IP address] traced to a physical address located within 3 this District to commit copyright infringement” and that Plaintiff has “used IP address 4 geolocation technology . . . to determine that Defendant’s IP address traced to a physical 5 address in this District.” (Compl. ¶¶ 8-9.) Accordingly, Plaintiff alleges that “a substantial 6 part of the events or omissions giving rise to the claims occurred in this District” and Doe 7 Defendant resides in this District. (Id. ¶ 10.) 8 D. Requested Discovery Will Lead to Identifying Information 9 Finally, Plaintiff has satisfied the last element required in Columbia Insurance by 10 demonstrating the requested discovery will lead to identifying information about Doe 11 Defendant that would make service of process possible. Columbia Ins., 185 F.R.D. at 580. 12 As explained above, Plaintiff’s investigation has revealed a unique IP address. Due to the 13 fact that the only entity able to correlate an IP address to a specific individual is the ISP, 14 Spectrum (Time Warner Cable), the requested Rule 45 subpoena would lead to information 15 making physical service of process possible. 16 IV. 17 18 CONCLUSION AND ORDER Plaintiff has met its burden of showing good cause and the Ex Parte Application (ECF No. 4) is GRANTED. Accordingly, IT IS HEREBY ORDERED that: 19 1. Plaintiff may serve Spectrum (Time Warner Cable) with a Rule 45 subpoena 20 commanding the ISP to provide Plaintiff with the true name and address of the 21 subscriber assigned the IP address 76.167.187.23. Plaintiff may not subpoena 22 additional information about the subscriber. 23 24 25 26 2. Plaintiff may only use the disclosed information to protect its copyrights in pursuing this litigation. 3. Plaintiff shall attach a copy of this Order to any Rule 45 subpoena issued pursuant to this Order. 27 4. Within fourteen (14) calendar days after the service of the subpoena, the ISP 28 shall notify the subscriber that its identity has been subpoenaed by Plaintiff. 7 18CV232 GPC (BGS) 1 5. The subscriber whose identity has been subpoenaed shall have thirty (30) 2 calendar days from the date of such notice to seek a protective order or challenge 3 the disclosure by filing an appropriate pleading with this Court contesting the 4 subpoena. 5 6. If the ISP wishes to move to quash the subpoena, it shall do so before the return 6 date of the subpoena. The return date of the subpoena must allow for forty-five 7 (45) calendar days from service to production. If a motion to quash or other 8 customer challenge is brought, the ISP shall preserve the information sought by 9 Plaintiff in the subpoena pending resolution of such motion or challenge. 10 7. As Spectrum (Time Warner Cable) qualifies as a “cable operator,” as defined by 11 47 U.S.C. § 522(5), it shall comply with 47 U.S.C. § 551(c)(2)(B) by sending a 12 copy of this Order to the Defendant. 13 8. Plaintiff may only use the information disclosed in response to a Rule 45 14 subpoena served on the ISP for the sole purpose of enforcing Plaintiff’s rights as 15 set forth in its Complaint. 16 17 Dated: May 22, 2018 18 19 20 21 22 23 24 25 26 27 28 8 18CV232 GPC (BGS)
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