Strike 3 Holdings, LLC v. Doe, No. 3:2018cv00986 - Document 5 (S.D. Cal. 2018)

Court Description: ORDER granting 4 Ex Parte Application for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by Magistrate Judge Jan M. Adler on 6/20/2018. (acc)

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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, Plaintiff, 12 13 v. 14 JOHN DOE subscriber assigned IP address 162.204.183.18, 15 Case No.: 18cv00986-AJB(JMA) ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE [ECF No. 4] Defendant. 16 17 Before the Court is an Ex Parte Application for Leave to Serve a Third 18 19 20 21 22 23 24 25 26 27 28 Party Subpoena Prior to a Rule 26(f) Conference filed by Plaintiff Strike 3 Holdings, LLC (“Plaintiff”). (ECF No. 4.) For the reasons discussed below, Plaintiff’s motion is GRANTED. I. PROCEDURAL HISTORY On May 17, 2018, Plaintiff filed a Complaint against Defendant John Doe subscriber assigned IP address 162.204.183.18 (“Defendant”). (Compl., ECF No. 1). Plaintiff alleges it “owns the intellectual property to the Blacked, Blacked Raw, Tushy, and Vixen adult brands (the “Brands”), including the copyrights to each of the motion pictures distributed through the Brands’ sites and the trademarks to each of the Brand’s names and logos.” Ex Parte Appl. at 1; 1 18cv00986-AJB(JMA) 1 Compl., ¶ 32 & Ex. A. The Complaint alleges a claim of copyright infringement. 2 Plaintiff alleges that Defendant, using IP address 162.204.183.18, infringed 3 Plaintiff’s copyrights by copying and distributing the constituent elements of 4 Plaintiff’s copyrighted works using the BitTorrent protocol without Plaintiff’s 5 authorization, permission or consent. Compl., ¶¶ 35-40. 6 Plaintiff seeks leave of court to serve a subpoena pursuant to Fed. R. Civ. 7 P. 45 on Defendant’s internet service provider (“ISP”), AT&T, Inc., in order to 8 learn Defendant’s identity. 9 II. LEGAL STANDARDS 10 Generally, discovery is not permitted without a court order before the 11 parties have conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. 12 Civ. P. 26(d)(1). Yet, “in rare cases, courts have made exceptions, permitting 13 limited discovery to ensue after filing of the complaint to permit the plaintiff to 14 learn the identifying facts necessary to permit service on the defendant.” 15 Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999) 16 (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Courts grant 17 these requests when the moving party shows good cause for the early discovery. 18 Semitool, Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002). 19 The Ninth Circuit has held that when the defendants’ identities are 20 unknown at the time the complaint is filed, courts may grant plaintiffs leave to 21 take early discovery to determine the defendants’ identities “unless it is clear that 22 discovery would not uncover the identities, or that the complaint would be 23 dismissed on other grounds.” Gillespie, 629 F.2d at 642. A district court’s 24 decision to grant discovery to determine jurisdictional facts is a matter of 25 discretion. Columbia Ins. Co., 185 F.R.D. at 578. 26 District courts apply a three-factor test when considering motions for early 27 discovery to identify certain defendants. Id. at 578-80. First, the plaintiff should 28 “identify the missing party with sufficient specificity such that the Court can 2 18cv00986-AJB(JMA) 1 determine that defendant is a real person or entity who could be sued in federal 2 court.” Id. at 578. Second, the movant must describe “all previous steps taken to 3 locate the elusive defendant” to ensure that the plaintiff has made a good faith 4 effort to identify and serve process on the defendant. Id. at 579. Third, the 5 plaintiff should establish that its suit against the defendant could withstand a 6 motion to dismiss. Id. “[T]o prevent abuse of this extraordinary application of the 7 discovery process and to ensure that the plaintiff has standing,” the plaintiff must 8 show that some act giving rise to liability actually occurred and that the discovery 9 is aimed at identifying the person who actually committed the act. Id. at 579-80. 10 III. DISCUSSION 11 A. Identification of Missing Parties with Sufficient Specificity 12 First, Plaintiff must identify Defendant with enough specificity to enable the 13 Court to determine that the defendant is a real person or entity who would be 14 subject to the jurisdiction of this Court. Id. at 578. “[A] plaintiff identifies Doe 15 defendants with sufficient specificity by providing the unique IP addresses 16 assigned to an individual defendant on the day of the allegedly infringing 17 conduct, and by using “geolocation technology” to trace the IP address to a 18 physical point of origin. 808 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing 19 Hash, 2012 WL 1648838, at *4 (S.D. Cal. May 4, 2012). 20 Here, Plaintiff determined the ISP that had provided the subject IP address 21 associated with Defendant was AT&T, Inc., and used geolocation technology to 22 trace the IP address to an address located within this district. Compl., ¶¶ 8-9 & 23 Ex. A; Fieser Decl., ¶¶ 7-9; Stalzer Decl., ¶ 11. Consequently, Plaintiff has 24 identified Defendant with sufficient specificity and has satisfied the first factor of 25 the test for permitting early discovery. 26 B. 27 Next, Plaintiff must identify all previous steps taken to identify the Doe 28 Previous Attempts to Locate Defendant Defendant in a good faith effort to locate and serve it. See Columbia Ins. Co., 3 18cv00986-AJB(JMA) 1 185 F.R.D. at 579. According to Plaintiff, it “has been unable to identify any other 2 way to go about obtaining the identities of its infringers.” Ex Parte Appl. at 9. 3 This is the case because although publicly available data allowed Plaintiff to 4 identify the specific ISP used by Defendant as well as the city associated with the 5 IP address, it did not permit Plaintiff to ascertain the identity of the subscriber or 6 actual defendant. Id. Accordingly, Plaintiff appears to have investigated and 7 obtained the data pertaining to the alleged infringement in a good faith effort to 8 locate Defendant. See, e.g., Digital Sin, Inc. v. Does 1-5698, No. C-11-04397 9 LB, 2011 U.S. Dist. LEXIS 128033, at *5 (N.D. Cal. Nov. 4, 2011). 10 C. Ability to Withstand a Motion to Dismiss 11 Lastly, to be entitled to early discovery, Plaintiff must demonstrate that the 12 Complaint can withstand a motion to dismiss. See Columbia Ins. Co., 185 F.R.D. 13 at 579. 14 15 1. Ability to State a Claim Upon Which Relief Can Be Granted Plaintiff alleges it “owns the intellectual property to the Blacked, Blacked 16 Raw, Tushy, and Vixen adult brands, including the copyrights to each of the 17 motion pictures distributed through the brands’ sites and the trademarks to each 18 of the brand names and logos.” Ex Parte Appl. at 1; Compl., ¶ 32 & Ex. A. 19 Plaintiff alleges that Defendant, using IP address 162.204.183.18, infringed 20 Plaintiff’s copyrights by copying and distributing the constituent elements of 21 Plaintiff’s copyrighted works, Blacked, Blacked Raw, Tushy and Vixen, using the 22 BitTorrent protocol without Plaintiff’s authorization, permission or consent. Id., ¶¶ 23 35-40. The Court finds Plaintiff has alleged a prima facie case of copyright 24 infringement against Defendant. 25 26 2. Personal Jurisdiction Plaintiff bears the burden of establishing jurisdictional facts. See Columbia 27 Ins. Co., 185 F.R.D. at 578. Plaintiff, using geolocation technology, traced 28 Defendant’s IP address to a point of origin within this District. Compl., ¶¶ 8-9 & 4 18cv00986-AJB(JMA) 1 Ex. A; Fieser Decl., ¶¶ 7-9; Stalzer Decl., ¶ 11. Accordingly, Plaintiff has alleged 2 sufficient facts to show it can likely withstand a motion to dismiss for lack of 3 personal jurisdiction. See, e.g., Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, 4 at *6-7. 5 6 3. Venue “The venue of suits for infringement of copyright is not determined by the 7 general provision governing suits in the federal district courts, rather by the 8 venue provision of the Copyright Act.” Goldberg v. Cameron, 482 F. Supp. 2d 9 1136, 1143 (N.D. Cal. 2007). Civil actions for copyright infringement “may be 10 instituted in the district in which defendant or his agent resides or may be found.” 11 28 U.S.C.A. § 1400(1) (West 2006). An individual “resides” for venue purposes 12 in the district of his domicile. 17 James Wm. Moore, et al., Moore’s Federal 13 Practice, § 110.39[2], at 110-76 (3d ed. 2011). A defendant is “found” for venue 14 purposes where he is subject to personal jurisdiction. Id. (footnote omitted); see 15 also Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1126 (9th Cir. 16 2010) (“This circuit interprets [28 U.S.C. § 1400(a)] to allow venue in any judicial 17 district where, if treated as a separate state, the defendant would be subject to 18 personal jurisdiction.”). Plaintiff alleges venue is proper because Defendant 19 allegedly committed the infringing acts complained of in this District. Thus, 20 venue appears to be proper at this time. 21 Accordingly, Plaintiff’s Complaint can likely survive a motion to dismiss. 22 IV. 23 For the reasons set forth above, it is hereby ordered that Plaintiff’s Ex Parte 24 25 CONCLUSION Application is GRANTED as follows: 1. Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45 upon 26 AT&T, Inc. for the sole purpose of obtaining the name and address only of 27 Defendant John Doe, based on the IP address listed for him in the complaint – 28 162.204.183.18. AT&T, Inc. shall have fourteen (14) calendar days after service 5 18cv00986-AJB(JMA) 1 of the subpoena upon it to notify its subscriber that his/her identity has been 2 subpoenaed by Plaintiff. The subscriber whose identity has been subpoenaed 3 shall have thirty (30) calendar days from the date of such notice to challenge the 4 disclosure to Plaintiff by filing an appropriate pleading with this Court contesting 5 the subpoena. If AT&T, Inc. intends to move to quash the subpoena, it must do 6 so prior to the return date of the subpoena. The return date of the subpoena 7 must allow for at least forty-five (45) days from service to production. If a motion 8 to quash or other customer challenge is brought, AT&T, Inc. must preserve the 9 information sought by Plaintiff pending resolution of the motion or challenge. 10 2. The subpoena shall not seek Defendant’s telephone number, email 11 address, or Media Access Control (MAC) address, as this information is not 12 necessary for Plaintiff to identify and serve Defendant. 13 14 15 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 16 upon AT&T, Inc. pursuant to this Order. AT&T, Inc., in turn, must provide a copy 17 of this Order along with the required notice to the subscriber whose identity is 18 sought pursuant to this Order. 19 5. 20 IT IS SO ORDERED. 21 No other discovery is authorized at this time. Dated: June 20, 2018 22 23 24 25 26 27 28 6 18cv00986-AJB(JMA)

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