Strike 3 Holdings, LLC v. John Doe, No. 3:2018cv01366 - 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 8/7/2018. (mpl)
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Strike 3 Holdings, LLC v. John Doe Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 STRIKE 3 HOLDINGS, LLC, 11 Plaintiff, 12 13 v. 14 JOHN DOE subscriber assigned IP address 76.176.79.188, 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No.: 18CV1366 JAH (JMA) ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE [ECF No. 4] Before the Court is an Ex Parte Application for Leave to Serve a Third 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 June 20, 2018, Plaintiff filed a Complaint against Defendant John Doe subscriber assigned IP address 76.176.79.188 (“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 1 18CV1366 JAH (JMA) Dockets.Justia.com 1 trademarks to each of the Brand’s names and logos.” Ex Parte Appl. at 2; 2 Compl., ¶ 26 & Ex. A. The Complaint alleges a claim of copyright infringement. 3 Plaintiff alleges that Defendant, using IP address 76.176.79.188, infringed 4 Plaintiff’s copyrights by copying and distributing the constituent elements of 5 Plaintiff’s copyrighted works using the BitTorrent protocol without Plaintiff’s 6 authorization, permission or consent. Compl., ¶¶ 37-38. Plaintiff seeks leave of court to serve a subpoena pursuant to Fed. R. Civ. 7 8 P. 45 on Defendant’s internet service provider (“ISP”), Spectrum (Time Warner 9 Cable), in order to learn Defendant’s identity. 10 11 II. LEGAL STANDARDS 12 Generally, discovery is not permitted without a court order before the 13 parties have conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. 14 Civ. P. 26(d)(1). Yet, “in rare cases, courts have made exceptions, permitting 15 limited discovery to ensue after filing of the complaint to permit the plaintiff to 16 learn the identifying facts necessary to permit service on the defendant.” 17 Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999) 18 (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Courts grant 19 these requests when the moving party shows good cause for the early discovery. 20 Semitool, Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002). 21 The Ninth Circuit has held that when the defendants’ identities are 22 unknown at the time the complaint is filed, courts may grant plaintiffs leave to 23 take early discovery to determine the defendants’ identities “unless it is clear that 24 discovery would not uncover the identities, or that the complaint would be 25 dismissed on other grounds.” Gillespie, 629 F.2d at 642. A district court’s 26 decision to grant discovery to determine jurisdictional facts is a matter of 27 discretion. Columbia Ins. Co., 185 F.R.D. at 578. 28 2 18CV1366 JAH (JMA) 1 District courts apply a three-factor test when considering motions for early 2 discovery to identify certain defendants. Id. at 578-80. First, the plaintiff should 3 “identify the missing party with sufficient specificity such that the Court can 4 determine that defendant is a real person or entity who could be sued in federal 5 court.” Id. at 578. Second, the movant must describe “all previous steps taken to 6 locate the elusive defendant” to ensure that the plaintiff has made a good faith 7 effort to identify and serve process on the defendant. Id. at 579. Third, the 8 plaintiff should establish that its suit against the defendant could withstand a 9 motion to dismiss. Id. “[T]o prevent abuse of this extraordinary application of the 10 discovery process and to ensure that the plaintiff has standing,” the plaintiff must 11 show that some act giving rise to liability actually occurred and that the discovery 12 is aimed at identifying the person who actually committed the act. Id. at 579-80. 13 14 III. DISCUSSION 15 A. Identification of Missing Parties with Sufficient Specificity 16 First, Plaintiff must identify Defendant with enough specificity to enable the 17 Court to determine that the defendant is a real person or entity who would be 18 subject to the jurisdiction of this Court. Id. at 578. “[A] plaintiff identifies Doe 19 defendants with sufficient specificity by providing the unique IP addresses 20 assigned to an individual defendant on the day of the allegedly infringing 21 conduct, and by using “geolocation technology” to trace the IP address to a 22 physical point of origin. 808 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing 23 Hash, 2012 WL 1648838, at *4 (S.D. Cal. May 4, 2012). 24 Here, Plaintiff determined the ISP that had provided the subject IP address 25 associated with Defendant was Spectrum (Time Warner Cable), and used 26 geolocation technology to trace the IP address to an address located within this 27 district. Compl., ¶¶ 8-9 & Ex. A; Fieser Decl., ¶ 7. Consequently, Plaintiff has 28 3 18CV1366 JAH (JMA) 1 identified Defendant with sufficient specificity and has satisfied the first factor of 2 the test for permitting early discovery. 3 B. Previous Attempts to Locate Defendant 4 Next, Plaintiff must identify all previous steps taken to identify the Doe 5 Defendant in a good faith effort to locate and serve it. See Columbia Ins. Co., 6 185 F.R.D. at 579. According to Plaintiff, it “has been unable to identify any other 7 way to go about obtaining the identities of its infringers.” Ex Parte Appl. at 9. 8 This is the case because although publicly available data allowed Plaintiff to 9 identify the specific ISP used by Defendant as well as the city associated with the 10 IP address, it did not permit Plaintiff to ascertain the identity of the subscriber or 11 actual defendant. Id. Accordingly, Plaintiff appears to have investigated and 12 obtained the data pertaining to the alleged infringement in a good faith effort to 13 locate Defendant. See, e.g., Digital Sin, Inc. v. Does 1-5698, No. C-11-04397 14 LB, 2011 U.S. Dist. LEXIS 128033, at *5 (N.D. Cal. Nov. 4, 2011). 15 C. Ability to Withstand a Motion to Dismiss 16 Lastly, to be entitled to early discovery, Plaintiff must demonstrate that the 17 Complaint can withstand a motion to dismiss. See Columbia Ins. Co., 185 F.R.D. 18 at 579. 19 1. Ability to State a Claim Upon Which Relief Can Be Granted 20 Plaintiff alleges it “owns the intellectual property to the Blacked, Blacked 21 Raw, Tushy, and Vixen adult brands (the “Brands”), including the copyrights to 22 each of the motion pictures distributed through the Brands’ sites and the 23 trademarks to each of the Brand’s names and logos.” Ex Parte Appl. at 2; 24 Compl., ¶ 26 & Ex. A. Plaintiff alleges that Defendant, using IP address 25 76.176.79.188, infringed Plaintiff’s copyrights by copying and distributing the 26 constituent elements of Plaintiff’s copyrighted work using the BitTorrent protocol 27 without Plaintiff’s authorization, permission or consent. Id., ¶¶ 37-38. The Court 28 4 18CV1366 JAH (JMA) 1 finds Plaintiff has alleged a prima facie case of copyright infringement against 2 Defendant. 2. 3 4 Personal Jurisdiction Plaintiff bears the burden of establishing jurisdictional facts. See Columbia 5 Ins. Co., 185 F.R.D. at 578. Plaintiff, using geolocation technology, traced 6 Defendant’s IP address to a point of origin within this District. Compl., ¶¶ 8-9 & 7 Ex. A; Fieser Decl., ¶ 7. Accordingly, Plaintiff has alleged sufficient facts to show 8 it can likely withstand a motion to dismiss for lack of personal jurisdiction. See, 9 e.g., Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at *6-7. 10 3. 11 Venue “The venue of suits for infringement of copyright is not determined by the 12 general provision governing suits in the federal district courts, rather by the 13 venue provision of the Copyright Act.” Goldberg v. Cameron, 482 F. Supp. 2d 14 1136, 1143 (N.D. Cal. 2007). Civil actions for copyright infringement “may be 15 instituted in the district in which defendant or his agent resides or may be found.” 16 28 U.S.C.A. § 1400(1) (West 2006). An individual “resides” for venue purposes 17 in the district of his domicile. 17 James Wm. Moore, et al., Moore’s Federal 18 Practice, § 110.39[2], at 110-76 (3d ed. 2011). A defendant is “found” for venue 19 purposes where he is subject to personal jurisdiction. Id. (footnote omitted); see 20 also Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1126 (9th Cir. 21 2010) (“This circuit interprets [28 U.S.C. § 1400(a)] to allow venue in any judicial 22 district where, if treated as a separate state, the defendant would be subject to 23 personal jurisdiction.”). Plaintiff alleges venue is proper because Defendant 24 allegedly committed the infringing acts complained of in this District. Thus, 25 venue appears to be proper at this time. 26 Accordingly, Plaintiff’s Complaint can likely survive a motion to dismiss. 27 // 28 // 5 18CV1366 JAH (JMA) 1 IV. 2 For the reasons set forth above, it is hereby ordered that Plaintiff’s Ex Parte 3 CONCLUSION Application is GRANTED as follows: 1. 4 Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45 upon 5 Spectrum (Time Warner Cable) for the sole purpose of obtaining the name and 6 address only of Defendant John Doe, based on the IP address listed for him in 7 the complaint – 76.176.79.188. Spectrum (Time Warner Cable) shall have 8 fourteen (14) calendar days after service of the subpoena upon it to notify its 9 subscriber that his/her identity has been subpoenaed by Plaintiff. The subscriber 10 whose identity has been subpoenaed shall have thirty (30) calendar days from 11 the date of such notice to challenge the disclosure to Plaintiff by filing an 12 appropriate pleading with this Court contesting the subpoena. If Spectrum (Time 13 Warner Cable) intends to move to quash the subpoena, it must do so prior to the 14 return date of the subpoena. The return date of the subpoena must allow for at 15 least forty-five (45) days from service to production. If a motion to quash or other 16 customer challenge is brought, Spectrum (Time Warner Cable) must preserve 17 the information sought by Plaintiff pending resolution of the motion or challenge. 18 2. The subpoena shall not seek Defendant’s telephone number, email 19 address, or Media Access Control (MAC) address, as this information is not 20 necessary for Plaintiff to identify and serve Defendant. 21 22 3. Plaintiff may use the information disclosed pursuant to the subpoena only in pursuing this litigation. 23 4. Plaintiff shall serve a copy of this order with any subpoena served 24 upon Spectrum (Time Warner Cable) pursuant to this Order. Spectrum (Time 25 Warner Cable), in turn, must provide a copy of this Order along with the required 26 notice to the subscriber whose identity is sought pursuant to this Order. 27 // 28 // 6 18CV1366 JAH (JMA) 1 5. 2 IT IS SO ORDERED. 3 No other discovery is authorized at this time. Dated: August 7, 2018 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 7 18CV1366 JAH (JMA)
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