Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 70.95.33.145, No. 3:2020cv00948 - Document 4 (S.D. Cal. 2020)

Court Description: ORDER Granting 3 Plaintiff's Ex Parte Application For Leave to Serve a Third-Party Subpoena Prior to Rule 26(f) Conference. Signed by Magistrate Judge Michael S. Berg on 7/24/2020. (mme)(jrd)

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Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 70.95.33.145 Doc. 4 Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.79 Page 1 of 10 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.: 20cv948-WQH (MSB) Plaintiff, 12 13 v. 14 JOHN DOE subscriber assigned IP address 70.95.33.145, 15 ORDER GRANTING PLAINTIFF’S EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE Defendant. 16 17 O Jul 18 , , Plai tiff “t ike Holdi gs Plai tiff filed an Ex Parte Application 19 for Leave to Serve a Third-Party “u poe a P io to a ‘ule 20 Application . ECF No. . Plai tiff seeks to su poe a Defe da t Joh Doe s 21 Defe da t I te et “e i e P o ide . . . so that Plai tiff a lea I“P “pe t u f Co fe e e E Pa te fo li ited, i ediate 22 dis o e Defe da t s ide tit [a d] fu the i estigate 23 Defe da t s ole i the i f i ge e t a d effe tuate se i e. 24 Because the Defendant has not been identified, no opposition or reply briefs have been 25 filed. For the following reasons, the Ex Parte Application for Leave to Serve a Third- 26 Party Subpoena Prior to a Rule 26(f) Conference is GRANTED. 27 /// 28 /// ECF No. -1 at 7.) 1 20cv948-WQH (MSB) Dockets.Justia.com Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.80 Page 2 of 10 1 I. 2 BACKGROUND Plaintiff purports to be the registered owner of certain copyrighted motion 3 pictures. (ECF No. 1 at 1.) On May 21, 2020, Plaintiff filed a Complaint alleging that 4 Defe da t Joh Doe, a i te et su s i e assig ed I te et p oto ol IP add ess 5 70.95.33.145, used the BitTorrent file distribution network to illegally download and 6 distribute over forty of Plai tiff s op ighted o ks o e a e te ded pe iod of ti e. 7 (Id. at 2.) Plaintiff alleges that it used its infringement detection system, VXN Scan, to 8 discover that Defendant used the BitTorrent file network to illegally download and 9 distribute Plaintiff s op ighted otio pi tu es. (ECF No. 3-2 at 20.) Initially, Plaintiff moved to dis o e Defe da t s ide tit 10 utilizi g a state ou t 11 p o edu e i Flo ida he e [Plai tiff s] i f i ge e t dete tio se e s a e lo ated. 12 (ECF No. 1 at 5.) Ho e e , Defe da t o je ted asse ti g that the a tio is 13 p ope l litigated i the fede al ou t of his o he do i ile. 14 to litigating the matter in Federal Court and thus initiated this action pursuant to 28 15 U.S.C. § 1331 and 28 U.S.C. § 1338. (Id. at 2.) 16 oe Id.) Plaintiff is amenable On July 1, 2020, Plaintiff filed the instant Ex Parte Application to seek leave to 17 se e a su poe a pu sua t to Fede al ‘ule of Ci il P o edu e 18 Spectrum. (ECF No. 3-1 at 8.) Plaintiff maintai s that the ‘ule 19 de a d the t ue a e a d add ess of Defe da t a d Plaintiff 20 i fo 21 that [ ]ithout this information, Plaintiff cannot serve Defendant nor pursue this 22 lawsuit and protect its copyrights. atio to p ose ute the lai s 23 24 25 26 ade i its Co plai t. o Defe da t s I“P, su poe a ill o l ill o l use this Id.) Plaintiff further claims Id.) II. LEGAL STANDARD Generally, formal discovery is not permitted before the parties have conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). However, ou ts ha e ade e eptio s i a e ases . . . pe itti g li ited dis o e to e sue 27 after filing of the complaint to permit the plaintiff to learn the identifying facts 28 necessary to permit service on the defendant. Columbia Ins. Co. v. Seescandy.com, 185 2 20cv948-WQH (MSB) Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.81 Page 3 of 10 1 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 2 1980)). Courts in the Ninth Circuit apply a good ause sta da d to de ide hethe to 3 permit early discovery. Semitool, Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 275-76 4 N.D. Cal. 5 in consideration of the administration of justice, outweighs the prejudice to the 6 7 . Good ause is esta lished he e the eed fo e pedited dis o e , espo di g pa t . Id. Dist i t ou ts i the Ni th Ci uit ha e held that he the defe da ts identities 8 are unknown at the time the complaint is filed, courts may grant plaintiffs leave to take 9 early discovery to determine the defendants identities u less it is lea that discovery 10 would not uncover the identities, or that the complaint would be dismissed on other 11 g ou ds. 12 E37917C8EEB4585E6421358FF32F29C D63C23C91, No. 12CV00186 MMA(RBB), 2012 13 WL 12884688 (S.D. Cal. May 8, 2012) (citing Gillespie, 629 F.2d at 642). A dist i t 14 808 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing Hash ou t s de isio to g a t dis o e to determine jurisdictional facts is a matter of 15 dis etio . Columbia Ins. Co., 185 F.R.D. at 578 (citing Wells Fargo & Co. v. Wells Fargo 16 Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977)). 17 The Ninth Circuit typically applies a three-factor test when considering motions 18 for early discovery to identify Doe defendants. Columbia Ins. Co., 185 F.R.D. at 578-80. 19 First, plaintiffs should be a le to ide tif the 20 that the Court can determine that [the] defendant is a real person or entity who could 21 e sued i fede al ou t. Id. at 578. Second, plaintiffs should ide tif all p e ious issi g pa t ith suffi ie t spe ifi it [] 22 steps take to lo ate the elusi e defe da t to e su e that [the 23 good faith effort to comply with the requirements of the service of process and 24 spe ifi all ide tif i g defe da ts. Id. at 579. Third, the 25 esta lish to the Cou t s satisfa tio that plai tiff s suit agai st defe da t ould 26 ithsta d a o a t has o i g pa t ade] a should otio to dis iss. Id.; see Gillespie, 629 F.2d at 642 (stating early 27 discovery to identify unknown defendants should be permitted unless the complaint 28 would be dismissed on other grounds). In addition to satisfying all three factors, 3 20cv948-WQH (MSB) Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.82 Page 4 of 10 1 plaintiffs should include easo s justif i g the spe ifi dis o e 2 identification of a limited number of persons or entities on whom discovery process 3 might be served and for which there is a reasonable likelihood that the discovery 4 process will lead to identifying information about defendant that would make service of 5 p o ess possi le. Columbia Ins. Co., 185 F.R.D. at 580; see Gillespie, 629 F.2d at 642 6 (explaining that early discovery is precluded if it is not likely to provide the identity of 7 the defendant.). These safeguards are intended to ensure that ea l dis o e 8 be employed in cases where the plaintiff has in good faith exhausted traditional avenues 9 for identifying a civil defendant pre-service, and will prevent the use of this method to 10 13 ill o l ha ass o i ti idate. Id. at 578. 11 12 e uested [and] III. A. ANALYSIS Identification of Defendant with Sufficient Specificity For the Cou t to g a t Plai tiff s E Pa te Appli atio , Plai tiff ust fi st ide tif 14 Defendant with enough specificity to allow the Court to determine that Defendant is a 15 real person who could be subject to the jurisdiction of this Court. See Columbia Ins., 16 185 F.R.D. at 578. Cou ts i the Ni th Ci uit ha e held that a plai tiff ide tifies Doe 17 defendants with sufficient specificity by providing the unique IP addresses assigned to 18 an individual defendant on the day of the allegedly infringing conduct, and by using 19 geolo atio te h olog to t a e the IP add esses to a ph si al poi t of o igi . 808 20 Holdings, LLC, 2012 WL 12884688, at *4 (quoting Openmind Solutions, Inc. v. Does 1-39, 21 No. C 11-3311 MEJ, 2011 WL 4715200 (N.D. Cal. Oct. 7, 2011); Pi k Lotus E t 22 Does 1-46, No. C-11-02263 HRL, 2011 WL 2470986 (N.D. Cal. June 21, 2011)). Therefore, 23 in order for Plaintiff to identify Defendant with sufficient specificity, it is critical that 24 Plaintiff identify that there is an actual human involved in the downloading and sharing 25 of Plai tiff s allegedly infringed works. t, LLC . 26 First, Plaintiff submitted the Declaration of David Williamson, an Information 27 Systems and Management Consultant, wherein Mr. Williamson claims that he used 28 Plai tiff s infringement detection system, VXN Scan, to identify IP addresses that 4 20cv948-WQH (MSB) Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.83 Page 5 of 10 1 infringe upo Plai tiff s 2 Further, the BitTorrent functions that Plaintiff accuses Defendant of using require 3 human operation. See Christopher Civil, Mass Copyright Infringement Litigation: Of 4 Trolls, Pornography, Settlement and Joinder, 30 Syracuse J. Sci. & Tech. L. 2, 12 (2014) 5 o ies th ough the BitTo e t p oto ol. ECF No. -2 at 9.) BitTorrent transfers do not involve a centralized server that hosts or transfers the data 6 files in question. Instead, BitTorrent involves users interacting directly with other users 7 to upload and download the content. . Therefore, it becomes clear that an actual 8 hu a 9 works. as i ol ed i the do loadi g a d sha i g of Plai tiff s allegedl i f inged 10 Second, Plaintiff submitted the Declaration of Patrick Paige, a managing member 11 at Computer Forensics, LLC, wherein Mr. Paige contends that he utilized Packet Capture 12 PCAP a d VXN “ a to connect Defendant s IP add ess to the alleged piece of an 13 i f i gi g op of Plai tiff s o ks . . . . (ECF No. 3-2 at 21.) Mr. Paige further asserts 14 that [t]he PCAP contains a record data concerning that transaction, including, but not 15 limited to, the [IP] Addresses used in the network transaction, the date and time of the 16 network transaction, the port number used to accomplish each network transaction, 17 a d the I fo Hash alue that the VXN “ a used as the su je t of its e uest fo data. 18 (Id.) Mr. Paige contends that the contents of the PCAP confirm that the infringing 19 a ti it 20 UTC. 21 transaction, IP address 70.95.33.145 uploaded a piece or pieces of a file corresponded 22 to hash alue [ ep ese ti g Plai tiff s o ks] to VXN “ a . (Id.) This date and time 23 24 25 o e ted to the IP add ess .9 . . as i itiated at / / : 9: Id.) Mr. Paige concludes that the PCAP e ide e sho s that ithi that o espo d ith the date a d ti e o e of Plai tiff s o ks e e allegedl illegall do loaded a o di g to E hi it A of Plai tiff s Co plaint. (ECF No. 1-2 at 1.) In addition, Plai tiff su itted the De la atio of E ilie Ke ed , Plai tiff s i - 26 house General counsel, wherein Ms. Kennedy asserts geolocation was done by an 27 unspecified person to identify the location of Defendant on three separate occasions. 28 (ECF No. 3-2 at . O the fi st o asio , Ms. Ke ed asse ts [a]fte [Plai tiff] 5 20cv948-WQH (MSB) Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.84 Page 6 of 10 1 received infringement data from VXN Scan identifying IP address 70.95.33.145 as 2 infringing its works, the IP address was automaticall i putted i to Ma 3 Geolo atio Data ase . . . o August , 4 Maxmind Database, a geolocation technology, [was used] to t a e Defe da t s IP 5 add ess to a geog aphi a ea ithi this Cou t s ju isdiction. (Id.) On the second 6 o asio , Ms. Ke 7 address 70.95.33.145 into the Maxmind Database and confirmed that IP address .9 . 8 9 . ed 9.... Id.) Ms. Kennedy contends that the lai s [p] io to fili g its Co plai t, “t ike agai i putted IP o ti ued to t a e to this Dist i t. Kennedy asse ts i ds Id.) On the final occasion, Ms. efo e fili g this de la atio , [Plaintiff] inputted IP address 10 70.95.33.145 again into the Maxmind Database and confirmed that it traces to San 11 Diego, Califo ia. 12 reflecting the results of the third and final Maxmind Database search, showing that the 13 IP address alleged to be involved in the illegal downloads and confirms the location of 14 San Diego, CA. (Id. at 33.) 15 Id.) Attached as Exhibit 1 to Ms. Ke ed s De la atio is a chart Plaintiff has provided sufficient information about infringing activity tied to 16 Defe da t s u i ue IP add ess, the specific date and time associated with the activity, 17 the name of the ISP for the user of the IP address, and the location of the activity. 18 Therefore, Plaintiff has demonstrated with sufficient specificity that Defendant is a real 19 person or entity that falls within the jurisdiction of this court. See Criminal Prods., Inc. v. 20 Doe-72.192.163.220, No. 16-CV-2589 WQH (JLB), 2016 WL 6822186, at *3 (S.D. Cal. Nov. 21 18, 2016) (holding the sufficient specificity threshold is satisfied when the IP address 22 identified by Maxmind geolocation services identifies a physical location within the 23 24 25 ou t s ju isdi tio .). B. Good Faith Efforts to Identify Defendant For the Cou t to g a t Plai tiff s E Pa te Appli atio , Plai tiff ust also 26 demonstrate that it has taken previous steps to locate and serve the Defendant. See 27 Columbia Ins. Co., 185 F.R.D. at 579. Although Plaintiff maintains that it attempted to 28 ide tif Defe da t sea hi g Defe da t s IP add ess o a ious e sea h tools, 6 20cv948-WQH (MSB) Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.85 Page 7 of 10 1 including basic search engines like http://www.google.com, Plaintiff does not submit 2 evidence supporting this claim. (See ECF No. 3-1 at 14.) However, as aforementioned in 3 Ms. Ke 4 IP add ess, a d ide tif Defe da t s I“P. (ECF No. 3-2 at 30.) Despite these efforts, 5 Plaintiff was unable to correlate the IP address to Defe da t s ide tit . Plaintiff 6 7 8 ed s De la atio , Plai tiff did take substantial steps to locate the Defendant s ai tai s that it has ee u a le to ide tif a othe a to go a out o tai i g the identities of its infringers and does not know how else it could possibly enforce its op ights f o illegal pi a o e the I te et. ECF No. -1 at 14.) The Court 9 therefore finds that Plaintiff made a good faith effort to identify, locate, and serve the 10 Defendant. See Malibu Media, LLC v. John Does 1 through 6, No. 12-CV-1355-LAB DHB, 11 2012 WL 4471538, at *3 (S.D. Cal. Sept. 26, 2012) (finding the plaintiff s effo ts to 12 ide tif Doe defe da t e e suffi ie t e ause the e is o othe 13 obtain [d]efe da ts ide tities, e ept 14 de a di g it. ; see also, e.g., Digital Sin, Inc. v. Does 1-5698, No. C 11-04397 LB, 2011 15 WL 5362068, at *2 (N.D. Cal. Nov. 4, 2011) (finding the plai tiff s atte pts to ide tif 16 and locate the defendant sufficient when the plai tiff i estigated a d olle ted data 17 on unauthorized distribution of copies of the [alleged infringed work] on BitTorrent- 18 based peer-to-pee 19 C. 20 a fo [p]laintiff to se i g a su poe a o [d]efe da ts I“Ps et o k . Whether Suit Could Withstand a Motion to Dismiss For the Cou t to g a t Plai tiff s E Pa te Appli atio , Plai tiff ust also sho that 21 the complaint could withstand a motion to dismiss. See Columbia Ins. Co., 185 F.R.D. at 22 579. A suit may be dismissed pursuant to Rule 12(b) on several bases. Of all the bases 23 that bear dismissal, those relevant here are lack of subject matter jurisdiction, lack of 24 personal jurisdiction, and failure to state a claim. Fed. R. Civ. P. 12(b)(1), (2), (6). 25 Plai tiff s Co plai t alleges that [t]his Cou t has su je t 26 action pursuant to 28 U.S.C. § 1331 (federal question); and 28 U.S.C. § 1338 (jurisdiction 27 o e op ight a tio s . (ECF No. 1 at 2.) atte jurisdiction over this 28 7 20cv948-WQH (MSB) Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.86 Page 8 of 10 1 A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure 2 tests the sufficiency of the allegations in the Complaint. Navarro v. Block, 250 F.3d 729, 3 732 (9th Cir. 2001). To allege a copyright infringement claim, Plaintiff must 4 o 5 infringers violate at least one exclusive right granted to copyright holders under 17 6 U.“.C. § 7 Plaintiff alleges it owns over forty copyrighted works that are the subject of this suit and 8 9 e ship of the allegedl i f i ged ate ial a d sho de o st ate that the alleged . A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). lai s that the o ks a e egiste ed ith the U ited “tates Cop ight Offi e. ECF No. 1 at 7.) Plaintiff also alleges that Defenda t used the BitTo e t file et o k to illegall 10 do load a d dist i ute Plai tiff s op ighted 11 allegations, Plaintiff sufficiently sets forth facts demonstrating the required ownership 12 and infringement. Assuming these allegations are true, they state a claim on which 13 relief can be granted. See A&M Records, Inc., 239 F.3d at 1013-14 (finding plaintiffs 14 sufficiently demonstrated ownership and infringement by showing Napster allowed its 15 users to download copyrighted music, up to 70% of which was owned or administered 16 by the plaintiffs); see also Malibu Media, LLC v. Doe, No. 16CV1916-GPC(JMA), 2016 WL 17 6216183, at *2 (S.D. Cal. Oct. 25, 2016) (holding plaintiff has alleged a prima facie case 18 of copyright infringement against defendant by alleging that plaintiff owns 12 19 op ighted 20 op i g a d dist i uti g plai tiff s otio pi tu es. Id. at 5.) With these o ies at issue a d that defe da t i f i ged plai tiff s op ights o ies th ough the BitTo e t et o k ithout 21 plai tiff s pe 22 copyright infringement that will likely withstand a motion to dismiss based on subject 23 matter jurisdiction or failure to state claim. 24 issio . Therefore, Plaintiff has sufficiently alleged a prima facie claim of In order to prevail on any claim, a case must also withstand a motion to dismiss 25 for lack of personal jurisdiction over a defendant. See Fed. R. Civ. P. 12(b)(2). To 26 withstand a motion to dismiss for lack of personal jurisdiction, Plaintiff must make a 27 28 p i a fa ie sho i g of ju isdi tio al fa ts. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). Plaintiff maintains that it used geolocation technology to determine that 8 20cv948-WQH (MSB) Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.87 Page 9 of 10 1 Defe da t s IP add ess o elates to a ph si al add ess i “a Diego, CA hi h falls 2 within the jurisdiction of the Southern District of California. (ECF No. 1 at 3.) Therefore, 3 Plaintiff has accordingly alleged jurisdictional facts that are likely to withstand a motion 4 to dismiss for lack of personal jurisdiction. Based on the fo egoi g, the Cou t does ot fi d a 5 6 would be dismissed. 7 D. Whether Requested Discovery Will Lead to Identifying Information Finally, Plaintiff is required to de o st ate that the e is a easo a le likelihood 8 9 10 easo that Plai tiff s lai s that the discovery process will lead to identifying information about defendant that ould ake se i e of p o ess possi le. Columbia Ins. Co., 185 F.R.D. at 580. As 11 dis ussed a o e, Plai tiff s forensic investigation uncovered the unique IP address 12 70.95.33.145. (ECF No. 3-2 at 21.) Further, Plaintiff claims to have utilized the American 13 Registry for Internet Numbers to determine that the ISP Spectrum owned Defe da t s 14 IP address at the time of the infringement. (Id. at 27.) Spectrum is the only entity that 15 a o elate Defe da t s IP add ess to the IP add ess o e s t ue ide tit . (Id. at 26.) 16 Therefore, if “pe t u 17 will likely lead to information making it possible to effectuate service on Defendant. 18 19 20 21 p o ides Plai tiff ith Defe da t s a e a d add ess, Plai tiff IV. CONCLUSION For the foregoing reasons, the Court GRANTS the Ex Parte Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference [ECF No. 3] as follows: 1. Plaintiff may serve a subpoena pursuant to Federal Rule of Civil Procedure 22 45 on Spectrum, seeking only the name and address of the subscriber assigned to the IP 23 address 70.95.33.145. Plaintiff may not subpoena additional information about the 24 subscriber; 25 26 27 2. Plaintiff may only use the disclosed information to protect its copyrights in the instant litigation; 3. Within fourteen (14) calendar days after service of the subpoena, Spectrum 28 9 20cv948-WQH (MSB) Case 3:20-cv-00948-WQH-MSB Document 4 Filed 07/27/20 PageID.88 Page 10 of 10 1 shall notify the subscriber assigned the IP address 70.95.33.145 that his, her, or its 2 identity has been subpoenaed by Plaintiff; 3 4. The subscriber whose identity has be subpoenaed shall have thirty (30) 4 calendar days from the date of the notice to challenge the disclosure of his, her, or its 5 name and address by filing an appropriate pleading with this Court contesting the 6 subpoena; 7 5. If Spectrum wishes to move to quash the subpoena, it shall do so before 8 the return date of the subpoena. The return date of the subpoena must allow for at 9 least forty-five (45) days from service to production. If a motion to quash or other 10 customer challenge is brought, Spectrum shall preserve the information sought by 11 Plaintiff in the subpoena pending resolution of the motion or challenge; 12 13 14 15 6. Plaintiff shall serve a copy of this Order with any subpoena obtained and served to Spectrum pursuant to this Order; 7. Spectrum must provide a copy of this Order along with the required notice to the subscriber whose identity is sought pursuant to this Order. 16 8. 17 IT IS SO ORDERED. 18 No other discovery is authorized at this time. Dated: July 24, 2020 19 20 21 22 23 24 25 26 27 28 10 20cv948-WQH (MSB)

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