Strike 3 Holdings, LLC v. Doe, No. 3:2021cv00232 - Document 8 (S.D. Cal. 2021)
Court Description: ORDER Granting 5 Ex Parte Application for Leave to Serve a Third-Party Subpoena. Signed by Magistrate Judge Karen S. Crawford on 5/11/21. (dlg)
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Strike 3 Holdings, LLC v. Doe Doc. 8 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.: 21-cv-00232-GPC-KSC Plaintiff, 12 13 v. 14 JOHN DOE subscriber assigned IP address 75.80.1.11, 15 ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE Defendant. 16 [Doc. No. 5] 17 18 Before the Court is plaintiff Strike 3 Holdings, LLC’s (“plaintiff”) Ex Parte 19 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference. 20 Doc. No. 5. For the reasons stated below, plaintiff’s application is GRANTED. 21 I. BACKGROUND 22 On February 5, 2021, plaintiff filed a Complaint against defendant John Doe 23 subscriber assigned IP address 75.80.1.11 (“defendant”), asserting a claim for copyright 24 infringement. See Doc. No. 1. Plaintiff alleges it is the owner of certain adult-content 25 films that defendant is “stealing … on a grand scale” by downloading these films and 26 distributing them to others without plaintiff’s authorization, permission or consent. Id. at 27 ¶¶2-7. 28 75.80.1.11. Doc. No. 5-1 at 7-8. Plaintiff therefore seeks the Court’s leave to serve a Defendant’s identity is known only to plaintiff by defendant’s IP address: 1 21-cv-00232-GPC-KSC Dockets.Justia.com 1 subpoena pursuant to Fed. R. Civ. P. 45 on defendant’s internet service provider (“ISP”), 2 Spectrum, to learn defendant’s identity. Id. at 7. Plaintiff asserts that “[w]ithout this 3 information,” it cannot serve defendant, “nor pursue this lawsuit and protect its 4 copyrights.” Id. at 8. 5 II. LEGAL STANDARDS 6 Generally, discovery is not permitted without a court order before the parties have 7 conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). Yet, 8 “in rare cases, courts have made exceptions, permitting limited discovery to ensue after 9 filing of the complaint to permit the plaintiff to learn the identifying facts necessary to 10 permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 11 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). 12 Courts permit early discovery “where the need for expedited discovery, in consideration of 13 the administration of justice, outweighs the prejudice to the responding party.” Semitool, 14 Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002) (applying “the 15 conventional standard of good cause in evaluating [a] request for expedited discovery”). 16 The Ninth Circuit has held that when the defendant’s identity is unknown at the time 17 the complaint is filed, courts may grant plaintiffs leave to take early discovery to determine 18 the defendant’s identity “unless it is clear that discovery would not uncover the identit[y], 19 or that the complaint would be dismissed on other grounds.” Gillespie, 629 F.2d at 642. 20 “A district court’s decision to grant discovery to determine jurisdictional facts is a matter 21 of discretion.” Columbia Ins. Co., 185 F.R.D. at 578 (citations omitted). “[T]o prevent 22 abuse of this extraordinary application of the discovery process and to ensure that the 23 plaintiff has standing,” the plaintiff must show “that an act giving rise to civil liability 24 actually occurred,” and that the requested discovery is aimed at identifying the person who 25 committed the act. Id. at 579-80. 26 III. DISCUSSION 27 District Courts apply a three-factor test when considering motions for early 28 discovery to identify the defendant. Id. at 578-80. First, the plaintiff should “identify the 2 21-cv-00232-GPC-KSC 1 missing party with sufficient specificity such that the Court can determine that defendant 2 is a real person or entity who could be sued in federal court.” Id. at 578. Second, the 3 movant must describe “all previous steps taken to locate the elusive defendant” to ensure 4 that the plaintiff has made a good faith effort to identify and serve process on the defendant. 5 Id. at 579. Third, the plaintiff should establish that its suit against the defendant could 6 withstand a motion to dismiss. Id 7 A. Identification of Missing Parties with Sufficient Specificity 8 A plaintiff can satisfy its burden of identifying the missing party with specificity by 9 “identify[ing] the unique IP addresses” of the allegedly infringing individuals and then 10 “us[ing] geolocation technology to trace these IP addresses to a point of origin.” Pink 11 Lotus Entm’t, LLC v. Does 1-46, No. C-11-02263 HRL, 2011 WL 2470986, at *3 (N.D. 12 Cal. June 21, 2011). Here, plaintiff determined that Spectrum provided the subject IP 13 address associated with defendant and used geolocation technology to trace the IP address 14 to an address located within this District. See Doc. No. 5-1 at 12-13; Doc. No. 5-2 at 29- 15 30, 32. Plaintiff confirmed the information before filing its Complaint and again before 16 filing the instant ex parte application. Doc. No. 5-2 at 29. The Court finds plaintiff has 17 “sufficiently shown” that defendant is a “real person[] likely residing in California who 18 may be sued in this Court.” Pink Lotus, 2011 WL 2470986, at *3. 19 B. Previous Attempts to Locate Defendant 20 Next, plaintiff must identify all previous steps taken to identify the Doe defendant 21 in a good faith effort to locate and serve it. See Columbia Ins. Co., 185 F.R.D. at 579. 22 Plaintiff first sought to uncover defendant’s identity by means of a state court procedure in 23 Florida, where plaintiff’s “infringement detection servers” are located. Doc. No. 5-1 at 14. 24 However, defendant, through counsel, objected in that forum and has not responded to any 25 of plaintiff’s efforts to obtain defendant’s identity without the Court’s intervention. Id. at 26 14-15. Plaintiff has also conducted its own independent research and consulted with 27 forensic and cybersecurity experts. Id. Despite these efforts, plaintiff has been unable to 28 identify defendant and represents it cannot do so without the requested discovery. Id. at 3 21-cv-00232-GPC-KSC 1 14. Accordingly, the Court finds that plaintiff has made a good-faith effort to identify and 2 locate defendant before filing the instant applications. See Strike 3 Holdings, LLC v. Doe, 3 No. 20-cv-00068-BAS-JLB, 2020 WL 1029011, at *4 (S.D. Cal. Mar. 3, 2020). 4 C. Ability to Withstand a Motion to Dismiss 5 Plaintiff’s Complaint alleges a single cause of action against defendant for direct 6 copyright infringement. See Doc. No. 1 at ¶¶49-54. Plaintiff alleges it owns the subject 7 intellectual property, which defendant copied and distributed without plaintiff’s 8 authorization, permission or consent. See Doc. No. 5-1 at 17; Doc. No. 1 at ¶¶19-48. The 9 Court finds plaintiff has alleged a prima facie case of direct copyright infringement against 10 defendant that would likely withstand a motion to dismiss for failure to state a claim. 11 Plaintiff also bears the burden of establishing jurisdictional facts. See Columbia Ins. 12 Co., 185 F.R.D. at 578. Plaintiff, using geolocation technology, traced defendant’s IP 13 address to a point of origin within this District before filing its Complaint and again before 14 filing the instant ex parte application. See Doc. No. 5-1 at 12-13; Doc. No. 5-2 at 29-30, 15 32; Doc. No. 1 at ¶¶9-11. These facts are sufficient to show “that it is likely that the 16 [d]efendant is located within the Southern District of California and is subject to the 17 personal jurisdiction of the Court.” Criminal Prods., Inc. v. Doe, No. 16-cv-02353-DMS- 18 MDD, 2016 WL 6070355, at *3 (S.D. Cal. Oct. 17, 2016). The Court therefore finds 19 plaintiff has alleged enough facts to show it can likely withstand a motion to dismiss for 20 lack of personal jurisdiction. 21 For the same reason, venue appears proper. Civil actions for copyright infringement 22 “may be instituted in the district in which defendant or his agent resides or may be found.” 23 28 U.S.C.A. § 1400(1). A defendant is “found” for venue purposes where he is subject to 24 personal jurisdiction. Id. (footnote omitted). Further, plaintiff alleges venue is proper 25 because defendant allegedly committed the infringing acts complained of in this District. 26 Doc. No. 1 at ¶12. The Court finds that the Complaint could likely withstand a motion to 27 dismiss for improper venue. 28 /// 4 21-cv-00232-GPC-KSC 1 Accordingly, the Court finds that plaintiff has adequately demonstrated that the 2 Complaint can likely survive a motion to dismiss. 3 ORDER 4 5 For the reasons set forth above, plaintiff’s Ex Parte Application is GRANTED. It is hereby further ORDERED that: 6 1. Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45 upon 7 Spectrum for the sole purpose of obtaining the name and address only of 8 defendant John Doe, based on the IP address listed for him in the 9 Complaint – 75.80.1.11. The subpoena shall not seek defendant’s 10 telephone number, email address, or Media Access Control (MAC) 11 address, as this information is not necessary for plaintiff to identify and 12 serve defendant. 13 2. The return date of the subpoena must allow for at least forty-five (45) days 14 from service to production. If Spectrum intends to move to quash the 15 subpoena, it must do so prior to the return date of the subpoena. If a motion 16 to quash or other customer challenge is brought, Spectrum must preserve 17 the information sought by plaintiff pending resolution of the motion or 18 challenge. 19 3. Spectrum shall have fourteen (14) calendar days after service of the 20 subpoena upon it to notify its subscriber that his/her identity has been 21 subpoenaed by plaintiff. The subscriber whose identity has been 22 subpoenaed shall have thirty (30) calendar days from the date of such 23 notice to challenge the disclosure to plaintiff by filing an appropriate 24 pleading with this Court contesting the subpoena. 25 /// 26 /// 27 /// 28 /// 5 21-cv-00232-GPC-KSC 1 4. Plaintiff shall serve a copy of this Order with any subpoena served upon 2 Spectrum pursuant to this Order. Spectrum, in turn, must provide a copy 3 of this Order along with the required notice to the subscriber whose 4 identity is sought pursuant to this Order. 5 5. 6 7 Plaintiff may use the information disclosed pursuant to the subpoena only in pursuing this litigation. 6. No other discovery is authorized at this time. 8 IT IS SO ORDERED. 9 Dated: May 11, 2021 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 21-cv-00232-GPC-KSC
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