Celestial Inc v. Swarm Sharing Hash et al

Filing 14

ORDER DENYING Plaintiff's Motion for Leave to Take Early Discovery, and to Show Cause Why This Matter Should Not Be Dismissed for Lack of Personal Jurisdiction 12 by Judge Dean D. Pregerson: For all of these reasons, the court hereby DENIES Celestial's Motion for early discovery. Additionally, the court orders Celestial to file a brief, not to exceed ten pages, by 3/30/2012, to show cause why this matter should not be dismissed for lack of personal jurisdiction. (jp)

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1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CELESTIAL INC., 12 Plaintiff, 13 14 15 v. SWARM SHARING HASH 8AB508AB0F9EF8B4CDB14C6248F3 C96C65BEB882 on December 4, 2011 16 17 Defendants. ____________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-00204 DDP (SSx) ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO TAKE EARLY DISCOVERY, AND TO SHOW CAUSE WHY THIS MATTER SHOULD NOT BE DISMISSED FOR LACK OF PERSONAL JURISDICTION [Docket No. 12] 18 19 Presently before the court is Plaintiff Celestial, Inc.’s 20 Motion for Leave to Take Discovery Prior to Rule 26 Conference 21 (“Motion”). 22 denies the Motion, orders Plaintiff to show cause why this matter 23 should not be dismissed for lack of personal jurisdiction, and 24 adopts the following Order. 25 I. Having reviewed Plaintiff’s moving papers, the court BACKGROUND 26 Plaintiff Celestial, Inc. (“Celestial”) is a California 27 corporation that produces, markets, and distributes adult films. 28 Celestial has filed multiple actions in this court, each alleging 1 that two or more Defendant “Does” reproduced and distributed 2 infringing copies of Celestial’s copyrighted film “Moms Pimp Their 3 Daughters No. 3,” using BitTorrent technology.1 4 According to Celestial, “BitTorrent is a peer-to-peer file sharing 5 protocol for distributing and sharing data on the Internet.” 6 Instead of “downloading a file from a single source, the BitTorrent 7 protocol allows users to join a group of hosts (or ‘swarm’) to 8 download and upload from each other simultaneously.” 9 29.) (Mot. at 2-3.) (Compl. ¶ 10 Here, Celestial hired IPP International UG (“IPP”) to “locate 11 and document infringing copies of its copyright protected works on 12 bit torrent networks.” 13 “proprietary technology” to identify the IP addresses of devices 14 involved in the downloading and uploading of the film at issue, at 15 a particular date and time. 16 Mot. ¶¶ 11-14.) 17 serve subpoenas on relevant Internet service providers (“ISPs”), to 18 obtain the names, addresses, and other identifying information of 19 the subscribers associated with the IP addresses - currently named 20 as the Defendant “Does.” 21 II. (Mot. at 3.) IPP then used an unspecified (Decl. of Tobias Fieser in Supp. of Celestial now seeks the court’s permission to DISCUSSION 22 Generally, a party may not conduct discovery before the 23 parties have met and conferred pursuant to Federal Rule of Civil 24 Procedure (“Rule”) 26(f). 25 No. 11-4220, 2011 WL 6002620, at *2 (N.D. Cal. Nov. 30, 2011). 26 However, a court may authorize early discovery “for the parties’ See SBO Pictures, Inc. v. Does 1-3036, 27 1 28 Each action alleges contributory infringement and negligence as well. 2 1 and witnesses’ convenience and in the interests of justice.” 2 R. Civ. P. 26(d)(2). 3 early discovery. 4 208 F.R.D. 273, 276 (N.D. Cal. 2002). 5 where the need for expedited discovery, in consideration of the 6 administration of justice, outweighs the prejudice to the 7 responding party.” 8 9 Fed. The moving party must show good cause for the See Semitool, Inc. v. Tokyo Electron Am., Inc., “Good cause may be found Id. Other concerns are also at issue in actions like these, “where the identity of alleged defendants will not be known prior to the 10 filing of a complaint.” 11 (9th Cir. 1980). 12 should be given an opportunity through discovery to identify the 13 unknown defendants, unless it is clear that discovery would not 14 uncover the identities, or that the complaint would be dismissed on 15 other grounds.” 16 Gillespie v. Civiletti, 629 F.2d 637, 642 As the Ninth Circuit has held, “the plaintiff Id. District courts have further developed this standard where the 17 unknown defendants are anonymous internet users, taking into 18 account the First Amendment concerns involved. 19 Ltd. v. ABC Co., 722 F. Supp. 2d 1210, 1213-17 (W.D. Wash. 2010) 20 (discussing the relevant decisions and requirements imposed); Sony 21 Music Entm’t, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 558, 564-65 22 (S.D.N.Y. 2004) (holding that “a person who uses the Internet to 23 download or distribute copyrighted music without permission is 24 engaging in the exercise of speech, albeit to a limited extent.”). 25 See SaleHoo Group, Celestial asks the court to follow the majority of district 26 courts in this Circuit and apply the standard set forth in Columbia 27 Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-79 (N.D. Cal. 1999). 28 Under Columbia, the moving party must: “(1) identify the defendant 3 1 with enough specificity to allow the Court to determine whether the 2 defendant is a real person or entity who could be sued in federal 3 court; (2) recount the steps taken to locate the defendant; (3) 4 show that its action could survive a motion to dismiss; and (4) 5 file a request for discovery with the Court identifying the persons 6 or entities on whom discovery process might be served and for which 7 there is a reasonable likelihood that the discovery process will 8 lead to identifying information.” 9 at *2. SBO Pictures, 2011 WL 6002620, Other courts, however, have imposed a more stringent third 10 requirement - that the plaintiff “submit evidence sufficient to 11 defeat summary judgment” or “make a prima facie evidentiary 12 showing.” 13 prima facie standard appropriate); see also Brief of Amicus Curiae 14 Electronic Frontier Foundation in Support of Motion to Quash 15 Subpoena, First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241 16 (N.D. Ill. 2011) (No. 1:10-cv-06254), at 19-20 (arguing in favor of 17 the summary judgment standard). 18 SaleHoo Group, 722 F. Supp. 2d at 1216 (finding the The court need not decide among these variations here, as 19 Celestial’s discovery request fails even under Columbia’s more- 20 lenient “motion to dismiss” standard. 21 finds that Celestial’s Complaint would not survive a motion to 22 dismiss for lack of personal jurisdiction. Celestial does not 23 address jurisdiction at all in its Motion. In its Complaint, 24 however, Celestial alleges that Defendants “reside in, solicit, 25 transact, or are doing business within the jurisdiction,” because 26 “[g]eo locating tools” have placed the IP addresses of the Doe 27 Defendants in California. 28 not make any representations as to the reliability or level of In particular, the court But Celestial also states that it “does 4 1 accuracy of IP address geo-location tools.” 2 Nor does Celestial provide any details regarding the tools used or 3 the results. 4 (Compl. ¶¶ 2-3 & n.1) Celestial also alleges in its Complaint that its film displays 5 “the title of the work, the name of the producer, and the Woodland 6 Hills, California address of the producer.” 7 Celestial’s suggestion, this allegation alone is insufficient to 8 support a finding that “Defendants expressly aimed their tortious 9 acts against” a California company, as required for specific Contrary to 10 jurisdiction. 11 651, 2012 WL 28788, at *2-7 (S.D. Cal. Jan. 4, 2012) (granting 12 defendant’s motion to dismiss for lack of personal jurisdiction, 13 after explaining in detail the insufficiency of similar 14 allegations).2 15 See Liberty Media Holding, LLC v. Tabora, No. 11-cv- Accordingly, because Celestial’s Complaint would not survive a 16 motion to dismiss, the court denies Celestial’s Motion without 17 prejudice. 18 able to adequately address personal jurisdiction, as well as the 19 other significant issues raised by courts in similar actions - most Celestial can move again for early discovery if it is 20 21 22 2 23 24 25 26 27 28 Cf. On The Cheap, LLC v. Does 1-5011, --- F.R.D. ----, 2011 WL 4018258, at *4 (N.D. Cal. Sept. 6, 2011)(“Plaintiff also asserted that by virtue of their ‘swarming’ activity, the out-of-state defendants have engaged in concerted activity with the California defendants. The problem with this theory is that since plaintiff could have filed this lawsuit in any state, the logical extension would be that everybody who used P2P software such as BitTorrent would subject themselves to jurisdiction in every state. This is a far cry from the requirement that ‘there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State,’ which is the hallmark of specific jurisdiction.” (footnote omitted)). 5 1 notably, with regard to joinder.3 2 jurisdictional issue, the court hereby orders Celestial to show 3 cause why the matter should be not dismissed on this ground. 4 III. CONCLUSION 5 Further, in light of the For all of these reasons, the court hereby DENIES Celestial’s 6 Motion for early discovery. Additionally, the court orders 7 Celestial to file a brief, not to exceed ten pages, by March 30, 8 2012, to show cause why this matter should not be dismissed for 9 lack of personal jurisdiction. 10 11 IT IS SO ORDERED. 12 13 14 Dated: March 23, 2012 15 DEAN D. PREGERSON 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 3 See, e.g., Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d 1150, 1157-65 (N.D. Cal. 2011); On The Cheap, 2011 WL 4018258, at *1-5; SBO Pictures, 2011 WL 6002620, at *3-4; Hard Drive Prods. v. Does 1-33, No. C 11-03827, 2011 WL 5325530, at *3-5 (N.D. Cal. Nov. 3, 2011); AF Holdings, LLC v. Does 1-97, No. C 11-3067, 2011 WL 5195227, at *2-3 (N.D. Cal. Nov. 1, 2011); MCGIP, LLC v. Does 1-149, No. C 11-02331, 2011 WL 4352110, at *3-4 (N.D. Cal. Sept. 16, 2011); Boy Racer, Inc. v. Does 1-60, No. C 11-01738, 2011 WL 3652521, at *2-4 (N.D. Cal. Aug. 19, 2011). 6