Celestial Inc v. Swarm Sharing Hash et al
Filing
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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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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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CELESTIAL INC.,
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Plaintiff,
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v.
SWARM SHARING HASH
8AB508AB0F9EF8B4CDB14C6248F3
C96C65BEB882 on December 4,
2011
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Defendants.
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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]
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Presently before the court is Plaintiff Celestial, Inc.’s
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Motion for Leave to Take Discovery Prior to Rule 26 Conference
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(“Motion”).
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denies the Motion, orders Plaintiff to show cause why this matter
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should not be dismissed for lack of personal jurisdiction, and
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adopts the following Order.
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I.
Having reviewed Plaintiff’s moving papers, the court
BACKGROUND
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Plaintiff Celestial, Inc. (“Celestial”) is a California
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corporation that produces, markets, and distributes adult films.
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Celestial has filed multiple actions in this court, each alleging
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that two or more Defendant “Does” reproduced and distributed
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infringing copies of Celestial’s copyrighted film “Moms Pimp Their
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Daughters No. 3,” using BitTorrent technology.1
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According to Celestial, “BitTorrent is a peer-to-peer file sharing
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protocol for distributing and sharing data on the Internet.”
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Instead of “downloading a file from a single source, the BitTorrent
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protocol allows users to join a group of hosts (or ‘swarm’) to
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download and upload from each other simultaneously.”
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29.)
(Mot. at 2-3.)
(Compl. ¶
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Here, Celestial hired IPP International UG (“IPP”) to “locate
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and document infringing copies of its copyright protected works on
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bit torrent networks.”
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“proprietary technology” to identify the IP addresses of devices
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involved in the downloading and uploading of the film at issue, at
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a particular date and time.
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Mot. ¶¶ 11-14.)
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serve subpoenas on relevant Internet service providers (“ISPs”), to
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obtain the names, addresses, and other identifying information of
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the subscribers associated with the IP addresses - currently named
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as the Defendant “Does.”
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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
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Generally, a party may not conduct discovery before the
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parties have met and conferred pursuant to Federal Rule of Civil
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Procedure (“Rule”) 26(f).
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No. 11-4220, 2011 WL 6002620, at *2 (N.D. Cal. Nov. 30, 2011).
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However, a court may authorize early discovery “for the parties’
See SBO Pictures, Inc. v. Does 1-3036,
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Each action alleges contributory infringement and
negligence as well.
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and witnesses’ convenience and in the interests of justice.”
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R. Civ. P. 26(d)(2).
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early discovery.
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208 F.R.D. 273, 276 (N.D. Cal. 2002).
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where the need for expedited discovery, in consideration of the
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administration of justice, outweighs the prejudice to the
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responding party.”
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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
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filing of a complaint.”
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(9th Cir. 1980).
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should be given an opportunity through discovery to identify the
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unknown defendants, unless it is clear that discovery would not
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uncover the identities, or that the complaint would be dismissed on
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other grounds.”
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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
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unknown defendants are anonymous internet users, taking into
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account the First Amendment concerns involved.
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Ltd. v. ABC Co., 722 F. Supp. 2d 1210, 1213-17 (W.D. Wash. 2010)
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(discussing the relevant decisions and requirements imposed); Sony
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Music Entm’t, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 558, 564-65
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(S.D.N.Y. 2004) (holding that “a person who uses the Internet to
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download or distribute copyrighted music without permission is
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engaging in the exercise of speech, albeit to a limited extent.”).
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See SaleHoo Group,
Celestial asks the court to follow the majority of district
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courts in this Circuit and apply the standard set forth in Columbia
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Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-79 (N.D. Cal. 1999).
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Under Columbia, the moving party must: “(1) identify the defendant
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with enough specificity to allow the Court to determine whether the
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defendant is a real person or entity who could be sued in federal
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court; (2) recount the steps taken to locate the defendant; (3)
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show that its action could survive a motion to dismiss; and (4)
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file a request for discovery with the Court identifying the persons
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or entities on whom discovery process might be served and for which
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there is a reasonable likelihood that the discovery process will
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lead to identifying information.”
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at *2.
SBO Pictures, 2011 WL 6002620,
Other courts, however, have imposed a more stringent third
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requirement - that the plaintiff “submit evidence sufficient to
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defeat summary judgment” or “make a prima facie evidentiary
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showing.”
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prima facie standard appropriate); see also Brief of Amicus Curiae
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Electronic Frontier Foundation in Support of Motion to Quash
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Subpoena, First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241
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(N.D. Ill. 2011) (No. 1:10-cv-06254), at 19-20 (arguing in favor of
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the summary judgment standard).
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SaleHoo Group, 722 F. Supp. 2d at 1216 (finding the
The court need not decide among these variations here, as
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Celestial’s discovery request fails even under Columbia’s more-
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lenient “motion to dismiss” standard.
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finds that Celestial’s Complaint would not survive a motion to
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dismiss for lack of personal jurisdiction.
Celestial does not
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address jurisdiction at all in its Motion.
In its Complaint,
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however, Celestial alleges that Defendants “reside in, solicit,
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transact, or are doing business within the jurisdiction,” because
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“[g]eo locating tools” have placed the IP addresses of the Doe
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Defendants in California.
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not make any representations as to the reliability or level of
In particular, the court
But Celestial also states that it “does
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accuracy of IP address geo-location tools.”
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Nor does Celestial provide any details regarding the tools used or
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the results.
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(Compl. ¶¶ 2-3 & n.1)
Celestial also alleges in its Complaint that its film displays
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“the title of the work, the name of the producer, and the Woodland
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Hills, California address of the producer.”
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Celestial’s suggestion, this allegation alone is insufficient to
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support a finding that “Defendants expressly aimed their tortious
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acts against” a California company, as required for specific
Contrary to
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jurisdiction.
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651, 2012 WL 28788, at *2-7 (S.D. Cal. Jan. 4, 2012) (granting
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defendant’s motion to dismiss for lack of personal jurisdiction,
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after explaining in detail the insufficiency of similar
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allegations).2
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See Liberty Media Holding, LLC v. Tabora, No. 11-cv-
Accordingly, because Celestial’s Complaint would not survive a
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motion to dismiss, the court denies Celestial’s Motion without
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prejudice.
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able to adequately address personal jurisdiction, as well as the
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other significant issues raised by courts in similar actions - most
Celestial can move again for early discovery if it is
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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)).
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notably, with regard to joinder.3
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jurisdictional issue, the court hereby orders Celestial to show
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cause why the matter should be not dismissed on this ground.
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III. CONCLUSION
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Further, in light of the
For all of these reasons, the court hereby DENIES Celestial’s
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Motion for early discovery.
Additionally, the court orders
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Celestial to file a brief, not to exceed ten pages, by March 30,
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2012, to show cause why this matter should not be dismissed for
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lack of personal jurisdiction.
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IT IS SO ORDERED.
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Dated: March 23, 2012
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DEAN D. PREGERSON
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United States District Judge
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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).
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