Skout, Inc v. Jen Processing, Ltd et al

Filing 15

ORDER RE: PLAINTIFFS EX PARTE MOTION FOR EXPEDITED DISCOVERY 14 by Magistrate Judge Jacqueline Scott Corley.(jsclc2, COURT STAFF) (Filed on 8/7/2014)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

SKOUT, INC,

Case No. 14-cv-02341-JSC
Plaintiff,

8
v.
9
10

JEN PROCESSING, LTD, et al.,
Defendants.

ORDER RE PLAINTIFF’S EX PARTE
MOTION FOR EXPEDITED
DISCOVERY
Re: Dkt. No. 14

United States District Court
Northern District of California

11
12
13

Plaintiff Skout, Inc. (“Skout”), a California corporation which provides a free location-

14

based platform for chatting with people online, alleges that Defendants are spammers who create

15

fake Skout profiles to lure Skout users to websites owned by Defendants or their affiliates.

16

Plaintiff sues for breach of contract, fraud, and violation of Business and Professions Code Section

17

17200. Plaintiff has attempted unsuccessfully to serve the named Defendants all of which are

18

foreign corporations. Having been unable to serve the named Defendants thus far, Plaintiff seeks

19

leave to conduct early discovery to identify Does 1-4 by serving subpoenas on non-party proxy

20

registration services. Having considered Plaintiff’s arguments and the relevant authority, the

21

Court DENIES the motion for early discovery without prejudice.

22

BACKGROUND

23

Skout is a free location-based web platform that allows registered users to meet and chat

24

with other users. (Dkt. No. 1 ¶ 18.) Skout users send messages to each other through the Skout

25

platform. (Id. ¶ 19.) Plaintiff alleges that Defendants are spammers who have created fake Skout

26

profiles, which they use to send fraudulent links to lure Skout’s users onto their own websites, for

27

their own commercial gain. (Id. ¶ 1.) In particular, Defendants are alleged to use bots or other

28

automated techniques to direct Skout users to pornographic websites owned by Defendants or their

1

business affiliates. (Id. ¶ 32.)

2

Defendants’ spamming activity has negatively affected Skout users’ experience, damaged

3

the users’ good will towards Skout, and caused some Skout users to terminate their accounts. (Id.

4

¶ 25.) Skout has also lost prospective business relationships, and been forced to spend substantial

5

amounts of money, time, and other resources, to combat the spam. (Id. ¶ 25.)

6

The named defendants—Jen Processing, LTD, Infium, LTD, CityNet Line, V.A.N.

7

Kereskedelmi es Szolgaltato Beteti Tarsasag, and Epiohost LTD—are all foreign corporations

8

doing business in California. (Id. ¶¶ 3-7.) Plaintiff has been unable to find valid physical

9

addresses for any of these Defendants other than Defendant Jen Processing, LTD. (Dkt. No. 14 at
3.) Plaintiff is attempting to serve Defendant Jen Processing, LTD, a United Kingdom

11
United States District Court
Northern District of California

10

corporation, in accordance with the Hague Convention, but this process is estimated to take

12

several months. (Id.)

13

Plaintiff alleges that Does 1-4 are companies or businesses doing business in the state of

14

California who own and operate specified domain names (websites) used by the spammers. (Dkt.

15

No. 1 ¶¶ 8-11.) However, Plaintiff alleges that Does 1-4 use proxy registration services to conceal

16

their identities by having the proxy registration services replace the website owner’s information

17

in the public Whois directory with the proxy registration service’s own information. (Dkt. No. 14

18

at 3:16-23.) Plaintiff contends that through a search of the publicly available Whois directory it

19

discovered the following information regarding the proxy registration services used by Does 1-4.

20

(Dkt. No. 14-1 ¶ 4.) Doe 1 owns and operates the domain xxxblackbook.com which uses Contact

21

Privacy Inc. as its proxy registration service. (Id.) Doe 2 owns and operates the domain

22

paydirtdollars.com and uses Domains By Proxy, LLC as its proxy registration service. (Id.) Doe

23

3 owns and operates the domains mywebcamcrush.com, webcamflushcrush.com,

24

camflushcrush.com, blamcams.com, flirtyinvitations.com, sunnydollars.net,

25

disrespectmybody.com, cambayHD.com, and nervoustv.com and uses Moniker Privacy Services

26

as its proxy registration service. (Id.) Doe 4 owns and operates the domain cam555.com using

27

Whoisguard Protected as its proxy registration service. (Id.)

28

Plaintiff seeks leave to propound subpoenas pursuant to Federal Rule of Civil Procedure 45
2

1

on the non-party proxy registration services to discover the identities of Does 1-4. 1

2

LEGAL STANDARD

3

Federal Rule of Civil Procedure 26(d)(1) requires a court order for discovery if it is

4

requested prior to a Rule 26(f) conference between the parties. Generally, a “good cause” standard

5

applies to determine whether to permit such early discovery. Semitool, Inc. v. Tokyo Electron Am.,

6

Inc., 208 F.R.D. 273, 276 (N.D.Cal. 2002). “Good cause may be found where the need for

7

expedited discovery, in consideration of the administration of justice, outweighs the prejudice of

8

the responding party.” Id.
To determine whether there is “good cause” to permit expedited discovery to identify doe

9
10

defendants, courts consider whether:
(1) the plaintiff can identify the missing party with sufficient specificity such that
the Court can determine that defendant is a real person or entity who could be sued
in federal court; (2) the plaintiff has identified all previous steps taken to locate the
elusive defendant; (3) the plaintiff’s suit against defendant could withstand a
motion to dismiss; and (4) the plaintiff has demonstrated that there is a reasonable
likelihood of being able to identify the defendant through discovery such that
service of process would be possible.

United States District Court
Northern District of California

11
12
13
14
15
16

OpenMind Solutions, Inc. v. Does 1–39, No. 11–3311, 2011 WL 4715200, at *2 (N.D. Cal. Oct.7,
2011) (citing Columbia Ins. Co.v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D.Cal.1999)).

17

DISCUSSION

18
19
20
21
22
23
24
25

Prior to seeking early discovery, Plaintiff must demonstrate that it has “ma[d]e a good faith
effort to comply with the requirements of service of process and specifically identify[]
defendants.” Columbia Ins. Co., 185 F.R.D. at 579. In Columbia, Plaintiff sought leave to conduct
early discovery to likewise discover the identity of the owners or operators of certain domain
names. Id. The court found that Plaintiff had made a sufficient good faith effort to identify the
unknown defendant where plaintiff’s counsel called the phone numbers listed in the Whois
directory and sent email and hardcopies of the pending motions to the contact information listed
on Whois. Id.

26
27
1

28

Plaintiff has not provided the Court with copies of the subpoenas it proposes to propound on
these proxy registration services.
3

Plaintiff has not made similar efforts here; instead, it merely alleges that it consulted the

1
2

publicly available Whois directory. It insists that because the Whois directory listing suggests that

3

each domain name is registered through a proxy registration service which masks the true identity

4

of the website owner or operator it has made sufficient efforts to discover the identity of these doe

5

defendants. Proxy registration services, such as those Plaintiff proposes to subpoena here, provide

6

a service to domain name holders whereby their contact information is listed in the Whois

7

directory maintained by the Internet Corporation for Assigned Names and Numbers (“ICANN”)

8

instead of the actual domain name holder. See Balsam v. Tucows Inc., 627 F.3d 1158, 1159 (9th

9

Cir. 2010) (discussing the responsibilities of domain registration services). Plaintiff does not
allege that it made any effort to contact anyone through the information listed in the Whois

11
United States District Court
Northern District of California

10

directory for the specified websites, although contact information for the proxy registration

12

services is provided on Whois. Moreover, each of the proxy registration services—Domains By

13

Proxy, LLC, Contact Privacy Inc., Moniker Privacy Services, and Whoisguard Protected—include

14

information on their websites about making an inquiry or complaint regarding a domain name

15

under their control. See, e.g., https://www.domainsbyproxy.com/default.aspx (Domains By Proxy,

16

LLC )(last visited August 5, 2014); https://www.contactprivacy.com/ (Contact Privacy Inc.)(last

17

visited August 5, 2014); http://www.moniker.com/legal/report-abuse (Moniker Privacy

18

Services)(last visited August 5, 2014); and http://www.whoisguard.com/report-

19

spam.asp?type=whoisguard-protected&from=index (Whoisguard Protected)(last visited August 5,

20

2014).

21

There is nothing in the record that suggests Plaintiff attempted to contact the proxy

22

registration services prior to filing this motion. It may well be that inquiring of the proxy

23

registration services without a court-issued subpoena will not be fruitful. But making such

24

inquiries is not burdensome and until Plaintiff makes the inquiries, or submits other evidence or an

25

allegation that suggests that the proxy services will not reveal the identity of a spammer absent a

26

subpoena, the Court cannot find that they will not result in the information Plaintiff seeks, at least

27

on this record. Plaintiff has thus failed to demonstrate that it made a sufficient effort to identify

28

the owners or operators of the domain names at issue through reasonably available mechanisms
4

1
2

prior to seeking leave to conduct early discovery.
Accordingly, because the record does not reflect any effort on the part of Plaintiff to

3

identify the doe defendants through the contact information provided in the Whois database prior

4

to seeking permission to issue Rule 45 subpoenas on the proxy registration services, Plaintiff has

5

failed to establish good cause to issue the subpoenas and the motion is denied without prejudice.

6

Any renewed motion for early discovery should attach the proposed subpoenas.

7
8
9
10

United States District Court
Northern District of California

11

This Order disposes of Docket No. 14.
IT IS SO ORDERED.
Dated: August 7, 2014
______________________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5