Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 172.9.236.61

Filing 8

ORDER by Judge Edward M. Chen granting 7 Ex Parte Application 7 Ex Parte Application for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference; Memorandum of Points and Authorities in Support Thereof. (emclc1, COURT STAFF) (Filed on 10/28/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STRIKE 3 HOLDINGS, LLC,
Plaintiff,

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Case No. 24-cv-06062-EMC

v.
JOHN DOE subscriber assigned IP address
172.9.236.61,

ORDER GRANTING PLAINTIFF’S EX
PARTE APPLICATION FOR LEAVE
TO SERVE A THIRD-PARTY
SUBPOENA PRIOR TO RULE 26(F)
CONFERENCE

United States District Court
Northern District of California

Defendant.
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Docket No. 7

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Plaintiff Strike 3 Holdings, LLC (“Strike 3”) has filed a copyright infringement action

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against Defendant John Doe. Strike 3 alleges that Mr. Doe has infringed 24 of Strike 3’s motion

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pictures using BitTorrent protocol. Docket No. 1 (Complaint) ¶ 4. Currently pending before the

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Court is Strike 3’s ex parte application for leave to serve a third-party subpoena prior to a Rule

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26(f) conference. Docket No. 7.

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I.

DISCUSSION

The Court has reviewed the application and supporting materials, as well as the complaint.

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See, e.g., Docket No. 7-1 Ex. A (Declaration of Jorge Arco) ¶¶ 34–36 (testifying that Strive 3

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“strives to only file strong cases against extreme infringers . . . only those infringers who engage

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not only in illegal downloading, but also in large scale unauthorised distribution of our content,”

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“do[es] not seek settlements unless initiated by the defendant or their counsel,” “do[es] not send

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demand letters,” and “are careful not to proceed with a case against a defendant unless we feel we

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have a strong case and a good faith basis”); Docket No. 7-1 Ex. B (Declaration of Patrick Paige)

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¶¶ 16–18, 26 (testifying that upon reviewing the PCAP (packet capture), confirming that “the

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PCAP is evidence of a recorded transaction with IP address 172.9.236.61 on 08/08/2024 15:45:02

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UTC” that “uploaded a piece or pieces of a file corresponding to hash value

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AD80D5F3B8D3C2EDCFECDEC4F88BB80A5CA8F385 to VXN Scan”); Docket No. 7-1 Ex. C

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(Declaration of Susan Stalzer) ¶ 11 (testifying that each infringing file was a copy of one of Strike

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3’s motion pictures that is “identical, strikingly similar, or substantially similar to the original

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work”); Docket No. 7-1 Ex. D (Declaration of Emilie Kennedy) ¶¶ 4–8 (confirming that the IP

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address 172.9.236.61 traced to a location in Dublin, California).

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3 Holdings, LLC v. Doe, No. C-18-05994-EMC (N.D. Cal. Nov. 6, 2018) (Docket No. 10), the

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Court GRANTS the application for what is, in effect, limited early discovery.

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United States District Court
Northern District of California

For reasons similar to those articulated in another Strike 3 case before the Court, see Strike

The Court notes, however, that, although it is permitting limited early discovery, it is not

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precluding Mr. Doe from filing a 12(b)(6) motion to dismiss nor is it prejudging any such motion.

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The Court also advises Strike 3 that, upon obtaining the name and address of Mr. Doe, it has a

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Rule 11 obligation to determine whether to proceed with the lawsuit and, in that regard, it should

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be mindful of the Ninth Circuit’s decision in Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142,

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1144 (9th Cir. 2018) (stating that “a bare allegation that a defendant is the registered subscriber of

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an Internet Protocol (‘IP’) address associated with infringing activity is [in]sufficient to state a

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claim for direct or contributory infringement”).

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II.

CONCLUSION

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It is hereby ORDERED that Plaintiff may immediately serve a Rule 45 subpoena on

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AT&T Inc. (AT&T Internet) to obtain the true name and address of the Doe Defendant at IP

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address 172.9.236.61. A copy of this Order must be attached to the subpoena, and any

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information disclosed to Plaintiff in response to the subpoena may be used by Plaintiff solely for

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the purpose of serving Defendant and prosecuting the claims asserted in the complaint.

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It is further ORDERED that AT&T Internet will have 30 days from the date of service
upon it to serve the Doe Defendant with a copy of the subpoena and a copy of this Order.

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It is further ORDERED that the Doe Defendant will have 30 days from the date of service

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upon him of this Order to file any motions contesting the subpoena with this Court. If that 30-day

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period lapses without the Doe Defendant contesting the subpoena, AT&T Internet shall produce
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the information responsive to the subpoena to Plaintiff within 10 days.

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It is further ORDERED that Plaintiff shall not publicly disclose any of the Doe

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Defendant’s identifying information until he has had the opportunity to file a motion with this

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Court for leave to proceed anonymously and that motion is ruled on by the Court. The Doe

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Defendant will have 30 days from the date of service upon him to file such a motion, and he may

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file the motion under seal.

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This order disposes of Docket No. 7.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: October 28, 2024

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______________________________________
EDWARD M. CHEN
United States District Judge

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