Pacific Century International LTD v. Does 1-101

Filing 30

Order by Magistrate Judge Donna M. Ryu denying 28 Motion for Certificate of Appealability.(dmrlc2, COURT STAFF) (Filed on 11/15/2011)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 PACIFIC LTD., CENTURY INTERNATIONAL 7 No. C-11-2533-DMR ORDER DENYING PLAINTIFF’S MOTION TO CERTIFY THE COURT’S OCTOBER 27, 2011 ORDER FOR INTERLOCUTORY REVIEW BY THE NINTH CIRCUIT COURT OF APPEALS Plaintiff(s), 8 v. 9 DOES 1-101, 11 For the Northern District of California United States District Court 10 Defendant(s). ___________________________________/ 12 Plaintiff moves the court pursuant to 28 U.S.C. § 1292(b) to certify its October 27, 2011 13 order denying Plaintiff’s ex parte motion to take expedited discovery [Docket No. 27] for immediate 14 interlocutory appeal. The court denies Plaintiff’s motion. 15 I. Background 16 Plaintiff filed this action to stop Defendants from reproducing and distributing its 17 copyrighted work via peer-to-peer file swapping networks. (Am. Compl. ¶¶ 1, 7. See generally 18 Compl.) Because the alleged infringement occurred on the Internet, Defendants acted under the 19 guise of their Internet Protocol (“IP”) addresses rather than their real names. (Am. Compl. ¶ 8.) 20 Therefore, Plaintiff cannot determine Defendants’ true identities without procuring the information 21 from their respective Internet Service Providers (“ISPs”), which can link the IP addresses to a real 22 individual or entity. (Am. Compl. ¶ 8.) 23 On May 26, 2011, Plaintiff filed an ex parte motion to take limited discovery and issue 24 subpoenas to the relevant ISPs so that the ISPs would produce the name, address, telephone number, 25 e-mail address, and Media Access Control information attached to each IP address that Plaintiff had 26 discovered through its own investigations. (Pl.’s Ex Parte Application for Leave to Take Expedited 27 Discovery 1-3, Ex. A.) The court granted Plaintiff’s motion as to Defendant Doe 1 on July 8, 2011 28 1 and severed the remaining Defendants from the case, because Plaintiff had not met the requirements 2 for permissive joinder under Federal Rule of Civil Procedure 20(a)(2). [Docket No. 7.] Nearly three 3 months later, Plaintiff filed an amended complaint which sought to address the court’s joinder 4 concerns. (See Am. Compl. ¶¶ 9-30.) Plaintiff then renewed its ex parte motion to take limited 5 discovery. [Docket No. 22.] designed, had the potential to draw numerous innocent internet users into the litigation, placing a 8 burden upon them that outweighs Plaintiff’s need for discovery. Pac. Century Int’l Ltd. v. Does 1- 9 101, No. 11-2533, 2011 WL 5117424, at *2 (N.D. Cal. Oct. 27, 2011). Specifically, the court held 10 that Plaintiff had not shown good cause to partake in expedited discovery, because granting Plaintiff 11 For the Northern District of California After much consideration, the court found that Plaintiff’s sought-after discovery, as 7 United States District Court 6 the form of relief that it requested would allow Plaintiff to subpoena ISPs to obtain the detailed 12 personal information of unknown numbers of innocent individuals that Plaintiff could never make 13 party to this suit and potentially subject them to onerous, invasive discovery and/or unfair settlement 14 tactics.1 Id. The court therefore denied Plaintiff’s motion and ordered that, once Plaintiff receives a 15 response to its subpoena to Doe 1, Plaintiff take no further action with respect to Doe 1, be it further 16 discovery or sending Doe 1 a settlement letter. Id. at *4. Rather, the court ordered Plaintiff to 17 submit a new motion for expedited discovery as to Doe 1 that sets forth with specificity a discovery 18 plan that addresses the court’s concerns about the discovery process as expressed in the order. Id. 19 The court also severed Defendant Does 2-101 from the case due to case management concerns 20 unrelated to the present motion. Id. at *3. 21 22 23 24 Plaintiff now moves the court to certify the following question of law to the Court of Appeals for the Ninth Circuit: A Defendant’s identity is unknown to the Plaintiff. Instead, the Defendant is associated with an Internet Protocol (IP) address. Internet Service Providers (ISPs) know identity and contact information of the subscriber associated with the IP 25 1 26 27 28 The court noted the that under Plaintiff’s present discovery plan, “[p]resumably, every desktop, laptop, smartphone, and tablet in the subscriber’s residence, and perhaps any residence of any neighbor, houseguest or other sharing his internet access, would be fair game. Beyond such an inspection, [the plaintiff] might require still more discovery, including interrogatories, document requests and even depositions.” Pac. Century Int’l Ltd., 2011 WL 5117424, at *2 (quoting Boy Racer, Inc. v. Does 1-52, No. C-11-2329-PSG, at *4 (N.D. Cal. Sept. 13, 2011) (footnote omitted)). 2 1 3 address over which infringing activity was observed. Without such information, Plaintiff would be unable to prosecute its case. Is Plaintiff entitled to discovery of the subscriber’s contact information by serving ISPs with a subpoena duces tecum under Fed. R. Civ. P. 45 where the subscriber’s information is necessary, but not always sufficient (without further limited discovery), to ascertain the Defendant’s identity? 4 (Pl.’s Mot. to Certify the Court’s Oct. 27, 2011 Order for Interlocutory Review by the Ninth Circuit 5 Court of Appeals (“Pl. Mot.”) 2.) 2 6 II. Standard of Review 7 A court will grant a petition for interlocutory appeal pursuant to 28 U.S.C. § 1292 if the for difference of opinion and [3] that an immediate appeal from the order may materially advance 10 the ultimate termination of the litigation.” § 1292(b); see Couch v. Telescope, Inc., 611 F.3d 629, 11 For the Northern District of California moving party shows “[1] a controlling question of law [2] as to which there is a substantial ground 9 United States District Court 8 633 (9th Cir. 2010); see also Fed. R. App. P. 5(a)(3). The court will take the “exceptional” step of 12 deeming a question of law “controlling” if “resolution of the issue on appeal could materially affect 13 the outcome of litigation in the district court.” In re Cement Antitrust Litig., 673 F.2d 1020, 1026 14 (9th Cir. 1982) (citation omitted). That the resolution of the issue “may appreciably shorten the 15 time, effort, or expense of conducting a lawsuit” does not suffice. Id. at 1027 (citations omitted). A 16 “substantial ground for difference of opinion” exists when “the circuits are in dispute on the question 17 and the court of appeals of the circuit has not spoken on the point . . . or if novel and difficult 18 questions of first impression are presented.” Couch, 611 F.3d at 633 (citation and quotation marks 19 omitted). 20 III. Discussion 21 Plaintiff’s proposed petition does not raise a controlling question of law.2 Plaintiff correctly 22 asserts that “[w]ithout being allowed to ascertain an anonymous defendant’s name, [its] case cannot 23 proceed and its action against the anonymous Doe Defendant [Doe 1] will inevitably be dismissed 24 by the Court under Fed. R. Civ. P. 4(m).” (Pl. Mot. 2-3.) However, the court disagrees with 25 Plaintiff’s contention that Plaintiff cannot craft a discovery plan that addresses the concerns that led 26 the court to deny Plaintiff’s motion and temporarily suspend further action with respect to Doe 1. 27 2 28 Because the court denies Plaintiff’s motion on the first prong of the §1292 test, it does not address whether Plaintiff has shown “a substantial ground for difference of opinion.” § 1292(b). 3 made misrepresentations to the court and attempted to “obfuscate the significant degree of discovery 3 required to uncover Defendants’ identities,” these factors did not form the basis for the court’s 4 finding that Plaintiff failed to show good cause to warrant expedited discovery. Pac. Century Int’l 5 Ltd., 2011 WL 5117424, at *4. (But see Pl. Mot. 1, 3-4.) The court denied Plaintiff’s motion due to 6 concerns about the “burdens of the potentially expansive and intrusive discovery that Plaintiff may 7 need to propound to obtain Defendants’ identities” and the coinciding real potential for Plaintiff to 8 employ “abusive settlement tactics” once it receives Doe 1’s personal information. Pac. Century 9 Int’l Ltd., 2011 WL 5117424, at *2 (citing On the Cheap, LLC v. Does 1–5011, No. 10-4472-BZ, 10 2011 WL 4018258, at *3 & n. 6, 4 (N.D. Cal. Sept. 6, 2011); Am. Legalnet, Inc. v. Davis, 673 F. 11 Supp. 2d 1063, 1066 (C.D. Cal. 2009); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 12 276 (N.D. Cal. 2002)). Nevertheless, the court believes that Plaintiff can develop a discovery 13 proposal that will secure Plaintiff the information that it needs while precluding abuse of the 14 discovery process. Contrary to Plaintiff’s assertion, it has not entered a “procedural cul-de-sac from 15 which there is no appeal.” (Pl. Mot. 2.) 16 20 S IT IS SO ORDERED. D DENIE RT U O 19 ISTRIC ES D TC AT T 21 NO Dated: November 15, 2011 RT ER H 23 A 22 . Ryu onna M Judge D R NIA to certify for interlocutory appeal, the motion is DENIED. FO 18 Because Plaintiff has not presented the court with a controlling question of law in its motion LI 17 IV. Conclusion UNIT ED For the Northern District of California (See Pl. Mot. 3.) Although the court expressed its dismay that Plaintiff’s counsel previously had 2 United States District Court 1 N C D IS DONNA M. RYUT R I C T O F United States Magistrate Judge 24 25 26 27 28 4

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