Boy Racer, Inc v. Does 1-71

Filing 8

ORDER GRANTING-IN-PART MOTION FOR LEAVE TO TAKE LIMITED DISCOVERY PRIOR TO RULE 26(F) CONFERENCE, re 6 . Signed by Judge Paul S. Grewal on May 31, 2011. (psglc2, COURT STAFF) (Filed on 5/31/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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BOY RACER, INC.,
Plaintiff,

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v.
DOES 1-71,

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Defendants.

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Case No.: 11-CV-1958-PSG
ORDER GRANTING-IN-PART
MOTION FOR LEAVE TO TAKE
LIMITED DISCOVERY PRIOR TO
RULE 26(F) CONFERENCE
(Re: Docket No. 6)

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On April 22, 2011, Plaintiff Boy Racer, Inc. (“Boy Racer”) filed this lawsuit for copyright
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infringement against 71 separate “Doe” Defendants. Ordinarily, Fed. R. Civ. P. 26(d)(1) precludes

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discovery before the conference required under the Fed. R. Civ. P. 26(f). Pursuant to the court’s
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scheduling order, the parties were to meet as required by Fed. R. Civ. P. 26(f) no later than June
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21, 2011. Boy Racer now moves for leave to take discovery in advance of June 21, 2011. Boy
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Racer specifically seeks leave to serve subpoenas on several enumerated ISPs to obtain the true
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identities of Doe Defendants for purpose of service in accordance with Fed. R. Civ. P. 4.
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Boy Racer’s motion raises the same issues as those recently addressed by the court in
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response to a near identical motion for leave to take expedited discovery in Diabolic Video
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Productions, Inc. v. Does 1-2099.1 There, the court granted leave to take expedited discovery, but

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See Diabolic Video Productions, Inc. v. Does 1-2099, No. 5:10-cv-05865-PSG, Amended Order
Granting-In-Part Motion for Leave To Take Limited Discovery Prior to Rule 26(f) Conference
(Docket No. 16).
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Case No.: 11-1958
ORDER

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only as to Doe 1. As to Does 2 through 2,099, the court severed Does 2 through 2,099 and ordered

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the claims against Does 2 through 2,099 reassigned to an Article III judge. The court further

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recommended that the claims against Does 2 through 2,099 be dismissed without prejudice and, if

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refiled within 20 days, deemed continuation of the original action for purposes of the statute of

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limitations.

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The court sees no reason to treat Boy Racer’s motion in this case any differently.

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Accordingly, Boy Racer’s motion therefore is GRANTED, but only as to Doe 1 and as follows.

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IT IS HEREBY ORDERED that Boy Racer is allowed to serve immediate discovery on

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Doe 1’s ISP listed in Exhibit A to the Complaint by serving a Rule 45 subpoena that seeks

United States District Court
For the Northern District of California

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information sufficient to identify Doe 1, including the name, addresses, telephone numbers, and

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email addresses of Doe 1. Boy Racer’s counsel shall include a copy of this order.

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IT IS FURTHER ORDERED that the ISP will have 30 days from the date of service upon it

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to serve Doe 1 with a copy of the subpoena and a copy of this order. The ISP may serve Doe 1

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using any reasonable means, including written notice sent to Doe 1’s last known address,

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transmitted either by first-class mail or via overnight service. The ISP and Doe 1 each shall have

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30 days from the date of service to file any motions in this court contesting the subpoena (including

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a motion to quash or modify the subpoena). If that 30-day period lapses without Doe 1 or the ISP

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contesting the subpoena, the ISP shall have 10 days to produce to Boy Racer the information

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responsive to the subpoena with respect to Doe 1.

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IT IS FURTHER ORDERED that the ISP shall not assess any charge to Boy Racer in

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advance of providing the information requested in the subpoena, and that the ISP that receives a

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subpoena and elects to charge for the costs of production shall provide a billing summary and cost

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reports that serve as a basis for such billing summary and any costs claimed by the ISP.

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IT IS FURTHER ORDERED that the ISP shall preserve all subpoenaed information

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pending the ISP’s delivering such information to Boy Racer or the final resolution of a timely filed

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and granted motion to quash the subpoena with respect to such information.

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Case No.: 11-1958
ORDER

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IT IS FURTHER ORDERED that any information disclosed to Boy Racer in response to a

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subpoena may be used by Boy Racer solely for the purpose of protecting its rights under the

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Copyright Act, 17 U.S.C. § 101 et seq.

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IT IS FURTHER ORDERED that Does 2 through 71 are SEVERED from this action and

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that the claims against Does 2 through 71 be reassigned to an Article III judge. In view of the

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misjoinder described above, the undersigned respectfully recommends that the claims against Does

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2 through 71 be dismissed without prejudice. The undersigned further recommends that if Boy

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Racer can refile separate complaints against Does 2 through 71 within 20 days of this order, such

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actions should be deemed a continuation of the original action for purposes of the statute of

United States District Court
For the Northern District of California

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limitations.2

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IT IS SO ORDERED.

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Dated: May 31, 2011

________________________________
PAUL S. GREWAL
United States Magistrate Judge

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This court is ordering reassignment to an Article III judge because, absent the consent of all
parties, a Magistrate Judge does not have authority to make case-dispositive rulings. See, e.g.,
Tripati v. Rison, 847 F.2d 548, 549 (9th Cir. 1988).
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Case No.: 11-1958
ORDER