Boy Racer, Inc v. Does 1-52

Filing 25

ORDER by Judge Paul S. Grewal denying 22 Motion for Certificate of Appealability (psglc2, COURT STAFF) (Filed on 11/16/2011)

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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BOY RACER, INC.,
Plaintiff,
v.
DOES 1-52,
Defendants.

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Case No.: C 11-2329 PSG
ORDER DENYING PLAINTIFF’S
MOTION TO CERTIFY ORDER FOR
IMMEDIATE APPEAL AND FOR
STAY PENDING APPEAL
(Re: Docket No. 22)

In this copyright infringement suit, Plaintiff Boy Racer, Inc. (“Boy Racer”) seeks

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certification for interlocutory appeal of the court’s September 22, 2011 order denying Boy Racer

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further expedited discovery against unnamed Doe Defendant “Doe 1.” After the court granted

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limited early discovery as to one Doe Defendant only and severed the other Defendants for

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misjoinder, Boy Racer issued a subpoena to the Internet Service Provider (“ISP”) for the

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identifying information associated with the suspected infringer’s IP address. Upon receiving the

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subpoenaed information, Boy Racer’s counsel contacted and spoke with the ISP subscriber.

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Case No.: 11-2329 PSG
ORDER DENYING PLAINTIFF’S MOTION TO CERTIFY ORDER FOR APPEAL

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Counsel then determined that it had insufficient information to form a “reasonable basis” to name
that person in the suit.1
In an attempt to yet name the defendant, Boy Racer sought further expedited discovery with

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respect to Doe 1. The court found the request for further expedited discovery to be inconsistent

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with Boy Racer’s prior representations – relied upon by the court in granting limited early

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discovery in the first instance – that a subpoena to the ISP would be sufficient to fully identify the

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suspected infringer. Furthermore, the court deemed Boy Racer’s requested follow-up discovery to
be highly intrusive upon the responding party’s privacy rights. Thus, the court found that Boy

United States District Court
For the Northern District of California

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Racer failed to meet considerations of the administration of justice and thereby failed to establish

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“good cause” for early discovery.2 The court denied Boy Racer’s request.3

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Appeal of a non-final order requires the consent of both the district court and the court of
appeals.4 The order subject to appeal must fulfill three requirements: (1) that there be a controlling

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question of law; (2) that there be substantial grounds for difference of opinion; and (3) that an
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immediate appeal may materially advance the ultimate termination of the litigation.5 This
mechanism is to be narrowly applied and used only in “exceptional situations in which allowing an

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See Fed. R. Civ. P. 11(b).

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See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002) (“Good
cause may be found where the need for expedited discovery, in consideration of the administration
of justice, outweighs the prejudice to the responding party.”).

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See Docket No. 17 (September 13, 2011 Order) and Docket No. 21 (September 22, 2011 Order).

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See In re Cement Anti-Trust Litigation, 673 F.2d 1020, 1025-26 (9th Cir. 1982).

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See 28 U.S.C. ' 1292(b) (“When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion that such order involves a
controlling question of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate termination of the
litigation, he shall so state in writing in such order.”) (emphasis added).
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Case No.: 11-2329 PSG
ORDER DENYING PLAINTIFF’S MOTION TO CERTIFY ORDER FOR APPEAL

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interlocutory appeal would avoid protracted and expensive litigation.”6 All three requirements must
be met.7

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At a minimum, the court is not persuaded that the first or second of the requirements is met

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here. It is not enough that “reasonable judges might differ” over application of the facts at hand to

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the “good cause” standard for expedited discovery. Whether “substantial grounds for difference”

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exists under Section 1292(b) depends on the extent to which the controlling law is unclear.8 “That

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settled law might be applied differently does not establish a substantial ground for difference of
opinion.”9 Here, the order addresses whether the extraordinary remedy of expedited discovery may

United States District Court
For the Northern District of California

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be applied to effectuate multiple rounds of increasingly intrusive discovery on an unnamed party

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when the initial representation to the court proved to be inaccurate. While courts in this district

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may vary in their application of the good cause standard to expedited discovery requests in similar

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cases, Boy Racer cites to no other case involving a further request for expedited discovery or
evaluating the effect of a party’s representations on the “good cause” analysis.10 As in the Ninth

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Circuit’s decision affirming the district court’s denial of certification in Couch, Boy Racer has “not

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provided a single case that conflicts with the district court’s construction or application” of the

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“good cause” standard on a request for further expedited discovery.11

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Because Boy Racer cannot establish that the court’s order denying further discovery

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involves a “controlling question of law” about which there are “substantial grounds for difference

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See In re Cement Anti-Trust Litigation, 673 F.2d at 1026.

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See Couch v. Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010).

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See Couch, 611 F.3d at 633.

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Id.

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See id. (affirming a denial of certification in part because the party seeking appeal failed to
present “‘identification of a sufficient number of conflicting and contradictory opinions’”) (quoting
Union County, Iowa v. Piper Jaffay & Co., 525 F.3d 643, 647 (8th Cir. 2008)).

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See id.
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Case No.: 11-2329 PSG
ORDER DENYING PLAINTIFF’S MOTION TO CERTIFY ORDER FOR APPEAL

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of opinion,” it is not enough that immediate appeal “may materially advance the ultimate

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determination of the litigation.” For these reasons, the court hereby DENIES Boy Racer’s motion

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to certify the September 22 Order to the Ninth Circuit for its consideration.

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IT IS SO ORDERED.

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Dated: November 16, 2011
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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United States District Court
For the Northern District of California

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Case No.: 11-2329 PSG
ORDER DENYING PLAINTIFF’S MOTION TO CERTIFY ORDER FOR APPEAL