Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.45.75.178

Filing 9

ORDER by Magistrate Judge Virginia K. DeMarchi granting #8 plaintiff's Ex Parte Motion for Leave to Serve Subpoena. (vkdlc2, COURT STAFF) (Filed on 5/6/2022)

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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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STRIKE 3 HOLDINGS, LLC,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 22-cv-02232-VKD

v.
JOHN DOE SUBSCRIBER ASSIGNED IP
ADDRESS 98.45.75.178,

ORDER GRANTING EX PARTE
MOTION FOR LEAVE TO SERVE
SUBPOENA
Re: Dkt. No. 8

Defendant.

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Plaintiff Strike 3 Holdings, LLC (“Strike 3”) seeks leave to serve a third-party subpoena on
Comcast Cable (“Comcast”) prior to a Rule 26(f) conference.
Strike 3 has established that good cause exists for it to serve a third-party subpoena on

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Comcast, the above-referenced subscriber’s internet service provider. See Gillespie v. Civiletti,

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629 F.2d 637, 642 (9th Cir. 1980); UMG Recording, Inc. v. Doe, No. C08-1193 SBA, 2008 WL

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4104214, at *4 (N.D. Cal. Sept. 3, 2008). Strike 3 has demonstrated that (1) it can identify the

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defendant with sufficient specificity such that the Court can determine that the defendant is a real

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person or entity who could be sued in federal court, (2) it has identified previous steps taken to

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locate the elusive defendant, (3) its action against the defendant could withstand a motion to

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dismiss, and (4) there is a reasonable likelihood of being able to identify the defendant through

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discovery such that service of process would be possible. See Columbia Ins. Co. v.

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Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). Additionally, Strike 3’s application

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indicates that Strike 3 has satisfied the registration requirements under 17 U.S.C. § 411(a) for

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commencing a copyright infringement lawsuit. Fourth Estate Public Benefit Corp. v. Wall-

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Street.com, LLC, 139 S. Ct. 881 (2019). Once Strike 3 learns the defendant’s identity, it cannot

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rely on a bare allegation that a defendant is the registered subscriber of an internet protocol

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address associated with infringing activity to state a plausible claim for direct or contributory

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copyright infringement. Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142, 1144 (9th Cir. 2018).

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However, at this stage of these proceedings, and upon the record presented, Strike 3 properly may

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serve discovery to ascertain the defendant’s identity. See generally Glacier Films (USA), Inc. v.

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Turchin, 896 F.3d 1033, 1036, 1038 (9th Cir. 2018) (observing that the district court’s case

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management order permitting “limited discovery from an Internet Service Provider to establish a

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potential infringer’s identity” was “a sensible way to manage its dockets . . . .”).

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Accordingly, the Court grants Strike 3’s application and orders as follows:
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Strike 3 may serve a Rule 45 subpoena on Comcast commanding Comcast to

United States District Court
Northern District of California

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provide Strike 3 with the true name and address of the subscriber to whom Comcast assigned IP

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address 98.45.75.178. Strike 3 shall attach a copy of this order to any such subpoena.

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2.

Comcast shall serve a copy of the subpoena and a copy of this order on the

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subscriber within 30 days of the date of service of the subpoena on Comcast. Comcast may serve

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the subscriber using any reasonable means, including written notice sent to the subscriber’s last

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known address, transmitted either by first-class mail or via overnight service.

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3.

Strike 3 may only use the information disclosed in response to a Rule 45 subpoena

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served on Comcast for the purpose of protecting and enforcing Strike 3’s rights as set forth in its

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complaint.

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4.

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If Comcast produces information regarding the identity of the subscriber to Strike 3, Strike

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Comcast may object to the Rule 45 subpoena, and may also seek a protective order.

3 shall not publicly disclose that information absent consent of the subscriber or leave of court.
IT IS SO ORDERED.
Dated: May 6, 2022

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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