Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.33.80.124
Filing
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ORDER granting 8 Plaintiff's Ex Parte Motion to Serve Third Party Subpoena. Signed by Magistrate Judge Virginia K. DeMarchi on 10/23/2024. (vkdlc1, COURT STAFF) (Filed on 10/23/2024)
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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. 24-cv-06821-VKD
v.
JOHN DOE SUBSCRIBER ASSIGNED IP
ADDRESS 98.33.80.124,
ORDER GRANTING PLAINTIFF'S EX
PARTE MOTION TO SERVE THIRD
PARTY 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 Communications, LLC (“Comcast Cable”) 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 Cable, the above-referenced subscriber’s internet service provider. See Gillespie v.
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Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); UMG Recording, Inc. v. Doe, No. C08-1193 SBA,
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2008 WL 4104214, at *4 (N.D. Cal. Sept. 3, 2008). Strike 3 has demonstrated that (1) it can
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identify the defendant with sufficient specificity such that the Court can determine that the
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defendant is a real person or entity who could be sued in federal court, (2) it has identified
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previous steps taken to locate the elusive defendant, (3) its action against the defendant could
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withstand a motion to dismiss, and (4) there is a reasonable likelihood of being able to identify the
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defendant through discovery such that service of process would be possible. See Columbia Ins.
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Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). Additionally, Strike 3’s
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application indicates that Strike 3 has satisfied the registration requirements under 17 U.S.C.
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§ 411(a) for commencing a copyright infringement lawsuit. Fourth Estate Public Benefit Corp. v.
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Wall-Street.com, LLC, 139 S. Ct. 881 (2019). Once Strike 3 learns the defendant’s identity, it
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cannot rely on a bare allegation that a defendant is the registered subscriber of an internet protocol
United States District Court
Northern District of California
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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 Cable commanding Comcast
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Cable to provide Strike 3 with the true name and address of the subscriber to whom Comcast
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assigned IP address 98.33.80.124. Strike 3 shall attach a copy of this order to any such subpoena.
2.
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Comcast Cable 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 Cable. Comcast
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Cable may serve the subscriber using any reasonable means, including written notice sent to the
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subscriber’s last known address, transmitted either by first-class mail or via overnight service.
3.
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Strike 3 may only use the information disclosed in response to a Rule 45 subpoena
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served on Comcast Cable for the purpose of protecting and enforcing Strike 3’s rights as set forth
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in its complaint.
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4.
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Comcast Cable may object to the Rule 45 subpoena, and may also seek a protective
order.
If Comcast Cable produces information regarding the identity of the subscriber to Strike 3,
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Strike 3 shall not publicly disclose that information absent consent of the subscriber or leave of
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court.
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IT IS SO ORDERED.
Dated: October 23, 2024
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Virginia K. DeMarchi
United States Magistrate Judge
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