808 Holdings, LLC v. Collective of December 29, 2011 Sharing Hash E37917C8EEB4585E6421358FF32F29CD63C23C91 et al
Filing
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ORDER Granting in Part and Denying in Part 3 Motion for Leave to Take Early Discovery. Signed by Magistrate Judge Ruben B. Brooks on 5/4/2012. (All non-registered users served via U.S. Mail Service)(leh)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Civil No. 12cv00186 MMA(RBB)
808 HOLDINGS, LLC, a California )
limited liability company,
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Plaintiff,
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v.
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COLLECTIVE OF DECEMBER 29, 2011 )
SHARING HASH
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E37917C8EEB4585E6421358FF32F29C )
D63C23C91; DOES 1-83,
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inclusive,
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Defendants.
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ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR LEAVE TO TAKE EARLY
DISCOVERY [ECF NO. 3]
On January 24, 2012, Plaintiff filed a Motion for Leave to
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Take Early Discovery, along with a Memorandum of Points and
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Authorities and an exhibit [ECF No. 3].
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been named or served, no opposition or reply briefs have been
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filed.
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indicating that the Plaintiff failed to comply with the local rules
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and obtain a hearing date before filing its Motion for Leave to
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Take Early Discovery [ECF No. 4].
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motion hearing for April 23, 2012, at 10:00 a.m.
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2012, ECF No. 4.)
Because no Defendant has
On March 1, 2012, the Court issued a minute order
The Court sua sponte set a
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(Mins. 1, Mar. 1,
12cv00186 MMA(RBB)
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The Court finds the Plaintiff's Motion for Leave to Take Early
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Discovery suitable for resolution on the papers.
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Civ. R. 7.1(d)(1).
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GRANTED in part and DENIED in part.
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I.
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See S.D. Cal.
PROCEDURAL HISTORY
For the reasons discussed below, the Motion is
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On January 23, 2012, Plaintiff 808 Holdings, LLC ("808
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Holdings") filed a Complaint against Collective of December 29,
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2011 Sharing Hash E37917C8EEB4585E6421358FF32F29CD63C23C91, and
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DOES one through eighty-three ("Defendants") [ECF No. 1].
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Plaintiff does business under the names "Cody Media" and
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"SeanCody.com," and it purports to be the registered owner of, and
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hold the exclusive rights to, the copyright of the motion picture,
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"Brandon & Pierce Unwrapped."
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808 Holdings alleges a claim for copyright infringement, stating
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that Defendants reproduced and distributed Plaintiff's copyrighted
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material through the Internet without authorization of the
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Plaintiff.
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contributory copyright infringement, alleging that Defendants
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illegally obtained the copyrighted motion picture and assisted
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others in doing the same.
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that the Defendants were negligent in failing to adequately secure
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their Internet access to prevent its unlawful use by others.
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at 39-40.)
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(Id. at 36-37.)
(Compl. 1, 3, ECF No. 1.)
First,
Second, 808 Holdings pleads
(Id. at 37-39.)
Third, Plaintiff argues
(Id.
One day after filing the Complaint, on January 24, 2012, 808
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Holdings filed this Motion for Leave to Take Early Discovery to
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learn the identities of the Doe Defendants from their respective
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Internet Service Providers ("ISPs").
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(Mot. Leave Take Early Disc.
12cv00186 MMA(RBB)
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1, ECF No. 3.)1
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directing the ISPs to release the subscriber's identifying
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information.
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interrogatories on, and take the depositions of, the individuals
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identified by the ISPs to determine whether the actual Internet
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subscriber is the proper defendant.
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its Motion a list of the Internet Protocol (“IP”) addresses
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associated with subscribers it hopes to identify as defendants.
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(Id. Attach. #2 Ex. A, at 2-4.)
Specifically, 808 Holdings seeks an order
(Id.)
The Plaintiff also seeks leave to serve
(Id.)
Plaintiff attached to
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II.
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FACTUAL ALLEGATIONS
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In the Complaint, Plaintiff 808 Holdings alleges that the
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eighty-three Doe Defendants collectively infringed its copyrighted
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work using a BitTorrent file transfer protocol.
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1.)
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distributes the motion picture to others, those individuals can
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distribute that infringing copy to other people in "an
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interconnected collective," which builds on prior infringements.
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(Id.)
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users" or "peers" whose computers are connected for the purpose of
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sharing a file, otherwise known as a "swarm."
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Plaintiff alleges that each BitTorrent swarm is associated with a
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particular "hash," which has a specific identifier for the file.
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(Id.)
(Compl. 2, ECF No.
In general, the Plaintiff asserts that each time a Defendant
The Defendants are purportedly a collection of "BitTorrent
(Id. at 3.)
The sharing hash associated with the motion picture is
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Because the pages attached to the Motion are not paginated,
the Court will cite to the Motion for Leave to Take Early Discovery
using the page numbers assigned by the electronic case filing
system.
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12cv00186 MMA(RBB)
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E37917C8EEB4585E6421358FF32F29CD63C23C91 ("E379 Hash").
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4.)
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A.
(Id. at
BitTorrent Protocol
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According to 808 Holdings, the BitTorrent protocol is
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distinguishable from previously used peer-to-peer file sharing
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technology, utilized by Napster or Limewire, because it "allows for
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higher transfer speeds by locating pieces (or 'bits') of the file
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already present on other users' computers and downloading them
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simultaneously."
(Id. at 32.)
"This is done by joining into the
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'swarm,' or collective, of peers to download and upload from each
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other simultaneously."
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downloads than peer-to-peer file sharing technology.
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(Id.)
This process results in faster
(Id.)
Plaintiff describes the process of downloading and uploading
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files through a BitTorrent protocol as "quick and efficient."
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at 33.)
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file on a BitTorrent client application; the user then extracts a
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list with tracker locations that connect to IP addresses that are
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currently running the BitTorrent software and offering to
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distribute the file.
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then begins to download the media file automatically.
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B.
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(Id.
When a user downloads a media file, he or she opens the
(Id.)
The downloader's BitTorrent program
(Id.)
Forming a Swarm
In the Complaint, 808 Holdings maintains that a swarm begins
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with an initial user called the "seeder" who begins to share a file
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with a torrent swarm.
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the seeder to download the media file, which creates a digital copy
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of the file; the process repeats as new members join the swarm,
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increasing the number of users in the swarm.
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both acquires and redistributes the media file by simultaneously
(Id.)
New members of the swarm connect to
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(Id.)
Each member
12cv00186 MMA(RBB)
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uploading and downloading portions of the same digital copy with
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the other members.
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that even if the original seeder leaves the swarm, the media file
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can continue to be downloaded by old and new members.
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C.
(Id. at 33-34.)
Therefore, Plaintiff contends
(Id. at 33.)
The December 29, 2011 Sharing Hash
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Plaintiff claims that on December 29, 2011, each of the
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Defendants "republished, duplicated, and replicated the exact same
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copy and exact same hash file."
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Defendants are associated with the E379 hash, 808 Holdings alleges
(Id. at 4.)
Because all the
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that each was a member of the same collective swarm.
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Accordingly, Plaintiff asserts that they "acted collectively, and
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in concert, in effectuating the illegal and unauthorized sharing of
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Plaintiff's copyrighted work."
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the Doe Defendants acted in unison:
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(Id.)
(Id. at 35.)
808 Holdings contends that
Defendants engaged in their copyright infringement
scheme together. They all used the same torrent-sharing
technology to coordinate their collective copyright
theft; they were all members of the same exact swarm on
the same exact date; they all used the same exact tracker
file; they all shared and republished the same exact
motion picture; and they all shared the same exact hash
file of the Motion Picture with each other and other
individuals on the same exact date, December 29, 2011.
(Id. at 4.)
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III.
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LEGAL STANDARDS
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Generally, discovery is not permitted without a court order
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before the parties have conferred pursuant to Federal Rule of Civil
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Procedure 26(f).
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courts have made exceptions, permitting limited discovery to ensue
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after filing of the complaint to permit the plaintiff to learn the
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identifying facts necessary to permit service on the defendant."
Fed. R. Civ. P. 26(d)(1).
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Yet, "in rare cases,
12cv00186 MMA(RBB)
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Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal.
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1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
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1980)).
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good cause for the early discovery.
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Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002).
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Courts grant these requests when the moving party shows
Semitool, Inc. v. Tokyo Elec.
The Ninth Circuit has held that when the defendants'
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identities are unknown at the time the complaint is filed, courts
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may grant plaintiffs leave to take early discovery to determine the
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defendants' identities "unless it is clear that discovery would not
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uncover the identities, or that the complaint would be dismissed on
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other grounds.”
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decision to grant discovery to determine jurisdictional facts is a
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matter of discretion."
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Gellespie, 629 F.2d at 642.
"A district court's
Columbia Ins. Co., 185 F.R.D. at 578.
District courts apply a three-factor test when considering
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motions for early discovery to identify certain defendants.
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578-80.
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with sufficient specificity such that the Court can determine that
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defendant is a real person or entity who could be sued in federal
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court."
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previous steps taken to locate the elusive defendant" to ensure
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that the plaintiff has made a good faith effort to identify and
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serve process on the defendant.
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should establish that its suit against the defendant could
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withstand a motion to dismiss.
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extraordinary application of the discovery process and to ensure
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that the plaintiff has standing," plaintiff must show that some act
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giving rise to liability actually occurred and that the discovery
Id. at
First, the plaintiff should "identify the missing party
Id. at 578.
Second, the movant must describe "all
Id. at 579.
Id.
Third, plaintiff
“[T]o prevent abuse of this
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12cv00186 MMA(RBB)
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is aimed at identifying the person who allegedly committed the act.
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Id. at 579-80.
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IV.
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DISCUSSION
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Plaintiff seeks an order permitting it to subpoena twenty-
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three ISPs for documents and information sufficient to identify the
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subscribers of the assigned IP addresses listed in Exhibit A to its
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Motion:
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(3) CABLE ONE, Inc., (4) CenturyTel Internet Holdings, (5) Charter
(1) AT&T d/b/a SBC Internet Services, (2) BellSouth.net,
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Communications, (6) Comcast Cable, (7) Cox Communications, (8)
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Cyber Wurx, LLC., (9) Earthlink, (10) Embarq Corporation, (11) Fuse
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Internet Access, (12) HickoryTech Corporation, (13) Insight
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Communications Company, (14) The Iserv Company LLC, (15) Level 3
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Communications, (16) Optimum Online, (17) Qwest Communications,
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(18) RCN Corporation, (19) SureWest Broadband, (20) Time Warner
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d/b/a Road Runner, (21) Verizon Internet Services, (22)
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WideOpenWest, and (23) Windstream Communications.
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Early Disc. Attach. #1 Mem. P. & A. 2, ECF No. 3.)
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eighty-three corresponding IP addresses that Plaintiff lists in
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Exhibit A, only twenty-six are located in California; five of those
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Defendants are located within San Diego or Imperial Counties, and
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twenty-one are located outside the district.
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A, at 2-4.)
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three do not specify a particular location.
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A.
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(Mot. Leave Take
Out of the
(Id. Attach. #2 Ex.
Fifty-four are located outside of California, and
(Id.)
Identification of Missing Parties with Sufficient Specificity
First, 808 Holdings must identify the Doe Defendants with
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enough specificity to enable the Court to determine that the
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defendant is a real person or entity who would be subject to the
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12cv00186 MMA(RBB)
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jurisdiction of this Court.
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In its Motion for Leave to Take Early Discovery, 808 Holdings
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asserts it has “sufficiently identified individuals who are real
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persons” that Plaintiff can sue in this federal district court.
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(Mot. Leave Take Early Disc. Attach. #1 Mem. P. & A. 3, ECF No. 3.)
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It has “observed and documented the infringement of its registered
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work by the individuals identified as DOES . . . .”
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808 Holdings contends that the discovery sought is necessary to
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ascertain the identities of the Defendants.
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Columbia Ins. Co., 185 F.R.D. at 578.
(Id.)
Also,
(Id.)
Some district courts in the Ninth Circuit have determined that
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a plaintiff identifies Doe defendants with sufficient specificity
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by providing the unique IP addresses assigned to an individual
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defendant on the day of the allegedly infringing conduct, and by
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using “geolocation technology” to trace the IP addresses to a
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physical point of origin.
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1-39, No. C-11-3311 MEJ, 2011 U.S. Dist. LEXIS 116552, at *5-6
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(N.D. Cal. Oct. 7, 2011); Pink Lotus Entm’t v. Does 1-46, No. C-11-
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02263 HRL, 2011 U.S. Dist. LEXIS 65614, at *6-7 (N.D. Cal. June 21,
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2011).
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assigned to the defendants on the day of the purported infringement
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is sufficient to satisfy the first factor.
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1-149, No. C-11-02331 LB, 2011 U.S. Dist. LEXIS 85363, at *4-5
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(N.D. Cal. Aug. 15, 2011) (opinion by Judge Beeler); First Time
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Videos LLC v. Does 1-37, No. C-11-01675 LB, 2011 U.S. Dist. LEXIS
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42376, at *5 (N.D. Cal. April 14, 2011) (opinion by Judge Beeler).
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See Openmind Solutions, Inc. v. Does
Others have found that merely identifying the IP addresses
See MCGIP, LLC v. Does
This Court finds the former standard persuasive.
In any
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event, here, 808 Holdings has submitted a chart listing the unique
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IP address corresponding to each Defendant on December 29, 2011, as
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12cv00186 MMA(RBB)
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well as the city and state in which each IP address is located.
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(See Mot. Leave Take Early Disc. Attach. #2 Ex. A, at 2-4, ECF No.
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3.)
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sufficient specificity.
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LEXIS 116552, at *6 (concluding that plaintiff satisfied the first
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factor by identifying the defendants’ IP addresses and by tracing
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the IP addresses to a point of origin within the State of
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California); Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at *6
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(same).
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B.
Consequently, Plaintiff has identified the Doe Defendants with
See Openmind Solutions, 2011 U.S. Dist.
Previous Attempts to Locate Defendants
Next, 808 Holdings must describe all prior steps it has taken
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to identify the Doe Defendants in a good faith effort to locate and
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serve them.
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generally maintains that there are no other practical measures
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available to determine the identities of the Doe Defendants.
(Mot.
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Leave Take Early Disc. Attach #1 Mem. P. & A. 4, ECF No. 3.)
"Due
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to the nature of on-line transactions, Plaintiff has no way of
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investigating the identities of the potential Defendants except via
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third-party subpoena to the ISP."
20
See Columbia Ins. Co., 185 F.R.D. at 579.
Plaintiff
(Id.)
In its Motion, 808 Holdings does not describe the efforts it
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made to learn the IP addresses.
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addresses from which each Doe Defendant connected to the Internet
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and recorded the date and time each Defendant accessed Plaintiff’s
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motion picture.
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simple search on a publically available database” to determine
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which ISP controls the particular IP addresses.
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description is vague and is not supported by any declaration.
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Openmind Solutions, 2011 U.S. Dist. LEXIS 116552, at *7-10.
(See id. at 5.)
Plaintiff identified the IP
Plaintiff apparently conducted “a
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(See id.)
This
See
12cv00186 MMA(RBB)
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Nonetheless, 808 Holdings appears to have obtained and investigated
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the data pertaining to the December 29, 2011 alleged infringements,
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in a good faith effort to locate each Doe Defendant.
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Sin, Inc. v. Does 1-5698, No. C 11-04397 LB, 2011 U.S. Dist. LEXIS
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128033, at *5 (N.D. Cal. Nov. 4, 2011); Openmind Solutions, 2011
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U.S. Dist. LEXIS 85363, at *5; MCGIP, 2011 U.S. Dist. LEXIS 85363,
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at *5; Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at *7.
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C.
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See Digital
Ability to Withstand a Motion to Dismiss
Finally, to be entitled to early discovery, 808 Holdings must
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demonstrate that its Complaint can withstand a motion to dismiss.
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See Columbia Ins. Co., 185 F.R.D. at 579.
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In its Motion for Leave to Take Early Discovery, the Plaintiff
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declares that it has stated a prima facie claim for copyright
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infringement that can withstand a motion to dismiss.
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Take Early Disc. Attach. #1 Mem. P. & A. 4, ECF No. 3.)
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to 808 Holdings, it has adequately alleged that Defendants engaged
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in the unauthorized reproduction and distribution of its motion
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picture, and that Plaintiff owns the registered copyrights for the
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motion picture.
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without a citation to supporting authority showing any “duty” to
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copyright owners, 808 Holdings contends it has sufficiently pleaded
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a negligence cause of action based on the Defendants’ failure to
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secure their Internet access, which enabled the copyright
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infringements.
(Mot. Leave
According
(Id. (citing 17 U.S.C. §§ 106(1)(3)).)
Also,
(Id.)
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1.
Lack of personal jurisdiction
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Exhibit A to Plaintiff’s Motion indicates that most of the
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potential Defendants are located outside of the state.
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eighty-three Doe Defendants listed, only twenty-six of the host IP
10
Of the
12cv00186 MMA(RBB)
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addresses are in California.
2
ECF No. 3.)
Fifty-four of the IP addresses are outside of
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California.
(Id.)
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unknown or unspecified.
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serious question as to whether the claims against the fifty-four
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out-of-state Doe Defendants, as well as the three Defendants whose
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locations are unknown, can survive a motion to dismiss for lack of
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personal jurisdiction.
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8AB508AB0F9EF8B4CDB14C6248F3 C96C65BEB882 on December 4, 2011, No.
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CV 12-00204 DDP(SSx), 2012 U.S. Dist. LEXIS 41078, at *5 (C.D. Cal.
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Mar. 23, 2012).
12
(See id. Attach. #2 Ex. A, at 2-4,
The location of three of the IP addresses is
(Id. at 2, 4.)
At a minimum, there is a
See Celestial, Inc. v. Swarm Sharing Hash
The Plaintiff bears the burden of establishing jurisdictional
13
facts.
14
Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th
15
Cir. 1977)).
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discuss whether this Court has personal jurisdiction over the Doe
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Defendants.
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Defendants are subject to personal jurisdiction in this district
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because they took the "affirmative action of both downloading and
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uploading" Plaintiff’s motion picture, which “contained Plaintiff's
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business address in this jurisdiction, . . . .”
22
1.)
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known . . . that the copyright belonged to an entity residing in
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this jurisdiction and thus [they] expressly targeted their
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infringing actions and caused damages" in California.
26
See Columbia Ins. Co., 185 F.R.D. at 578 (citing Wells
Yet, remarkably, in its Motion, 808 Holdings does not
In its Complaint, however, Plaintiff asserts that the
(Compl. 2, ECF No.
Thus, Plaintiff maintains that "Defendants knew or should have
(Id.)
Personal jurisdiction over a nonresident defendant is
27
determined by a two-part test.
First, the exercise of jurisdiction
28
must comply with the state’s long-arm statute.
11
Liberty Media
12cv00186 MMA(RBB)
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Holdings v. Does 1-62, No. 11-CV-575-MMA (NLS), 2012 U.S. Dist.
2
LEXIS 24232, at *6 (S.D. Cal. Feb. 24, 2012).
3
of jurisdiction must satisfy the requirements of federal due
4
process.
5
statute extends jurisdiction to the limits of due process.
6
Code. Civ. P. § 410.10 (West 2004); Dow Chem. Co. v. Calderon, 422
7
F.3d 827, 831 (9th Cir. 2005).
8
jurisdiction over a nonresident defendant, that defendant must have
9
at least ‘minimum contacts’ with the relevant forum such that the
10
exercise of jurisdiction ‘does not offend traditional notions of
11
fair play and substantial justice.’”
12
Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) (quoting Int’l Shoe
13
Co. v. Washington, 326 U.S. 310, 316 (1945)).
Id. at *6-7 (citation omitted).
Second, the exercise
California's long-arm
Cal.
“For a court to exercise personal
Scwarzenegger v. Fred Martin
14
While some courts deciding requests for early discovery have
15
considered whether the IP addresses are located in California, at
16
least one other court has determined that merely identifying the
17
host IP addresses — regardless of location — is sufficient.
18
Compare Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at *6-7
19
(noting that the IP addresses were traced to locations in
20
California), with First Time Videos LLC, 2011 U.S. Dist. LEXIS
21
42376, at *5 (opinion by Judge Beeler) (failing to discuss location
22
of IP addresses).
23
addresses in three subsequent cases.
24
Dist. LEXIS 128033, at *4-5 (failing to address the locations of
25
the IP addresses); MCGIP, 2011 U.S. Dist. LEXIS 85363, at *4-5; VPR
26
Internationale v. Does 1-17, No. C-11-01494 LB, 2011 U.S. Dist.
27
LEXIS 45118, at *5 (N.D. Cal. Apr. 15, 2011).
28
found that without identifying the Doe Defendants, it would be
Judge Beeler did not consider the location fo IP
12
See Digital Sin, 2011 U.S.
Other courts have
12cv00186 MMA(RBB)
1
premature to decide whether the court lacks personal jurisdiction
2
when the defendants and their connections to California are
3
unknown.
4
at *7-8 (citing IO Group, Inc. v. Does 1-10, No. C 10-03851 SI,
5
2010 U.S. Dist. LEXIS 133717 (N.D. Cal. Dec. 7, 2010); Call of the
6
Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 347 (D.D.C.
7
2011)).
See Liberty Media Holdings, 2012 U.S. Dist. LEXIS 24232,
8
This Court must balance the need for discovery against the
9
interests of justice, which includes consideration of the prejudice
10
to the ISP and to the Doe Defendants.
11
276.
12
confidential information about Defendants not subject to the
13
Court’s jurisdiction.
14
the Doe Defendants is proper because the motion picture displayed
15
Plaintiff’s California business address.
16
This is insufficient to support a determination that “‘Defendants
17
expressly aimed their tortious acts against’ a California company,
18
as required for specific jurisdiction.”
19
LEXIS 41078, at *6 (citation omitted).
20
individual in a distant jurisdiction would envision that the acts
21
alleged would subject him to the jurisdiction of this Court.
22
Similarly, any allegation that personal jurisdiction exists because
23
of the swarming activity is inadequate.
24
See Semitool, 208 F.R.D. at
The judicial process should not be manipulated to obtain
The Plaintiff asserts that jurisdiction over
(Compl. 2-3, ECF No. 1.)
Celestial, 2012 U.S. Dist.
It is unlikely that an
Id. at *6-7 & n.2.
At a minimum, Plaintiff has not alleged sufficient facts to
25
show that it can withstand a motion to dismiss for lack of personal
26
jurisdiction as to the fifty-four Doe Defendants with IP addresses
27
outside of California and the three Doe Defendants whose locations
28
are not identified.
See Celestial, 2012 U.S. Dist. LEXIS 41078, at
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12cv00186 MMA(RBB)
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*5-6 (denying request for early discovery because the complaint
2
could not withstand a motion to dismiss for lack of personal
3
jurisdiction even though all of the IP addresses were located in
4
California).
5
2.
6
In the same vein, 808 Holdings has not shown that its
Improper venue
7
Complaint can survive a motion to dismiss for improper venue as to
8
the Doe Defendants with IP addresses outside the State of
9
California and outside this judicial district.
As discussed,
10
fifty-four of the IP addresses are located out-of-state, and the
11
locations for three of the addresses are unknown.
12
Take Early Disc. Attach. #2 Ex. A, at 2-4, ECF No. 3.)
13
of the twenty-six California IP addresses are within the Southern
14
District of California — one IP address is in Fallbrook,
15
California; one is in Coronado, California; and three are in San
16
Diego, California.
17
(See Mot. Leave
Only five
(Id.)
Plaintiff alleges that venue in this district is proper as to
18
all Defendants under 28 U.S.C. §§ 1391(b)(2), 1400(a).
19
3, ECF No. 1.)
20
is not determined be the general provision governing suits in the
21
federal district courts, rather by the venue provision of the
22
Copyright Act.”
23
(N.D. Cal. 2007).
24
instituted in the district in which the defendant or his agent
25
resides or may be found.”
26
individual “resides” for venue purposes in the district of his
27
domicile.
28
110.39[2], at 110-76 (3d ed. 2011).
(See Compl.
“The venue of suits for infringement of copyright
Goldberg v. Cameron, 482 F. Supp. 2d 1136, 1143
Civil actions for copyright infringement “may be
28 U.S.C.A. § 1400(a) (West 2006).
An
17 James Wm. Moore, et al., Moore’s Federal Practice, §
14
A defendant is “found” for
12cv00186 MMA(RBB)
1
venue purposes where he is subject to personal jurisdiction.
2
(footnote omitted); see Brayton Purcell LLP v. Recordon & Recordon,
3
606 F.3d 1124, 1126 (9th Cir. 2010) (“This circuit interprets [28
4
U.S.C. § 1400(a)] to allow venue in any judicial district where, if
5
treated as a separate state, the defendant would be subject to
6
personal jurisdiction.”).
7
Plaintiff fails to address venue in its Motion.
Id.
In the
8
Complaint, however, 808 Holdings asserts venue is proper because
9
although the true identities of the Defendants are unknown, “on
10
information and belief, each Defendant may be found in this
11
District and/or a substantial part of the infringing acts
12
complained of occurred in this District.”
13
This allegation may run afoul of Rule 11 of the Federal Rules of
14
Civil Procedure, given that only five of the eighty-three
15
Defendants have IP addresses in the Southern District of
16
California.
17
(Compl. 3, ECF No. 1.)
Plaintiff has not demonstrated that its Complaint can
18
withstand a motion to dismiss for lack of personal jurisdiction as
19
to the fifty-four Doe Defendants located outside of California and
20
the three Defendants in unknown locales.
21
venue in this judicial district would be improper for these
22
Defendants.
23
twenty-one California Defendants located outside of this district
24
are subject to suit in the Southern District of California.
25
it is unclear whether 808 Holdings’s Complaint can survive a motion
26
to dismiss by these twenty-one Doe Defendants.
27
Plaintiff has not shown that it can withstand a motion to dismiss
28
for improper venue pursuant to 28 U.S.C. § 1406(a) for these
It also appears that
Similarly, the Plaintiff has not shown that the
15
Thus,
Consequently,
12cv00186 MMA(RBB)
1
seventy-five Doe Defendants, especially when there is no alternate
2
district to which a transfer would be appropriate.
3
§ 1406 (West 2006).
See 28 U.S.C.A.
4
3.
Misjoinder
5
In addition to personal jurisdiction and venue, 808 Holdings
6
has failed to show that its claims can withstand a motion to
7
dismiss for improper joinder.
8
Celestial, 2012 U.S. Dist. LEXIS 41078, at *7 n.3.
9
Ninth Circuit has not ruled on whether permissive joinder is proper
10
in cases where Doe defendants collectively download and upload the
11
same file using BitTorrent technology, several recent district
12
court cases in the circuit have found joinder improper.
13
Celestial, 2012 U.S. Dist. LEXIS 41078, at *7 n.3 (citing recent
14
cases finding misjoinder); see also Liberty Media Holdings v. Does
15
1-62, 2012 U.S. Dist. LEXIS 24232, at *16-17.
16
pleading and motion, 808 Holdings has not established that the
17
Complaint can withstand a motion to dismiss for the misjoinder of
18
out-of-state and out-of-district Doe Defendants.
Fed. R. Civ. P. 20(a); see
19
See
In its conclusory
V.
20
Although the
CONCLUSION
21
22
Plaintiff’s Motion for Leave to Take Early Discovery [ECF No.
3] is GRANTED in part and DENIED in part.
23
The Plaintiff has made a sufficient showing to satisfy the
24
three-factor test for only five of the eighty-three Doe Defendants.
25
For these five Defendants, Plaintiff’s Motion is GRANTED.
26
808 Holdings may serve subpoenas on the ISPs for the five
27
Defendants with addresses in this judicial district, seeking
28
identifying information relating to the following “Host IP
16
12cv00186 MMA(RBB)
1
addresses”:
(1) 76.176.17.137 (Fallbrook, California), (2)
2
66.75.47.109 (Coronado, California), (3) 68.107.100.235 (San Diego,
3
California), (4) 76.192.216.196 (San Diego, California), and (5)
4
75.25.175.128 (San Diego, California).
5
Disc. Attach. #2 Ex. A, at 2-3, ECF No. 3.)
6
provide a minimum of forty-five days’ notice before any production
7
and shall be limited to one category of documents identifying the
8
particular subscriber or subscribers on the “Hit Date(UTC)” listed
9
on Exhibit A to Plaintiff’s Motion for Leave to Take Early
(Mot. Leave Take Early
Each subpoena must
10
Discovery.
11
the name and addresses of each subscriber.
12
party may seek a protective order if it determines there is a
13
legitimate basis for doing so.
14
The requested information should be limited to
(Id.)
Any subpoenaed third
The ISPs shall have fourteen calendar days after service of
15
the subpoenas to notify the subscribers that their identity has
16
been subpoenaed by Plaintiff.
17
been subpoenaed shall then have thirty calendar days from the date
18
of the notice to seek a protective order or file any other
19
responsive pleading.
20
each individual identified by the ISPs with no more than three
21
interrogatories to determine whether the Internet subscriber is the
22
proper defendant.
If appropriate, 808 Holdings may then serve
No depositions are authorized at this time.
With respect to the remaining seventy-eight Doe Defendants,
23
24
Each subscriber whose identity has
Plaintiff’s Motion is DENIED.
IT IS SO ORDERED.
25
26
Dated:
May 4, 2012
RUBEN B. BROOKS
United States Magistrate Judge
27
28
cc:
Judge Anello
All Parties of Record
K:\COMMON\BROOKS\CASES\808HOLDINGS186
(1)\OrderReEarlyDisc (city, state listed)
17
(1).wpd
12cv00186 MMA(RBB)
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