808 Holdings, LLC v. Collective Sharing Hash E37917C8EEB4585E6421358FF32F29CD63C23C91 et al

Filing 5

ORDER Denying 3 Motion for Leave to Take Early Discovery. Signed by Magistrate Judge Ruben B. Brooks on 5/4/2012. (leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Civil No. 12cv00191 MMA(RBB)

808 HOLDINGS, LLC, a California )
limited liability company,
)
)
Plaintiff,
)
)
v.
)
)
COLLECTIVE SHARING HASH
)
E37917C8EEB4585E6421358FF32F29C )
D63C23C91 on DECEMBER 28, 2011, )
and DOES 1-39, inclusive,
)
)
Defendants.
)
)

ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO TAKE EARLY
DISCOVERY [ECF NO. 3]

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On January 25, 2012, Plaintiff filed a Motion for Leave to

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Take Early Discovery with a Memorandum of Points and Authorities

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and an exhibit [ECF No. 3] before United States Magistrate Judge

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Jan M. Adler.

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Court pursuant to the “Low-Number” Rule [ECF No. 4].

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Defendant has been named or served, no opposition or reply briefs

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have been filed.

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On April 25, 2012, the case was transferred to this
Because no

The Plaintiff failed to comply with local rules and obtain a

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hearing date before filing its Motion for Leave to Take Early

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Discovery.

See S.D. Cal. Civ. R. 7.1(d).

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Although 808 Holdings

12cv00191 MMA(RBB)

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did not obtain a hearing date before Judge Adler, the Court finds

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the Plaintiff's Motion suitable for resolution on the papers.

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S.D. Cal. Civ. R. 7.1(d)(1).

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Motion is DENIED.

See

For the reasons discussed below, the

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I.

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PROCEDURAL HISTORY

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On January 24, 2012, Plaintiff 808 Holdings, LLC ("808

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Holdings") filed a Complaint against the Collective Sharing Hash

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E37917C8EEB4585E6421358FF32F29CD63C23C91 on December 28, 2011, and

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DOES one through thirty-nine (“Defendants”) [ECF No. 1].

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does business under the names "Cody Media" and "SeanCody.com," and

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it purports to be the registered owner of, and hold the exclusive

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rights to, the copyright of the motion picture, "Brandon & Pierce

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Unwrapped."

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a claim for copyright infringement, stating that Defendants

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reproduced and distributed Plaintiff's copyrighted material through

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the Internet without authorization of the Plaintiff.

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23.)

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infringement, alleging that Defendants illegally obtained the

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copyrighted motion picture and assisted others in doing the same.

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(Id. at 23-25.)

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negligent in failing to adequately secure their Internet access to

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prevent its unlawful use by others.

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(Compl. 1, 3, ECF No. 1.)

Plaintiff

First, 808 Holdings alleges

(Id. at 22-

Second, 808 Holdings pleads contributory copyright

Third, Plaintiff argues that the Defendants were

(Id. at 25-26.)

One day after filing the Complaint, on January 25, 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").

(Mot. Leave Take Early Disc.

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2

12cv00191 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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1.)

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Protocol (“IP”) addresses associated with subscribers it hopes to

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identify as defendants.

Specifically, 808 Holdings seeks an order

(Id.)

The Plaintiff also seeks leave to serve

(Id. Attach. #1 Mem. P. & A.

Plaintiff attached to its Motion a list of the Internet

(Id. Attach. #2 Ex. 1, at 2-3.)

The list

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indicates the state attributable to each IP address, but it does

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not provide the city.

(See id.)

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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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thirty-nine 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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then distribute that infringing copy to other people in "an

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interconnected collective," which then builds on its prior

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infringements.

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of "BitTorrent users" or "peers" whose computers are connected for

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the purpose of sharing a file, otherwise known as a "swarm."

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at 3.)

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with a particular "hash," which has a specific identifier for the

(Compl. 2, ECF No.

In general, the Plaintiff asserts that each time a Defendant

(Id.)

The Defendants are purportedly a collection

(Id.

Plaintiff alleges that each BitTorrent swarm is associated

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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.
3

12cv00191 MMA(RBB)

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file.

(Id.)

The sharing hash associated with the motion picture

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at issue is E37917C8EEB4585E6421358FF32F29CD63C23C91 ("E379 Hash").

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(Id. at 4.)

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A.

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."

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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. at 18.)

(Id.)

"This is done by joining into the

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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(Id.)

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on a BitTorrent client application; the user then extracts a list

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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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When a user downloads a media file, he or she opens the file

(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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to the seeder to download the media file, which creates a digital

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copy of the file; the process repeats as new members join the

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swarm, increasing the number of users in the swarm.

(Id.)

New members of the swarm then connect

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(Id.)

Each

12cv00191 MMA(RBB)

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member both acquires and redistributes the media file by

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simultaneously uploading and downloading portions of the same

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digital copy with the other members.

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Plaintiff contends that even if the original seeder leaves the

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swarm, the media file can continue to be downloaded by old and new

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members.

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C.

(Id. at 18-19.)

Therefore,

(Id. at 19.)

The December 28, 2011 Sharing Hash

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Plaintiff claims that on December 28, 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

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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. at 4.)

(Id.)

Because all the

(Id. at 20.)

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 28, 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

Fed. R. Civ. P. 26(d)(1).

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Yet, "in rare cases,

12cv00191 MMA(RBB)

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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."

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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'
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

Id. at

First, the plaintiff should "identify the missing party

Id. at 578.

Second, the movant must describe "all

Id. at 579.

Id.

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Third, plaintiff

“[T]o prevent abuse of this

12cv00191 MMA(RBB)

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giving rise to liability actually occurred and that the discovery

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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:

(1) AT&T d/b/a SBC Internet Services, (2) BellSouth.net,

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(3) CABLE ONE, Inc., (4) CenturyTel Internet Holdings, (5) Charter

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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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thirty-nine corresponding IP addresses that Plaintiff lists in

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Exhibit 1, only eight are located in the State of California; the

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remaining thirty-one are located outside of California.

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Attach. #1 Ex. 1, at 2-3.)

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corresponding to each IP address.

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A.

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(Mot. Leave Take
Out of the

(Id.

808 Holdings does not identify the city
(See 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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12cv00191 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 infringement of its registered work

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by the individuals identified as DOES . . . .”

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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, 808

(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 28, 2011, as

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12cv00191 MMA(RBB)

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well as the state in which each IP address is located.

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Leave Take Early Disc. Attach. #2 Ex. 1, at 2-3, ECF No. 3.)

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Although the Plaintiff has not also identified the city in which

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each IP address is located, it has identified the Doe Defendants

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with sufficient specificity to satisfy this first factor.

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Openmind Solutions, 2011 U.S. Dist. LEXIS 116552, at *6 (concluding

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that plaintiff satisfied the first factor by identifying the

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defendants’ IP addresses and by tracing the IP addresses to a point

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of origin); Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at *6

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B.

See

(same).

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(See Mot.

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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."

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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.

(See id. at 5.)

Plaintiff identified the IP

Plaintiff apparently conducted “a

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(See id.)

This
See

12cv00191 MMA(RBB)

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Openmind Solutions, 2011 U.S. Dist. LEXIS 116552, at *7-10.

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Moreover, Plaintiff does not provide the city in which each IP

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address is located or explain why it was unable to do so.

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Nonetheless, 808 Holdings appears to have obtained and investigated

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the data pertaining to the December 28, 2011 alleged infringements,

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in an effort to locate each Doe Defendant.

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v. Does 1-5698, No. C 11-04397 LB, 2011 U.S. Dist. LEXIS 128033, at

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*5 (N.D. Cal. Nov. 4, 2011); Openmind Solutions, 2011 U.S. Dist.

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LEXIS 85363, at *5; MCGIP, 2011 U.S. Dist. LEXIS 85363, at *5; Pink

See Digital Sin, Inc.

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Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at *7.

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C.

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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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12cv00191 MMA(RBB)

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1.

Lack of personal jurisdiction

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Exhibit 1 to Plaintiff’s Motion indicates that most of the

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potential Defendants are located outside of the state.

Of the

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thirty-nine Doe Defendants listed, only eight of the host IP

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addresses are in California.

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Thirty-one of the IP addresses are outside of California.

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At a minimum, there is a serious question as to whether the claims

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against the thirty-one out-of-state Doe Defendants can survive a

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motion to dismiss for lack of personal jurisdiction.

(See id. Attach. #2 Ex. 1, at 2-3.)
(Id.)

See

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Celestial, Inc. v. Swarm Sharing Hash 8AB508AB0F9EF8B4CDB14C6248F3

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C96C65BEB882 on December 4, 2011, No. CV 12-00204 DDP(SSx), 2012

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U.S. Dist. LEXIS 41078, at *5 (C.D. Cal. Mar. 23, 2012).
The Plaintiff bears the burden of establishing jurisdictional

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14

facts.

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Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th

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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, . . . .”

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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.

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28

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
determined by a two-part test.

First, the exercise of jurisdiction

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12cv00191 MMA(RBB)

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must comply with the state’s long-arm statute.

2

Holdings v. Does 1-62, No. 11-CV-575-MMA (NLS), 2012 U.S. Dist.

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LEXIS 24232, at *6 (S.D. Cal. Feb. 24, 2012).

4

of jurisdiction must satisfy the requirements of federal due

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process.

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statute extends jurisdiction to the limits of due process.

7

Code. Civ. P. § 410.10 (West 2004); Dow Chem. Co. v. Calderon, 422

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F.3d 827, 831 (9th Cir. 2005).

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jurisdiction over a nonresident defendant, that defendant must have

Id. at *6-7 (citation omitted).

Liberty Media

Second, the exercise

California's long-arm
Cal.

“For a court to exercise personal

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at least ‘minimum contacts’ with the relevant forum such that the

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exercise of jurisdiction ‘does not offend traditional notions of

12

fair play and substantial justice.’”

13

Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) (quoting Int’l Shoe

14

Co. v. Washington, 326 U.S. 310, 316 (1945)).

Scwarzenegger v. Fred Martin

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While some courts deciding requests for early discovery have

16

considered whether the IP addresses are located in California, at

17

least one other court has determined that merely identifying the

18

host IP addresses — regardless of location — is sufficient.

19

Compare Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at *6-7

20

(noting that the IP addresses were traced to locations in

21

California), with First Time Videos LLC, 2011 U.S. Dist. LEXIS

22

42376, at *5 (opinion by Judge Beeler) (failing to discuss

23

locations of IP addresses).

24

location of IP addresses in three subsequent cases.

25

Sin, 2011 U.S. Dist. LEXIS 128033, at *4-5; MCGIP, 2011 U.S. Dist.

26

LEXIS 85363, at *4-5; VPR Internationale v. Does 1-17, No.

27

C-11-01494 LB, 2011 U.S. Dist. LEXIS 45118, at *5 (N.D. Cal. Apr.

28

15, 2011).

Judge Beeler did not consider the
See Digital

Other courts have found that without identifying the

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12cv00191 MMA(RBB)

1

Doe Defendants, it would be premature to decide whether the court

2

lacks personal jurisdiction when the defendants and their

3

connections to California are unknown.

4

2012 U.S. Dist. LEXIS 24232, at *7-8 (citing IO Group, Inc. v. Does

5

1-10, No. C 10-03851 SI, 2010 U.S. Dist. LEXIS 133717 (N.D. Cal.

6

Dec. 7, 2010); Call of the Wild Movie, LLC v. Does 1-1,062, 770 F.

7

Supp. 2d 332, 347 (D.D.C. 2011)).

See Liberty Media Holdings,

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

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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 thirty-one Doe Defendants with IP addresses

27

outside of California.

28

at *5-6 (denying request for early discovery because the complaint

See Celestial, 2012 U.S. Dist. LEXIS 41078,

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12cv00191 MMA(RBB)

1

could not withstand a motion to dismiss for lack of personal

2

jurisdiction even though all of the IP addresses were located in

3

California).

4

2.

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In the same vein, 808 Holdings has not shown that its

Improper venue

6

Complaint can survive a motion to dismiss for improper venue as to

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the Doe Defendants with IP addresses outside the State of

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California and outside this judicial district.

9

thirty-one of the IP addresses are out-of-state, and only eight are

As discussed,

10

in California.

11

at 2-3, ECF No. 3.)

12

which each of the IP addresses is located.

13

unclear whether any of the eight in-state IP addresses are within

14

the Southern District of California.

15

(See Mot. Leave Take Early Disc. Attach. #2 Ex. 1,
The Plaintiff has not provided the city in
Therefore, it is

(Id.)

Plaintiff alleges that venue in this district is proper as to

16

all Defendants under 28 U.S.C. §§ 1391(b)(2), 1400(a).

17

3, ECF No. 1.)

18

is not determined be the general provision governing suits in the

19

federal district courts, rather by the venue provision of the

20

Copyright Act.”

21

(N.D. Cal. 2007).

22

instituted in the district in which the defendant or his agent

23

resides or may be found.”

24

individual “resides” for venue purposes in the district of his

25

domicile.

26

110.39[2], at 110-76 (3d ed. 2011).

27

venue purposes where he is subject to personal jurisdiction.

28

(footnote omitted); see Brayton Purcell LLP v. Recordon & Recordon,

(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, §

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A defendant is “found” for
Id.

12cv00191 MMA(RBB)

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606 F.3d 1124, 1126 (9th Cir. 2010) (“This circuit interprets [28

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U.S.C. § 1400(a)] to allow venue in any judicial district where, if

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treated as a separate state, the defendant would be subject to

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personal jurisdiction.”).

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Plaintiff fails to address venue in its Motion.

In the

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Complaint, however, 808 Holdings asserts venue is proper because

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although the true identities of the Defendants are unknown, “on

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information and belief, each Defendant may be found in this

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District and/or a substantial part of the infringing acts

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complained of occurred in this District.”

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This allegation may run afoul of Rule 11 of the Federal Rules of

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Civil Procedure, given that only eight of the thirty-nine

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Defendants have IP addresses in California, and Plaintiff has not

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indicated where in the state the eight IP addresses are located.

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Venue in this judicial district for these eight Defendants is not

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clearly established.

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(Compl. 3, ECF No. 1.)

Plaintiff has not demonstrated that its Complaint can

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withstand a motion to dismiss for lack of personal jurisdiction as

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to the thirty-one Doe Defendants located outside of California.

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also appears that venue in this judicial district would be improper

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for these Defendants.

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the eight California Defendants are subject to suit in the Southern

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District of California.

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Complaint can survive a motion to dismiss for improper venue by

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these eight Doe Defendants.

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that it can withstand a motion to dismiss for improper venue

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pursuant to 28 U.S.C. § 1406(a) for all thirty-nine Doe Defendants,

It

Similarly, the Plaintiff has not shown that

It is uncertain that 808 Holdings’s

Consequently, Plaintiff has not shown

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12cv00191 MMA(RBB)

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especially when there is no alternate district to which a transfer

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would be appropriate.

See 28 U.S.C.A. § 1406 (West 2006).

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3.

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In addition to personal jurisdiction and venue, 808 Holdings

Misjoinder

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has failed to show that its claims can withstand a motion to

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dismiss for improper joinder.

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Celestial, 2012 U.S. Dist. LEXIS 41078, at *7 n.3.

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Ninth Circuit has not ruled on whether permissive joinder is proper

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in cases where Doe defendants collectively download and upload the

Fed. R. Civ. P. 20(a); see
Although the

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same file using BitTorrent technology, several recent district

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court cases in the circuit have found joinder improper.

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Celestial, 2012 U.S. Dist. LEXIS 41078, at *7 n.3 (citing recent

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cases finding misjoinder); see also Liberty Media Holdings v. Does

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1-62, 2012 U.S. Dist. LEXIS 24232, at *16-17.

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pleading and motion, 808 Holdings has not established that the

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Complaint can withstand a motion to dismiss for the misjoinder of

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out-of-state and out-of-district Doe Defendants.

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In its conclusory

V.

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See

CONCLUSION

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For all of these reasons, Plaintiff's Motion for Leave to Take
Early Discovery [ECF No. 3] is DENIED.

See Columbia Ins. Co., 185

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12cv00191 MMA(RBB)

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F.R.D. at 578 (stating that a whether to grant discovery to

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determine jurisdictional facts is a matter of discretion).

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IT IS SO ORDERED.

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Dated:

May 4, 2012
RUBEN B. BROOKS
United States Magistrate Judge

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cc:

Judge Anello
All Parties of Record

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K:\COMMON\BROOKS\CASES\808HOLDINGS191

(3)\Order re Early Disc (only state listed)

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(3).wpd

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