Malibu Media, LLC v. John Does 1 through 19

Filing 7

ORDER granting in part and denying in part plaintiff's 6 Motion for Leave to Service Third Party Subpoenas Prior to a Rule 26(f) Conference. Signed by Magistrate Judge Bernard G. Skomal on 6/12/12. (kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MALIBU MEDIA, LLC,

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ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR LEAVE TO SERVE THIRD
PARTY SUBPOENAS PRIOR TO A RULE
26(f) CONFERENCE

v.
JOHN DOES 1 THROUGH 19,

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Defendants.

[DOC. NO. 4]

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12CV1049-LAB (BGS)

Plaintiff,

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Civil No.

The Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f)

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Conference (“Motion”) was filed on April 30, 2012. (Doc. No. 4.) The Motion was accompanied by a

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Memorandum of Points and Authorities, declarations and exhibits. (Id.) Because no Defendant has

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been named or served, no opposition or reply briefs have been filed.

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Pursuant to Civil Local Rule 7.1(d)(1), the Court finds the Motion suitable for decision without
oral argument. For the reasons discussed below, the Motion is GRANTED.

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I.

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Plaintiff, Malibu Media, LLC (“Plaintiff”) filed a Complaint against Does 1 through 19

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(“Defendants”) on April 30, 2012. (Doc. No. 1.) Plaintiff purports to be the registered owner of, or has

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applied to obtain the registration for 107 movies contained on a website. (Compl. at 2, 4; Doc. No. 1.)

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First, Plaintiff alleges copyright infringement, stating that Defendants reproduced and distributed

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Plaintiff’s copyrighted material through the internet without authorization. (Id. at 9.) Second, Plaintiff

PROCEDURAL HISTORY

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pleads contributory copyright infringement, alleging that by participating in a BitTorrent swarm, each

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Defendant induced, caused or materially contributed to the infringing conduct of each other Defendant.

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(Id. at 10-11.)

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On April 30, 2012, Plaintiff filed this Motion in order to learn the identities of the Doe

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Defendants from their respective Internet Service Providers (“ISPs”). (Pl.’s Mem. P.&A. at 2; Doc. No.

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4.) Specifically, Plaintiff seeks leave of court to serve Rule 45 subpoenas on the ISPs in order to discover

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the true name, address, telephone number, e-mail address, and Media Access Control (“MAC”) address

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of each Defendant to whom the ISP issued an IP address. (Id.) In support of the Motion, Plaintiff

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attached Tobias Fiesler’s (“Fiesler”) declaration. (Decl. Fiesler; Doc. No. 4-1.) Fiesler identified the

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Internet Protocol (“IP”) addresses that were used to reproduce, distribute, display or perform Plaintiff’s

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copyrighted works without authorization. (Id. at 2.) Attached to Fiesler’s declaration is an exhibit

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listing the IP addresses, the date the IP addresses were used to infringe Plaintiff’s copyrighted works,

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and location of the IP addresses when they were accessing the BitTorrent network. (Decl. Fiesler, Ex. B;

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Doc. 4-3.)

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II.

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The Complaint alleges that the 19 Doe Defendants collectively infringed its copyrighted work

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using BitTorrent file sharing protocols. (Compl. at 4; Doc. No. 1.) The Defendants are purportedly a

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collection of “BitTorrent peers” whose computers connect for the purpose of downloading and

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uploading a computer file in what is commonly called a “swarm.” (Id. at 6-7.) Plaintiff alleges that each

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of Defendants’ IP addresses participated in a swarm that distributed Plaintiff’s copyrighted file identified

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by the unique hash number 625659538761601BE56B75C3D1DF1053A7C8BB28 (“Unique Hash

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Number”). (Id.)

FACTUAL ALLEGATIONS

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III.

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Generally, discovery is not permitted without a court order before the parties have conferred

LEGAL STANDARDS

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pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). Yet, “in rare cases, courts

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have made exceptions, permitting limited discovery to ensue after filing of the complaint to permit the

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plaintiff to learn the identifying facts necessary to permit service on the defendant.” Columbia Ins. Co.

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v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642
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(9th Cir. 1980)). Courts grant these requests when the moving party shows good cause for the early

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discovery. Semitool, Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002).

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The Ninth Circuit has held that when the defendants’ identities are unknown at the time the

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complaint is filed, courts may grant plaintiffs leave to take early discovery to determine the defendants’

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identities “unless it is clear that discovery would not uncover the identities, or that the complaint would

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be dismissed on other grounds.” Gillespie, 629 F.2d at 642. A district court’s decision to grant

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discovery to determine jurisdictional facts is a matter of discretion. Columbia Ins. Co., 185 F.R.D. at

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578.

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District courts apply a three-factor test when considering motions for early discovery to identify

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certain defendants. Id. at 578-80. First, the plaintiff should “identify the missing party with sufficient

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specificity such that the Court can determine that defendant is a real person or entity who could be sued

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in federal court.” Id. at 578. Second, the movant must describe “all previous steps taken to locate the

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elusive defendant” to ensure that the plaintiff has made a good faith effort to identify and serve process

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on the defendant. Id. at 579. Third, plaintiff should establish that its suit against the defendant could

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withstand a motion to dismiss. Id. “[T]o prevent abuse of this extraordinary application of the discovery

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process and to ensure that the plaintiff has standing,” plaintiff must show that some act giving rise to

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liability actually occurred and that the discovery is aimed at identifying the person who actually

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committed the act. Id. at 579-80.

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IV.

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Plaintiff seeks an order permitting it to subpoena the Doe Defendants’ ISPs in order to learn

DISCUSSION

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Defendants’ true identities and serve them with the Complaint. Specifically, Plaintiff seeks to subpoena

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three ISPs—Cox Communications, Road Runner and Verizon Internet Services—to identify the

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subscribers of the assigned IP addresses listed in Exhibit B to Fiesler’s declaration. (Decl. Fiesler, Ex.

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B; Doc. No. 4-3.) All 19 of the IP addresses that Plaintiff lists in Exhibit B are allegedly located in

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California; 18 of the Doe Defendants are allegedly located within San Diego County. (Id.)

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A. Identification of Missing Parties with Sufficient Specificity

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First, Plaintiff must identify the Doe Defendants with enough specificity to enable the Court to
determine that the defendant is a real person or entity who would be subject to the jurisdiction of this
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Court. Columbia Ins. Co., 185 F.R.D. at 578. In its Motion, Plaintiff asserts it properly pleads a cause

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of action for copyright infringement against each Doe Defendant, that there is no other way to obtain

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Defendants’ true identities because only the ISP can correlate the IP address used by one of its

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subscribers to a real person, and without learning Defendants’ true identities, Plaintiff will not be able to

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serve them with process and proceed with this case. (Pl.’s Mem. P.&A. at 6; Doc. No. 4.)

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Some district courts in the Ninth Circuit have determined that a plaintiff identifies Doe

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defendants with sufficient specificity 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 using “geolocation technology” to trace

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the IP address to a physical point of origin. See Openmind Solutions, Inc. v. Does 1-39, No. C-11-33-11

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MEJ, 2011 U.S. Dist. LEXIS 116552, at *5-6 (N.D. Cal. Oct. 7, 2011); Pink Lotus Entm’t v. Does 1-46,

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No. C-11-02263 HRL, 2011 U.S. Dist. LEXIS 65614, at *6-7 (N.D. Cal. June 21, 2011). Others have

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found that merely identifying the IP addresses assigned to the defendants on the day of the purported

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infringement is sufficient to satisfy the first factor. See MCGIP, LLC v. Does 1-149, No. C-11-02331

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LB, 2011 U.S. Dist. LEXIS 85363, at *4-5 (N.D. Cal. Aug. 15, 2011) (opinion by Judge Beeler); First

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Time Videos LLC v. Does 1-37, No. C-11-01675 LB, 2011 U.S. Dist. LEXIS 42376, at *5 (N.D. Cal.

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April 14, 2011) (opinion by Judge Beeler).

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This Court, like other courts in this district, finds the former standard persuasive. See 808

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Holdings, LLC v. Collective of Dec. 29, 2011 Sharing Hash, No. 12-CV-0186 MMA, ECF No. 7, at *8

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(S.D. Cal. May 4, 2012) (opinion by Judge Brooks). In this case, Plaintiff filed a chart listing the unique

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IP address corresponding to each Defendant that copied a piece of Plaintiff’s copyrighted works

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identified by the Unique Hash Number, as well as the city and state where each IP address is located.

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(Decl. Fiesler, Ex. B; Doc. No. 4-3.) Consequently, Plaintiff has identified the Doe Defendants with

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sufficient specificity and satisfies the first factor of the test for permitting early discovery.

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B. Previous Attempts to Locate Defendants

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Next, Plaintiff must identify all previous steps taken to identify the Doe Defendants in a good

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faith effort to locate and serve them. See Columbia Ins. Co., 185 F.R.D. at 579. Plaintiff states that

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“there is no other way to obtain Defendants’ identities, except by serving a subpoena on Defendants’

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ISPs.” (Pl.’s Mem. P.&A. at 5; Doc. No. 4.) Plaintiff hired a forensic investigation service, IPP,
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Limited, to identify the IP addresses that were used by Defendants to reproduce, distribute, display or

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perform Plaintiff’s copyrighted works. (Decl. Fiesler at 2, Doc. No. 4-1.) According to Fiesler, “only

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the ISP to whom a particular IP address has been assigned for use by its subscriber can correlate the IP

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address to a real person, the subscriber of the internet service.” (Id.) Accordingly, Plaintiff appears to

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have investigated and obtained the data pertaining to the alleged infringements in a good faith effort to

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locate each Doe Defendant. See Digital Sin, Inc. v. Does 1-5698, No. C-11-04397 LB, 2011 U.S. Dist.

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LEXIS 128033, at *5 (N.D. Cal. Nov. 4, 2011); Openmind Solutions, 2011 U.S. Dist. LEXIS 116552, at

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*5; Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at *7; MCGIP, 2011 U.S. Dist. LEXIS 85363, at

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*5.

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C. Ability to Withstand a Motion to Dismiss
Lastly, to be entitled to early discovery, Plaintiff must demonstrate that its complaint can
withstand a motion to dismiss. See Columbia Ins. Co., 185 F.R.D. at 579.

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Stating a Claim Upon Which Relief Can Be Granted

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The pending Motion maintains that Plaintiff has exceeded its obligation to plead a prima facie

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case of copyright infringement. (Pl.’s Mem. P.&A. at 4-5; Doc. No. 4.) The Complaint alleges that

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Plaintiff is the owner of the copyrights for the works at issue, that by using the BitTorrent protocol and

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process described, each Defendant copied a piece of Plaintiff’s copyrighted works identified by the

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Unique Hash Number. (Compl. at 8-9, Doc. No. 1.)

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2.

Lack of Personal Jurisdiction

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The Plaintiff bears the burden of establishing jurisdictional facts. See Columbia Ins. Co., 185

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F.R.D. at 578. In its Motion, Plaintiff does not discuss whether this Court has personal jurisdiction over

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the Doe Defendants. In its Complaint, however, Plaintiff alleges that each of the Defendants’ acts of

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copyright infringement occurred using an IP address traced to a physical address located within

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California. (Compl. at 2; Doc. No. 1.) Accordingly, Plaintiff has alleged sufficient facts to show that it

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is likely it can withstand a motion to dismiss for lack of personal jurisdiction because all of the Doe

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Defendants have an IP address that was traced to a location in California. See 808 Holdings, No. 12-

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CV-0186 MMA; but see also Celestial Inc. v. Swarm Sharing Hash, No. CV 12-00204 DDP (Ssx), 2012

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U.S. Dist. LEXIS 41078, at *5-6 (C.D. Cal. Mar. 23, 2012) (denying request for early discovery because
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the complaint could not withstand a motion to dismiss for lack of personal jurisdiction even though all of

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the IP addresses were located in California).

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Improper Venue

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In the same vein, Plaintiff has not shown that its Complaint can survive a motion to dismiss for

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improper venue as to the Doe Defendant with an IP address outside this judicial district. (See Pl.’s

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Mem. P.&A, Ex. B; Doc. No. 4-3.) Doe 19's IP address is located in Palm Desert, California—a city

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within the jurisdiction of the Central District of California.

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Plaintiff alleges that venue in this district is proper as to all Defendants under 28 U.S.C.
§§ 1391(b) and(c), 1400(a). (Compl. at 3; Doc. No. 1.) “The venue of suits for infringement of copyright

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is not determined be the general provision governing suits in the federal district courts, rather by the

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venue provision of the Copyright Act.” Goldberg v. Cameron, 482 F. Supp. 2d 1136, 1143 (N.D. Cal.

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2007). Civil actions for copyright infringement “may be instituted in the district in which the defendant

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or his agent resides or may be found.” 28 U.S.C.A. § 1400(a) (West 2006). An individual “resides” for

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venue purposes in the district of his domicile. 17 James Wm. Moore, et al., Moore’s Federal Practice,

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§ 110.39[2], at 110-76 (3d ed. 2011). A defendant is “found” for venue purposes where he is subject to

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personal jurisdiction. Id. (footnote omitted); see Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d

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1124, 1126 (9th Cir. 2010) (“This circuit interprets [28 U.S.C. § 1400(a)] to allow venue in any judicial

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district where, if treated as a separate state, the defendant would be subject to personal jurisdiction.”).

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Plaintiff fails to address venue in its Motion. In the Complaint, however, Plaintiff asserts venue

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is proper because although the true identities of the Defendants are unknown, “on information and belief,

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each Defendant may be found in this District and a substantial part of the infringing acts complained of

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occurred in this District.” (Compl. at 3, Doc. No. 1.) However, only 18 of the 19 Defendants have IP

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addresses in the Southern District of California. It appears that venue in this judicial district would be

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improper for the Defendant located outside of this district. See 808 Holdings, No. 12-CV-0186 MMA.

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Thus, it is unclear whether Plaintiff’s Complaint can survive a motion to dismiss by the Doe Defendant

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not located in the Southern District of California.

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V.

CONCLUSION

Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference

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[Doc. No.4] is GRANTED in part and DENIED in part. The Plaintiff has made a sufficient showing to

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satisfy the three-factor test for18 of the 19 Doe Defendants. For these 18 Defendants, Plaintiff’s Motion

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is GRANTED. Plaintiff may serve subpoenas on the ISPs for the 18 Defendants with addresses in this

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judicial district, seeking identifying information relating to the following “Host IP addresses”: (1)

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174.65.80.191. (Lakeside, California), (2) 68.101.162.72 (San Diego, California), (3) 68.111.153.253

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(Escondido, California), (4) 68.6.172.89 (Oceanside, California), (5) 68.7.142.178 (Santee, California),

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(6) 68.7.168.77 (Oceanside, California), (7) 70.168.50.99 (San Diego, California), (8) 72.197.54.68

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(Oceanside, California), (9) 98.176.175.22 (San Diego, California), (10) 98.176.194.83 (San Diego,

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California), (11) 24.165.10.191 (San Diego, California), (12) 24.165.8.70 (San Diego, California), (13)

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66.91.225.150 (San Diego, California), (14) 75.80.135.204 (San Diego, California), (15)75.80.99.49

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(San Diego, California), (16) 76.176.49.43 (Carlsbad, California), (17) 76.93.139.169 (San Diego,

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California), and (18) 76.96.185.19 (San Diego, California). (Pl.’s Mem. P.&A., Ex. B; Doc. No. 4-3.)

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Each subpoena must provide a minimum of forty-five days’ (45) notice before any production and shall

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be limited to one category of documents identifying the particular subscriber or subscribers on the “Hit

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Date (UTC)” listed on Exhibit B to Plaintiff’s Motion. (Id.) The requested information should be limited

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to the name and addresses of each subscriber. Any subpoenaed third party may seek a protective order if

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it determines there is a legitimate basis for doing so. The ISPs shall have fourteen calendar days after

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service of the subpoenas to notify the subscribers that their identity has been subpoenaed by Plaintiff.

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Each subscriber whose identity has been subpoenaed shall then have thirty calendar days from the date

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of the notice to seek a protective order or file any other responsive pleading. If appropriate, Plaintiff may

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then serve each individual identified by the ISPs, and made a party to this action, with no more than

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three interrogatories to determine whether the Internet subscriber is the proper defendant. See University

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of Tex. v. Vratil, 96 F.3d 1337, 1340-41 (10th Cir. 1996) (holding that interrogatories under Rule 33 of

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the Federal Rules cannot be served on nonparties); Rubino v. ACME Bldg. Maint., No. C08-00696 JW

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(HRL), 2010 U.S. Dist. LEXIS 10110, at *3-4 (N.D. Cal. Feb. 5, 2010) (same). No depositions are

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authorized at this time.
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With respect to the remaining Doe Defendant, Plaintiff’s Motion is DENIED.
IT IS SO ORDERED.

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DATED: June 12, 2012

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Hon. Bernard G. Skomal
U.S. Magistrate Judge
United States District Court

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