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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MALIBU MEDIA, LLC, 12 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, 15 Defendants. [DOC. NO. 4] 16 17 12CV1049-LAB (BGS) Plaintiff, 13 14 Civil No. The Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) 18 Conference (“Motion”) was filed on April 30, 2012. (Doc. No. 4.) The Motion was accompanied by a 19 Memorandum of Points and Authorities, declarations and exhibits. (Id.) Because no Defendant has 20 been named or served, no opposition or reply briefs have been filed. 21 22 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. 23 I. 24 Plaintiff, Malibu Media, LLC (“Plaintiff”) filed a Complaint against Does 1 through 19 25 (“Defendants”) on April 30, 2012. (Doc. No. 1.) Plaintiff purports to be the registered owner of, or has 26 applied to obtain the registration for 107 movies contained on a website. (Compl. at 2, 4; Doc. No. 1.) 27 First, Plaintiff alleges copyright infringement, stating that Defendants reproduced and distributed 28 Plaintiff’s copyrighted material through the internet without authorization. (Id. at 9.) Second, Plaintiff PROCEDURAL HISTORY 1 12cv1049 1 pleads contributory copyright infringement, alleging that by participating in a BitTorrent swarm, each 2 Defendant induced, caused or materially contributed to the infringing conduct of each other Defendant. 3 (Id. at 10-11.) 4 On April 30, 2012, Plaintiff filed this Motion in order to learn the identities of the Doe 5 Defendants from their respective Internet Service Providers (“ISPs”). (Pl.’s Mem. P.&A. at 2; Doc. No. 6 4.) Specifically, Plaintiff seeks leave of court to serve Rule 45 subpoenas on the ISPs in order to discover 7 the true name, address, telephone number, e-mail address, and Media Access Control (“MAC”) address 8 of each Defendant to whom the ISP issued an IP address. (Id.) In support of the Motion, Plaintiff 9 attached Tobias Fiesler’s (“Fiesler”) declaration. (Decl. Fiesler; Doc. No. 4-1.) Fiesler identified the 10 Internet Protocol (“IP”) addresses that were used to reproduce, distribute, display or perform Plaintiff’s 11 copyrighted works without authorization. (Id. at 2.) Attached to Fiesler’s declaration is an exhibit 12 listing the IP addresses, the date the IP addresses were used to infringe Plaintiff’s copyrighted works, 13 and location of the IP addresses when they were accessing the BitTorrent network. (Decl. Fiesler, Ex. B; 14 Doc. 4-3.) 15 II. 16 The Complaint alleges that the 19 Doe Defendants collectively infringed its copyrighted work 17 using BitTorrent file sharing protocols. (Compl. at 4; Doc. No. 1.) The Defendants are purportedly a 18 collection of “BitTorrent peers” whose computers connect for the purpose of downloading and 19 uploading a computer file in what is commonly called a “swarm.” (Id. at 6-7.) Plaintiff alleges that each 20 of Defendants’ IP addresses participated in a swarm that distributed Plaintiff’s copyrighted file identified 21 by the unique hash number 625659538761601BE56B75C3D1DF1053A7C8BB28 (“Unique Hash 22 Number”). (Id.) FACTUAL ALLEGATIONS 23 III. 24 Generally, discovery is not permitted without a court order before the parties have conferred LEGAL STANDARDS 25 pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). Yet, “in rare cases, courts 26 have made exceptions, permitting limited discovery to ensue after filing of the complaint to permit the 27 plaintiff to learn the identifying facts necessary to permit service on the defendant.” Columbia Ins. Co. 28 v., 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 2 12cv1049 1 (9th Cir. 1980)). Courts grant these requests when the moving party shows good cause for the early 2 discovery. Semitool, Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002). 3 The Ninth Circuit has held that when the defendants’ identities are unknown at the time the 4 complaint is filed, courts may grant plaintiffs leave to take early discovery to determine the defendants’ 5 identities “unless it is clear that discovery would not uncover the identities, or that the complaint would 6 be dismissed on other grounds.” Gillespie, 629 F.2d at 642. A district court’s decision to grant 7 discovery to determine jurisdictional facts is a matter of discretion. Columbia Ins. Co., 185 F.R.D. at 8 578. 9 District courts apply a three-factor test when considering motions for early discovery to identify 10 certain defendants. Id. at 578-80. First, the plaintiff should “identify the missing party with sufficient 11 specificity such that the Court can determine that defendant is a real person or entity who could be sued 12 in federal court.” Id. at 578. Second, the movant must describe “all previous steps taken to locate the 13 elusive defendant” to ensure that the plaintiff has made a good faith effort to identify and serve process 14 on the defendant. Id. at 579. Third, plaintiff should establish that its suit against the defendant could 15 withstand a motion to dismiss. Id. “[T]o prevent abuse of this extraordinary application of the discovery 16 process and to ensure that the plaintiff has standing,” plaintiff must show that some act giving rise to 17 liability actually occurred and that the discovery is aimed at identifying the person who actually 18 committed the act. Id. at 579-80. 19 IV. 20 Plaintiff seeks an order permitting it to subpoena the Doe Defendants’ ISPs in order to learn DISCUSSION 21 Defendants’ true identities and serve them with the Complaint. Specifically, Plaintiff seeks to subpoena 22 three ISPs—Cox Communications, Road Runner and Verizon Internet Services—to identify the 23 subscribers of the assigned IP addresses listed in Exhibit B to Fiesler’s declaration. (Decl. Fiesler, Ex. 24 B; Doc. No. 4-3.) All 19 of the IP addresses that Plaintiff lists in Exhibit B are allegedly located in 25 California; 18 of the Doe Defendants are allegedly located within San Diego County. (Id.) 26 A. Identification of Missing Parties with Sufficient Specificity 27 28 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 3 12cv1049 1 Court. Columbia Ins. Co., 185 F.R.D. at 578. In its Motion, Plaintiff asserts it properly pleads a cause 2 of action for copyright infringement against each Doe Defendant, that there is no other way to obtain 3 Defendants’ true identities because only the ISP can correlate the IP address used by one of its 4 subscribers to a real person, and without learning Defendants’ true identities, Plaintiff will not be able to 5 serve them with process and proceed with this case. (Pl.’s Mem. P.&A. at 6; Doc. No. 4.) 6 Some district courts in the Ninth Circuit have determined that a plaintiff identifies Doe 7 defendants with sufficient specificity by providing the unique IP addresses assigned to an individual 8 defendant on the day of the allegedly infringing conduct, and by using “geolocation technology” to trace 9 the IP address to a physical point of origin. See Openmind Solutions, Inc. v. Does 1-39, No. C-11-33-11 10 MEJ, 2011 U.S. Dist. LEXIS 116552, at *5-6 (N.D. Cal. Oct. 7, 2011); Pink Lotus Entm’t v. Does 1-46, 11 No. C-11-02263 HRL, 2011 U.S. Dist. LEXIS 65614, at *6-7 (N.D. Cal. June 21, 2011). Others have 12 found that merely identifying the IP addresses assigned to the defendants on the day of the purported 13 infringement is sufficient to satisfy the first factor. See MCGIP, LLC v. Does 1-149, No. C-11-02331 14 LB, 2011 U.S. Dist. LEXIS 85363, at *4-5 (N.D. Cal. Aug. 15, 2011) (opinion by Judge Beeler); First 15 Time Videos LLC v. Does 1-37, No. C-11-01675 LB, 2011 U.S. Dist. LEXIS 42376, at *5 (N.D. Cal. 16 April 14, 2011) (opinion by Judge Beeler). 17 This Court, like other courts in this district, finds the former standard persuasive. See 808 18 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing Hash, No. 12-CV-0186 MMA, ECF No. 7, at *8 19 (S.D. Cal. May 4, 2012) (opinion by Judge Brooks). In this case, Plaintiff filed a chart listing the unique 20 IP address corresponding to each Defendant that copied a piece of Plaintiff’s copyrighted works 21 identified by the Unique Hash Number, as well as the city and state where each IP address is located. 22 (Decl. Fiesler, Ex. B; Doc. No. 4-3.) Consequently, Plaintiff has identified the Doe Defendants with 23 sufficient specificity and satisfies the first factor of the test for permitting early discovery. 24 B. Previous Attempts to Locate Defendants 25 Next, Plaintiff must identify all previous steps taken to identify the Doe Defendants in a good 26 faith effort to locate and serve them. See Columbia Ins. Co., 185 F.R.D. at 579. Plaintiff states that 27 “there is no other way to obtain Defendants’ identities, except by serving a subpoena on Defendants’ 28 ISPs.” (Pl.’s Mem. P.&A. at 5; Doc. No. 4.) Plaintiff hired a forensic investigation service, IPP, 4 12cv1049 1 Limited, to identify the IP addresses that were used by Defendants to reproduce, distribute, display or 2 perform Plaintiff’s copyrighted works. (Decl. Fiesler at 2, Doc. No. 4-1.) According to Fiesler, “only 3 the ISP to whom a particular IP address has been assigned for use by its subscriber can correlate the IP 4 address to a real person, the subscriber of the internet service.” (Id.) Accordingly, Plaintiff appears to 5 have investigated and obtained the data pertaining to the alleged infringements in a good faith effort to 6 locate each Doe Defendant. See Digital Sin, Inc. v. Does 1-5698, No. C-11-04397 LB, 2011 U.S. Dist. 7 LEXIS 128033, at *5 (N.D. Cal. Nov. 4, 2011); Openmind Solutions, 2011 U.S. Dist. LEXIS 116552, at 8 *5; Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at *7; MCGIP, 2011 U.S. Dist. LEXIS 85363, at 9 *5. 10 11 12 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. 13 1. Stating a Claim Upon Which Relief Can Be Granted 14 The pending Motion maintains that Plaintiff has exceeded its obligation to plead a prima facie 15 case of copyright infringement. (Pl.’s Mem. P.&A. at 4-5; Doc. No. 4.) The Complaint alleges that 16 Plaintiff is the owner of the copyrights for the works at issue, that by using the BitTorrent protocol and 17 process described, each Defendant copied a piece of Plaintiff’s copyrighted works identified by the 18 Unique Hash Number. (Compl. at 8-9, Doc. No. 1.) 19 2. Lack of Personal Jurisdiction 20 The Plaintiff bears the burden of establishing jurisdictional facts. See Columbia Ins. Co., 185 21 F.R.D. at 578. In its Motion, Plaintiff does not discuss whether this Court has personal jurisdiction over 22 the Doe Defendants. In its Complaint, however, Plaintiff alleges that each of the Defendants’ acts of 23 copyright infringement occurred using an IP address traced to a physical address located within 24 California. (Compl. at 2; Doc. No. 1.) Accordingly, Plaintiff has alleged sufficient facts to show that it 25 is likely it can withstand a motion to dismiss for lack of personal jurisdiction because all of the Doe 26 Defendants have an IP address that was traced to a location in California. See 808 Holdings, No. 12- 27 CV-0186 MMA; but see also Celestial Inc. v. Swarm Sharing Hash, No. CV 12-00204 DDP (Ssx), 2012 28 U.S. Dist. LEXIS 41078, at *5-6 (C.D. Cal. Mar. 23, 2012) (denying request for early discovery because 5 12cv1049 1 the complaint could not withstand a motion to dismiss for lack of personal jurisdiction even though all of 2 the IP addresses were located in California). 3 3. Improper Venue 4 In the same vein, Plaintiff has not shown that its Complaint can survive a motion to dismiss for 5 improper venue as to the Doe Defendant with an IP address outside this judicial district. (See Pl.’s 6 Mem. P.&A, Ex. B; Doc. No. 4-3.) Doe 19's IP address is located in Palm Desert, California—a city 7 within the jurisdiction of the Central District of California. 8 9 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 10 is not determined be the general provision governing suits in the federal district courts, rather by the 11 venue provision of the Copyright Act.” Goldberg v. Cameron, 482 F. Supp. 2d 1136, 1143 (N.D. Cal. 12 2007). Civil actions for copyright infringement “may be instituted in the district in which the defendant 13 or his agent resides or may be found.” 28 U.S.C.A. § 1400(a) (West 2006). An individual “resides” for 14 venue purposes in the district of his domicile. 17 James Wm. Moore, et al., Moore’s Federal Practice, 15 § 110.39[2], at 110-76 (3d ed. 2011). A defendant is “found” for venue purposes where he is subject to 16 personal jurisdiction. Id. (footnote omitted); see Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 17 1124, 1126 (9th Cir. 2010) (“This circuit interprets [28 U.S.C. § 1400(a)] to allow venue in any judicial 18 district where, if treated as a separate state, the defendant would be subject to personal jurisdiction.”). 19 Plaintiff fails to address venue in its Motion. In the Complaint, however, Plaintiff asserts venue 20 is proper because although the true identities of the Defendants are unknown, “on information and belief, 21 each Defendant may be found in this District and a substantial part of the infringing acts complained of 22 occurred in this District.” (Compl. at 3, Doc. No. 1.) However, only 18 of the 19 Defendants have IP 23 addresses in the Southern District of California. It appears that venue in this judicial district would be 24 improper for the Defendant located outside of this district. See 808 Holdings, No. 12-CV-0186 MMA. 25 Thus, it is unclear whether Plaintiff’s Complaint can survive a motion to dismiss by the Doe Defendant 26 not located in the Southern District of California. 27 /// 28 /// 6 12cv1049 1 2 V. CONCLUSION Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference 3 [Doc. No.4] is GRANTED in part and DENIED in part. The Plaintiff has made a sufficient showing to 4 satisfy the three-factor test for18 of the 19 Doe Defendants. For these 18 Defendants, Plaintiff’s Motion 5 is GRANTED. Plaintiff may serve subpoenas on the ISPs for the 18 Defendants with addresses in this 6 judicial district, seeking identifying information relating to the following “Host IP addresses”: (1) 7 (Lakeside, California), (2) (San Diego, California), (3) 8 (Escondido, California), (4) (Oceanside, California), (5) (Santee, California), 9 (6) (Oceanside, California), (7) (San Diego, California), (8) 10 (Oceanside, California), (9) (San Diego, California), (10) (San Diego, 11 California), (11) (San Diego, California), (12) (San Diego, California), (13) 12 (San Diego, California), (14) (San Diego, California), (15) 13 (San Diego, California), (16) (Carlsbad, California), (17) (San Diego, 14 California), and (18) (San Diego, California). (Pl.’s Mem. P.&A., Ex. B; Doc. No. 4-3.) 15 Each subpoena must provide a minimum of forty-five days’ (45) notice before any production and shall 16 be limited to one category of documents identifying the particular subscriber or subscribers on the “Hit 17 Date (UTC)” listed on Exhibit B to Plaintiff’s Motion. (Id.) The requested information should be limited 18 to the name and addresses of each subscriber. Any subpoenaed third party may seek a protective order if 19 it determines there is a legitimate basis for doing so. The ISPs shall have fourteen calendar days after 20 service of the subpoenas to notify the subscribers that their identity has been subpoenaed by Plaintiff. 21 Each subscriber whose identity has been subpoenaed shall then have thirty calendar days from the date 22 of the notice to seek a protective order or file any other responsive pleading. If appropriate, Plaintiff may 23 then serve each individual identified by the ISPs, and made a party to this action, with no more than 24 three interrogatories to determine whether the Internet subscriber is the proper defendant. See University 25 of Tex. v. Vratil, 96 F.3d 1337, 1340-41 (10th Cir. 1996) (holding that interrogatories under Rule 33 of 26 the Federal Rules cannot be served on nonparties); Rubino v. ACME Bldg. Maint., No. C08-00696 JW 27 (HRL), 2010 U.S. Dist. LEXIS 10110, at *3-4 (N.D. Cal. Feb. 5, 2010) (same). No depositions are 28 authorized at this time. 7 12cv1049 1 2 With respect to the remaining Doe Defendant, Plaintiff’s Motion is DENIED. IT IS SO ORDERED. 3 4 DATED: June 12, 2012 5 6 7 Hon. Bernard G. Skomal U.S. Magistrate Judge United States District Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 12cv1049

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