Malibu Media, LLC v. John Does 1 through 11

Filing 5

ORDER Granting 4 MOTION for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference. Plaintiff shall serve a copy of this Order with any subpoena served upon Cox Communications pursuant to this Order. Signed by Magistrate Judge Jan M. Adler on 7/17/2012. (rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MALIBU MEDIA, LLC, a California
corporation,

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Plaintiff,
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v.
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JOHN DOES 1 through 11,
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Defendants.
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Case No. 12-CV-1061 BTM (JMA)
ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO SERVE
THIRD PARTY SUBPOENAS PRIOR
TO A RULE 26(F) CONFERENCE
[Doc. No. 4]

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Before the Court is Plaintiff’s Motion for Leave to Serve Third Party Subpoenas

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Prior to a Rule 26(f) Conference (“the Motion”). Doc. No. 4. After reviewing the Motion

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and accompanying Memorandum of Points and Authorities, the Court finds the Motion

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suitable for resolution on the papers pursuant to Civil Local Rule 7.1(d)(1). See S.D.

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Cal. Civ. R. 7.1(d)(1). For the reasons discussed below, the Motion is GRANTED.

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I.

PROCEDURAL HISTORY

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Plaintiff Malibu Media, LLC (“Plaintiff”) filed the Complaint on April 30, 2012

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against eleven John Does (“Defendants”). Doc. No. 1. Plaintiff purports to be the

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registered owner of United States Copyright Registration Number PA0001778844 for

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the motion picture entitled “Like the First Time.” Id. at 2. The Complaint alleges

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Defendants engaged in direct and contributory copyright infringement of the protected

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work. Id. at 10-11. According to Plaintiff, the Defendants distributed, displayed and

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shared the protected work through BitTorrent technology without Plaintiff’s

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authorization. Id. at 7-10. Plaintiff claims to have identified the Internet Protocol (“IP”)

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addresses of the Defendants involved in the infringing activity and, using publicly

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available search tools, has traced the IP addresses to physical addresses within this

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District as well as the Internet Service Provider (“ISP”) which leased the involved IP

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addresses to subscribers. Id. at 7; Motion, Ex. B.

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Plaintiff filed the Motion on the same day it filed the Complaint to learn the

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identities of the Defendants from their ISP. Motion at 2. Specifically, Plaintiff seeks

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leave of court to serve Rule 45 subpoenas on the ISP to discover the true name,

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

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of each Defendant. Id.

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II.

LEGAL STANDARDS

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

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have conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P.

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26(d)(1). Yet, “in rare cases, courts have made exceptions, permitting limited discovery

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to ensue after filing of the complaint to permit the plaintiff to learn the identifying facts

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necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com,

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185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th

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Cir. 1980)). Courts grant these requests when the moving party shows good cause for

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the early discovery. Semitool, Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 275-76

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(N.D. Cal. 2002).

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

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the time the complaint is filed, courts may grant plaintiffs leave to take early discovery to

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determine the defendants’ identities “unless it is clear that discovery would not uncover

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the identities, or that the complaint would be dismissed on other grounds.” Gillespie,

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629 F.2d at 642. A district court’s decision to grant discovery to determine jurisdictional

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facts is a matter of discretion. Columbia Ins. Co., 185 F.R.D. at 578.

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

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discovery to identify certain defendants. Id. at 578-80. First, the plaintiff should “identify

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the missing party 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 court.” Id. at 578.

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Second, the movant must describe “all previous steps taken to locate the elusive

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

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

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against the defendant could withstand a motion to dismiss. Id. “[T]o prevent abuse of

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this extraordinary application of the discovery process and to ensure that the plaintiff

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has standing,” the plaintiff must show that some act giving rise to liability actually

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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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III.

DISCUSSION

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Plaintiff seeks an order permitting it to subpoena the Defendants’ ISP in order to

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learn their true identities and serve them with the Complaint. Specifically, Plaintiff seeks

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to subpoena Cox Communications to identify the subscribers of the assigned IP

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addresses provided by Plaintiff’s forensic investigative service, IPP, Limited. See Fieser

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Decl. in Support of Plaintiff’s Motion (“Fieser Decl.”), Doc. No. 4-3, Ex. B (referred to as

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“Exhibit B” herein). All eleven of the IP addresses Plaintiff lists in Exhibit B are

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purportedly located in Southern California and all of the Defendants appear to be

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located within the Southern District of California. Id.

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A.

Identification of Missing Parties with Sufficient Specificity

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First, Plaintiff must identify the Defendants with enough specificity to enable the

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Court to determine that the defendant is a real person or entity who would be subject to

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the jurisdiction of this Court. Columbia Ins. Co., 185 F.R.D. at 578. In the Motion,

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Plaintiff asserts it properly pleads a cause of action for copyright infringement against

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each Doe Defendant, that there is no other way to obtain Defendants’ true identities

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because only the ISP can correlate the IP address used by one of its subscribers to a

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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. Motion at 4-7.
Some district courts in the Ninth Circuit have determined that a plaintiff identifies

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Doe defendants with sufficient specificity by providing the unique IP address assigned

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to an individual defendant on the day of the allegedly infringing conduct, and by using

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“geolocation technology” to trace the IP address to a physical point of origin. See

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Openmind Solutions, Inc. v. Does 1-39, No. C-11-33-11 MEJ, 2011 U.S. Dist. LEXIS

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116552, at *5-6 (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, 2011). Others

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have found that merely identifying the IP addresses assigned to the defendants on the

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day of the purported infringement is sufficient to satisfy the first factor. See MCIP, LLC

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v. Does 1-149, No. C-11-02331 LB, 2011 U.S. Dist. LEXIS 85363, at *4-5 (N.D. Cal.

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Aug. 15, 2011); First Time Videos, LLC v. Does 1-37, No. C-11-01675 LB, 2011 U.S.

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Dist. LEXIS 42376, at *5 (N.D. Cal. April 14, 2011).

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

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See, e.g., 808 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing Hash, No. 12-CV-

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0186 MMA (RBB), 2012 U.S. Dist. LEXIS 62980, at *10-11 (S.D. Cal. May 8, 2012). In

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this case, Plaintiff provided the Court with a chart listing the unique IP address

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corresponding to each Defendant that allegedly copied a piece of Plaintiff’s copyrighted

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work as identified by the unique hash number, as well as the city and state where each

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IP address is located. Fieser Decl., Ex. B. The dates of the allegedly infringing activity

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by Defendants are also listed on Exhibit B. Id. Consequently, Plaintiff has identified the

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Doe Defendants with sufficient specificity and has satisfied the first factor of the test for

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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

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Defendants in a good faith effort to locate and serve them. See Columbia Ins. Co., 185

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F.R.D. at 579. In the Motion, Plaintiff states that “there is no other way to obtain

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Defendants’ identities, except by serving a subpoena on Defendants’ ISPs.” Motion at

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4. Plaintiff hired a forensic investigation service, IPP, Limited, to identify the IP

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addresses that were allegedly used by Defendants to reproduce, distribute, display or

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perform Plaintiff’s copyrighted works. Compl. at 7-8; Motion at 4-5. According to

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Fieser, Plaintiff’s forensic investigator, “[o]nly the ISP to whom a particular IP address

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has been assigned for use by its subscriber can correlate the IP address to a real

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person, the subscriber of the internet service.” Fieser Decl., ¶ 8. Accordingly, Plaintiff

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appears to have investigated and obtained the data pertaining to the alleged

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infringements in a good faith effort to locate each Doe Defendant. See Digital Sin, Inc.

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v. Does 1-5698, No. C-11-04397 LB, 2011 U.S. Dist. LEXIS 128033, at *5 (N.D. Cal.

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Nov. 4, 2011); Openmind Solutions, 2011 U.S. Dist. LEXIS 116552, at *7-8; Pink Lotus

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Entm’t, 2011 U.S. Dist. LEXIS 65614, at *5; 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

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Lastly, to be entitled to early discovery, Plaintiff must demonstrate that the

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Complaint can withstand a motion to dismiss. See Columbia Ins. Co., 185 F.R.D. at

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579.
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Ability to State a Claim Upon Which Relief Can Be Granted

Plaintiff alleges that it is the owner of the copyright for the work at issue, a motion

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picture entitled “Like the First Time,” and that by using the BitTorrent protocol and

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process described, each Defendant copied a piece of Plaintiff’s copyrighted work

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identified by the unique hash number. Compl. at 3-7. The Court finds Plaintiff has

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alleged a prima facie case of direct and contributory infringement against the Doe

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defendants.

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2.

Personal Jurisdiction

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Plaintiff bears the burden of establishing jurisdictional facts. See Columbia Ins.

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Co., 185 F.R.D. at 578. In the Motion, Plaintiff does not explicitly discuss whether this

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Court has personal jurisdiction over the Defendants. However, according to Exhibit B,

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each computer allegedly used to access Plaintiff’s copyrighted work is located in this

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District. Fieser Decl., Ex. B. Plaintiff further alleges that each of the Defendants’ acts of

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

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located in California, that each Defendant resides in California, and/or that each

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Defendant has “engaged in continuous and systematic business activity” in California.

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Compl. at 2.

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Accordingly, it appears Plaintiff has alleged sufficient facts to show it can likely

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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, in some manner, was traced to a location in this

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District. See 808 Holdings, 2012 U.S. Dist. LEXIS 62980, at *11.
3.

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Venue

Plaintiff alleges that venue in this District is proper as to all Defendants under 28

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U.S.C. §§ 1391(b) and (c) and 1400(a). Compl., ¶ 5. “The venue of suits for

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infringement of copyright is not determined by the general provision governing suits in

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the federal district courts, rather by the venue provision of the Copyright Act.” Goldberg

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v. Cameron, 482 F. Supp. 2d 1136, 1143 (N.D. Cal. 2007). Civil actions for copyright

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infringement “may be instituted in the district in which defendant or his agent resides or

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may be found.” 28 U.S.C.A. § 1400(1) (West 2006). An individual “resides” for venue

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

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

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purposes where he is subject to personal jurisdiction. Id. (footnote omitted); see also

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Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1126 (9th Cir. 2010)

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(“This circuit interprets [28 U.S.C. § 1400(a)] to allow venue in any judicial district

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

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jurisdiction.”).

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

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alleges venue is proper because although the true identities of the Defendants are

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unknown, each Defendant may be found in this District, and a substantial part of the

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infringing acts complained of occurred in this District. Compl. at 2. All eleven

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Defendants appear to have IP addresses in this District. Fieser Decl., Ex. B. Thus,

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venue appears to be proper.

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Accordingly, Plaintiff’s Complaint can likely survive a motion to dismiss.

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IV.

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For the reasons set forth above, it is hereby ordered that Plaintiff’s Motion is

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CONCLUSION

GRANTED as follows:
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Plaintiff may serve subpoenas under Fed.R.Civ.P. 45 upon Cox

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Communications for the sole purpose of obtaining the names and addresses of

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subscribers using the eleven IP addresses identified in Exhibit B to the Fieser

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Declaration attached to the Motion at the precise dates and times identified therein.

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Cox Communications shall have fourteen (14) calendar days after service of the

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subpoena upon it to notify its subscriber that his/her identity has been subpoenaed by

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Plaintiff. The subscriber whose identity has been subpoenaed shall have thirty (30)

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calendar days from the date of such notice to challenge the disclosure to Plaintiff by

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filing an appropriate pleading with this Court contesting the subpoena. If Cox

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Communications intends to move to quash the subpoena, it must do so prior to the

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return date of the subpoena. The return date of the subpoena must allow for at least

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forty-five (45) days from service to production. If a motion to quash or other customer

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challenge is brought, Cox Communications must preserve the information sought by

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Plaintiff pending resolution of the motion or challenge.
2.

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Plaintiff may use the information disclosed pursuant to these subpoenas

only in pursuing this litigation.
3.

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Plaintiff shall serve a copy of this order with any subpoena served upon

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Cox Communications pursuant to this Order. Cox Communications, in turn, must

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provide a copy of this Order along with the required notice to any subscriber whose

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identity is sought pursuant to this Order.
IT IS SO ORDERED.
DATED: July 17, 2012

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Jan M. Adler
U.S. Magistrate Judge

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