Malibu Media, LLC v. John Does 1 through 35

Filing 13

ORDER denying 11 Ex Parte Application Re: Leave to File Motion for Reconsideration. Defendant's request that the Court stay the return dates for any outstanding subpoenas to ISPs pending a ruling on a motion for reconsideration is denied as moot. Signed by Magistrate Judge David H. Bartick on 9/4/12. (kaj)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

MALIBU MEDIA, LLC, a California
corporation,
Plaintiff,

12
v.

13
14

Civil No.

JOHN DOES 1 through 35,

12-cv-1135-LAB (DHB)

ORDER DENYING EX PARTE
APPLICATION RE: LEAVE TO FILE
MOTION FOR RECONSIDERATION
[ECF No. 11]

Defendants.

15
16

On August 19, 2012, putative John Doe No. 8 (“Defendant”) filed an Ex Parte Application re:

17

Leave to File Motion for Reconsideration (“Application”) (ECF No. 11) of the Court’s June 28, 2012

18

Order Granting in Part and Denying in Part Plaintiff’s Motion for Leave to Serve Third Party Subpoena

19

Prior to a Rule 26(f) Conference (“Early Discovery Order”) (ECF No. 6). Although Plaintiff Malibu

20

Media, LLC expressed the intent to oppose the Application prior to its filing (see ECF No. 11-2), to

21

date, no opposition to the Application has been filed. (See ECF No. 12.)

22

Defendant’s Application is brought pursuant to District Judge Larry A. Burns’ Standing Order

23

4(j), which requires that a party obtain leave of court prior to filing a motion for reconsideration.

24

Standing Order 4(j) states, in part: “Motions for reconsideration are disfavored unless a party shows

25

there is new evidence, a change in controlling law, or establishes that the Court committed clear

26

error in the earlier ruling.”1

27
1

28

Standing Order 4(j) also requires that ex parte applications seeking leave to file a motion for
reconsideration “contain a brief summary of the argument the party intends to present in a motion for
reconsideration, and shall not exceed five pages in length.” (Emphasis added.) The Court notes that
-1-

12cv1135-LAB (DHB)

1

Defendant contends that reconsideration is appropriate for several reasons. First, “although the

2

Early Discovery Order had a serious impact on the legal rights of the putative John Does, the Does

3

never got a chance to oppose plaintiff’s motion for early discovery.” (Application at 2:13-15.)2

4

Second, because Plaintiff has no intention of serving the Doe defendants, Plaintiff abused the subpoena

5

power to obtain identifying information in order to “shake down” the Doe defendants for an “easy

6

settlement.” (Application at 3:2-6.) Third, Plaintiff’s unopposed motion for early discovery (ECF No.

7

4) materially misled the Court by: (i) representing that federal courts have unanimously approved early

8

discovery for purposes of identifying fictitiously named defendants; (ii) failing to address the issue of

9

misjoinder; and (iii) submitting a sworn declaration from Plaintiff’s counsel indicating that the discovery

10

sought will facilitate service on the Doe defendants despite Plaintiff’s intent to never actually serve the

11

Doe defendants. (Application at 4:12-27.) Fourth, Defendant desires to introduce new evidence of

12

Plaintiff’s alleged abusive litigation tactics. (Application at 5:1-12.) Finally, the Early Discovery Order

13

failed to address determinative legal issues including that the discovery sought would not “very likely”

14

reveal the identity of the Doe defendants, the subpoenas are not “reasonably likely” to result in service

15

on the Doe defendants, and the Complaint cannot withstand a hypothetical motion to dismiss for

16

improper joinder. (Application at 5:15-21.)

17

Defendant also requests that the return dates for any outstanding subpoenas to Internet Service

18

Providers (“ISPs”) be stayed pending a ruling on a motion for reconsideration. (Application at 6:1-11.)

19

For the reasons set forth below, however, the Court DENIES Defendant’s Application for leave

20

to file a motion for reconsideration.

21

Initially, the Court’s Local Civil Rules require that a motion for reconsideration be filed within

22

twenty-eight (28) days after the entry of the order. CivLR 7.1(i)(2). The Court issued the Early

23

Discovery Order on June 28, 2012. Defendant’s Application was not filed until August 19, 2012.

24
25
26
27
28

Defendants’ Application, including exhibits, is 222 pages in length.
2

Page numbers for docketed materials cited in this Order refer to those imprinted by the Court’s
electronic filing system.
-2-

12cv1135-LAB (DHB)

1

However, Defendant has made no effort to explain this delay.3

2

However, notwithstanding Defendant’s untimely Application, the Court considers the merits of

3

Defendant’s Application and determines that Defendant has not shown that there is new evidence or a

4

change in controlling law, or that the Court committed clear error when it issued the Early Discovery

5

Order.

6

First, that the Doe defendants did not have an opportunity to oppose the early discovery does not

7

justify reconsideration. Motions for early discovery in order to seek the identity of fictitiously named

8

defendants will, by their very nature, be unopposed. However, the Ninth Circuit has expressly

9

authorized this method of discovery under appropriate circumstances. See Gillespie v. Civiletti, 629

10

F.2d 637, 642 (9th Cir. 1980).

11

Second, Defendant’s arguments that Plaintiff has no intention of serving the Doe defendants and

12

that Plaintiff has engaged in abusive litigation tactics does not come as a surprise to the Court. Indeed,

13

in issuing the Early Discovery Order, the Court was well aware that these arguments had been made in

14

other cases involving Plaintiff. Notwithstanding, the Court exercised its discretion to allow limited early

15

discovery in this case.

16

Third, the Court was not misled by Plaintiff’s purported misrepresentations. The Court was

17

mindful that federal courts have not unanimously approved the method of discovery authorized in this

18

case, and that the case law on this subject has generated numerous outcomes. In addition, although

19

Plaintiff did not address the issue of joinder, the Court considered the issue in its analysis. (See ECF

20

No. 6 at 11:6-15.) Finally, as stated above, the Court was mindful of claims made in connection with

21

other cases that Plaintiff has no intention of serving the Doe defendants. However, the Court, in its

22

discretion, determined that Plaintiff had made a sufficient showing under the three-factor test set forth

23

in Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).

24

Accordingly, because Defendant has not demonstrated that there is new evidence or a change

25

in controlling law, or that the Court committed clear error in issuing the Early Discovery Order, the

26

Court DENIES Defendant’s Ex Parte Application re: Leave to File Motion for Reconsideration.

27
3

28

Perhaps this delay occurred because Defendant only recently received notice from the ISP that
Defendant’s identity had been subpoenaed by Plaintiff. However, Defendant did not set forth this
reason, or any other, for the untimely Application.
-3-

12cv1135-LAB (DHB)

1

Defendant’s request that the Court stay the return dates for any outstanding subpoenas to ISPs pending

2

a ruling on a motion for reconsideration is DENIED AS MOOT.

3
4

IT IS SO ORDERED.
DATED: September 4, 2012

5
6

DAVID H. BARTICK
United States Magistrate Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-

12cv1135-LAB (DHB)