Dallas Buyers Club, LLC v. DOE-174.65.2.54

Filing 10

ORDER denying Plaintiff's 9 Motion to Use Information Provided by Cox; denying without prejudice 9 Motion for Additional Time to Serve the Complaint. If Pla attempts, but is unable to serve the Complaint before the 120 day period expires, Pla may request an extension of time from the assigned District Judge. Signed by Magistrate Judge David H. Bartick on 11/5/2015. (jah)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

Case No.: 15cv1615-BAS (DHB)

DALLAS BUYERS CLUB, LLC, a Texas
limited liability company,
Plaintiff,

ORDER DENYING PLAINTIFF'S
MOTION TO USE INFORMATION
AND ADDITIONAL TIME TO
SERVE COMPLAINT[ECF No. 9]

13
14
15

v.
DOE-174.65.2.54,
Defendant.

16
17
18

On July 21, 2015, Plaintiff filed a Complaint against Doe, a subscriber assigned IP

19

address 174.65.2.54 (“Defendant”). (ECF No. 1.) Plaintiff alleges a single cause of

20

action for direct copyright infringement of the motion picture Dallas Buyers Club. On

21

August 20, 2015, the Court granted Plaintiff leave to subpoena records from Internet

22

Service Provider (“ISP”) Cox Communications in order to learn the identity of the

23

account holder assigned to Defendant’s IP address. (ECF No. 8.) The Court permitted

24

the early discovery so that Plaintiff would be able to identify and serve Defendant. The

25

Court specifically limited the scope of the subpoena to requesting the subscriber’s name

26

and address. The Court expressly prohibited Plaintiff from requesting any other contact

27

information, such as a telephone number or email address.

28

///
1
15cv1615-BAS (DHB)

1

According to Plaintiff, Cox Communications responded to the subpoena on

2

October 7, 2015. The subpoena response included the telephone number associated with

3

the subscriber, despite the Court’s order. Plaintiff now requests permission to use the

4

phone number. Plaintiff also seeks an additional 120 days to serve the Complaint so that

5

it can “continue discovery.” (ECF No. 9.)

6

The Court has already determined that a name and address was sufficient

7

information to permit Plaintiff to serve the Complaint. The Court also already found that

8

additional discovery beyond the subpoena was not appropriate at this juncture in the

9

litigation. The fact that Plaintiff gratuitously came into possession of the telephone

10

number associated with the Doe Defendants’ IP address does not change the Court’s prior

11

reasoning. The purpose of early discovery in an action such as this is “to permit the

12

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

13

Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing

14

Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Early discovery is not intended

15

to facilitate a plaintiff’s efforts to communicate with a Doe defendant or pursue pre-

16

service-of-process settlement negotiations. See e.g. Hard Drive Productions, Inc. v. Does

17

1-90, 2012 WL 1094653, *6 (N.D. Cal. Mar. 30, 2012) (denying request for early

18

discovery in a copyright infringement action and expressing concern that the plaintiff

19

would use the subscriber information to pursue an “extrajudicial business plan” of

20

extracting settlement payments from potential infringers); Malibu Media LLC v. John

21

Doe, 13-cv-435-LAB-DHB, ECF No. 11 (S.D. Cal. Aug. 14, 2013) (denying motion to

22

quash subpoena to ISP provider for name and address of subscriber, but limiting the use

23

of the information “for service of process only” and restricting the plaintiff from

24

contacting the doe defendant under after an answer was filed); Patrick Collins, Inc. v.

25

John Does 1-6, 2012 U.S. Dist. LEXIS 77486 (S.D.N.Y June 1, 2012) (permitting early

26

discovery but stating “[t]he Court can see no reason why the disclosure of the Doe

27

defendants’ telephone numbers is necessary at this stage of the litigation to preserve

28

Plaintiff’s copyright interests.”). Here, Plaintiff has not shown how use of the telephone
2
15cv1615-BAS (DHB)

1

number will lead to service of the Complaint. Plaintiff has received a name and address

2

from Cox Communications, and that should be sufficient. Plaintiff’s request to use the

3

telephone number provided by Cox Communications is therefore, DENIED.

4

Further, Plaintiff has not shown that it will be unable to serve the Complaint within

5

the time frame provided by Rule 4 of the Federal Rules of Civil Procedure. Indeed,

6

beyond mailing unofficial letters to the address provided by Cox Communications, it

7

does not appear Plaintiff has made any effort to actually serve the Complaint. The

8

Complaint was filed on July 21, 2015. Therefore, Plaintiff has approximately 2 more

9

weeks to effectuate service. Because there is still time remaining for Plaintiff to timely

10

serve the Complaint, Plaintiff’s request for additional time is DENIED without

11

prejudice. If Plaintiff attempts, but is unable to serve the Complaint before the 120 day

12

period expires, Plaintiff may request an extension of time from the district judge assigned

13

to this case.

14
15

IT IS SO ORDERED.
Dated: November 5, 2015

16
17
18
19
20
21
22
23
24
25
26
27
28
3
15cv1615-BAS (DHB)