Cobbler Nevada, LLC v. DOE-68.8.213.203

Filing 7

ORDER Granting 3 Plaintiff's Ex Parte Motion to Expedite Discovery. Signed by Magistrate Judge Jan M. Adler on 12/15/15. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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COBBLER NEVADA, LLC,
Plaintiff,

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v.

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DOE-68.8.213.203,
Defendant.

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Case No. 15-CV-2729-GPC (JMA)
ORDER GRANTING
PLAINTIFF’S EX PARTE
MOTION TO EXPEDITE
DISCOVERY
[ECF No. 3]

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Before the Court is an Ex Parte Motion to Expedite Discovery filed by

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Plaintiff Cobbler Nevada, LLC (“Plaintiff”). (ECF No. 3.) For the reasons

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discussed below, Plaintiff’s application is GRANTED.

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I.

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PROCEDURAL HISTORY
On December 4, 2015, Plaintiff filed a Complaint against Defendant

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Doe-68.8.213.203 (“Defendant”). (Compl., ECF No. 1). Plaintiff purports to

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be the registered owner of United States Copyright Registration Number

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PAu 3-744-688 for the motion picture entitled “The Cobbler.” Compl., ¶¶ 6-

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7. The Complaint alleges a claim of copyright infringement. Plaintiff

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alleges that Defendant, using IP address 68.8.213.203, infringed Plaintiff’s

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copyright by copying and distributing Plaintiff’s motion picture through a

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public BitTorrent network without Plaintiff’s permission or consent. Id., ¶
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35. Plaintiff alleges Defendant engaged in infringement activity on over

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100 occasions between September 24, 2015 and November 27, 2015. Id.,

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¶ 12 & Ex. 1.
Plaintiff seeks leave of court to serve a subpoena pursuant to Fed. R.

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Civ. P. 45 on Defendant’s internet service provider (“ISP”), Cox

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Communications, in order to identify the subscriber and account holder

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assigned to the IP address used by Defendant.

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II.

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

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parties have conferred pursuant to Federal Rule of Civil Procedure 26(f).

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Fed. R. Civ. P. 26(d)(1). Yet, “in rare cases, courts have made exceptions,

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permitting limited discovery to ensue after filing of the complaint to permit

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the plaintiff to learn the identifying facts necessary to permit service on the

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defendant.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577

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

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

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cause for the early discovery. Semitool, Inc. v. Tokyo Elec. Am., Inc., 208

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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

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unknown at the time the complaint is filed, courts may grant plaintiffs leave

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to take early discovery to determine the defendants’ identities “unless it is

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clear that discovery would not uncover the identities, or that the complaint

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would be dismissed on other grounds.” Gillespie, 629 F.2d at 642. A

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district court’s decision to grant discovery to determine jurisdictional facts is

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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

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early discovery to identify certain defendants. Id. at 578-80. First, the

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plaintiff should “identify the missing party with sufficient specificity such that
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the Court can determine that defendant is a real person or entity who could

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be sued in federal court.” Id. at 578. Second, the movant must describe

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“all previous steps taken to locate the elusive defendant” to ensure that the

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plaintiff has made a good faith effort to identify and serve process on the

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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

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prevent abuse of this extraordinary application of the discovery process

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and to ensure that the plaintiff has standing,” the plaintiff must show that

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some act giving rise to liability actually occurred and that the discovery is

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aimed at identifying the person who actually committed the act. Id. at 579-

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80.

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III.

DISCUSSION

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A.

Identification of Missing Parties with Sufficient Specificity

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First, Plaintiff must identify Defendant with enough specificity to

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enable the Court to determine that the defendant is a real person or entity

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who would be subject to the jurisdiction of this Court. Id. at 578. “[A]

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plaintiff identifies Doe defendants with sufficient specificity by providing the

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unique IP addresses assigned to an individual defendant on the day of the

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allegedly infringing conduct, and by using “geolocation technology” to trace

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the IP address to a physical point of origin. 808 Holdings, LLC v. Collective

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of Dec. 29, 2011 Sharing Hash, 2012 WL 1648838, at *4 (S.D. Cal. May 4,

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2012). Here, Defendant identified the IP address of the computer used by

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Defendant, and used geolocation technology to trace each TCP/IP

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connection made to IP address 68.8.213.203. Compl., ¶¶ 12-15 & Ex. 1.

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Defendant determined the ISP that had provided the IP address associated

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with Defendant was Cox Communications, and the point of origin for the IP

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address was San Diego, California, located in this district. Id., Ex. 1.

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Consequently, Plaintiff has identified Defendant with sufficient specificity
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and has satisfied the first factor of the test for permitting early discovery.

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B.

Previous Attempts to Locate Defendant

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Next, Plaintiff must identify all previous steps taken to identify the

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Doe Defendant in a good faith effort to locate and serve it. See Columbia

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Ins. Co., 185 F.R.D. at 579. According to Plaintiff, “Plaintiff has no means

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to readily identify the Doe defendant as a named individual.” Ex Parte

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Motion at 5. This is the case because although publicly available data

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allowed Plaintiff to identify the specific ISP used by Defendant as well as

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the city associated with the IP address, it did not permit Plaintiff to

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ascertain the identity of the subscriber or actual defendant. Id. at 2.

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Accordingly, Plaintiff appears to have investigated and obtained the data

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pertaining to the alleged infringement in a good faith effort to locate

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Defendant. See, e.g., Digital Sin, Inc. v. Does 1-5698, No. C-11-04397 LB,

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

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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

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that the Complaint can withstand a motion to dismiss. See Columbia Ins.

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Co., 185 F.R.D. at 579.

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1.

Granted

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Ability to State a Claim Upon Which Relief Can Be

Plaintiff alleges that it is the owner of the copyright for the work at

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issue, a motion picture entitled “The Cobbler,” and that Defendant infringed

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Plaintiff’s copyright by copying and distributing Plaintiff’s motion picture

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through a public BitTorrent network without Plaintiff’s permission or

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consent. Compl., ¶ 35. The Court finds Plaintiff has alleged a prima facie

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case of copyright infringement against Defendant.

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2.

Personal Jurisdiction

Plaintiff bears the burden of establishing jurisdictional facts. See
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Columbia Ins. Co., 185 F.R.D. at 578. Plaintiff, using geolocation

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technology, traced Defendant’s IP address to a point of origin within the

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State of California. Compl., ¶ 14. Accordingly, Plaintiff has alleged

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sufficient facts to show it can likely withstand a motion to dismiss for lack of

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personal jurisdiction. See, e.g., Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS

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65614, at *6-7.
3.

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Venue

Plaintiff alleges that venue in this District is proper as to Defendant
under 28 U.S.C. §§ 1391(b) and 1400(a). Ex Parte Motion at 6. “The

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venue of suits for infringement of copyright is not determined by the

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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.

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2d 1136, 1143 (N.D. Cal. 2007). Civil actions for copyright infringement

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“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

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“resides” for venue purposes in the district of his domicile. 17 James Wm.

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Moore, et al., Moore’s Federal Practice, § 110.39[2], at 110-76 (3d ed.

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2011). A defendant is “found” for venue purposes where he is subject to

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personal jurisdiction. Id. (footnote omitted); see also Brayton Purcell LLP v.

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Recordon & Recordon, 606 F.3d 1124, 1126 (9th Cir. 2010) (“This circuit

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

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

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jurisdiction.”). Plaintiff alleges venue is proper because Defendant

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allegedly committed the infringing acts complained of in this District.

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Compl., ¶ 14 & Ex. 1; Ex Parte Motion at 6. Thus, venue appears to be

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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

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CONCLUSION

Application is GRANTED as follows:
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Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45

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upon Cox Communications for the sole purpose of obtaining the name and

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address only of Defendant Doe, based on the IP address listed for him in

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the complaint -- 68.8.213.203. Cox Communications shall have fourteen

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(14) calendar days after service of the subpoena upon it to notify its

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subscriber that his/her identity has been subpoenaed by Plaintiff. The

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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

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Plaintiff by filing an appropriate pleading with this Court contesting the

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subpoena. If Cox Communications intends to move to quash the

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subpoena, it must do so prior to the return date of the subpoena. The

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return date of the subpoena must allow for at least forty-five (45) days from

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service to production. If a motion to quash or other customer challenge is

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brought, Cox Communications must preserve the information sought by

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Plaintiff pending resolution of the motion or challenge.

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2.

The subpoena shall not seek Defendant’s telephone number,

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email address, or Media Access Control (MAC) address, as this information

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is not necessary for Plaintiff to identify and serve Defendant.

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3.

Plaintiff may use the information disclosed pursuant to the

subpoena only in pursuing this litigation.
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Plaintiff shall serve a copy of this order with any subpoena

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served upon Cox Communications pursuant to this Order. Cox

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Communications, in turn, must provide a copy of this Order along with the

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required notice to the subscriber whose identity is sought pursuant to this

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Order.
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5.

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IT IS SO ORDERED.

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No other discovery is authorized at this time.

DATED: December 15, 2015

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Jan M. Adler
U.S. Magistrate Judge

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