Dallas Buyers Club, LLC v. DOE-70.181.229.254

Filing 9

ORDER Granting Plaintiff's 7 Ex Parte Motion to Expedite Discovery. Signed by Magistrate Judge Nita L. Stormes on 3/29/2016. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DALLAS BUYERS CLUB, LLC,

Case No.: 3:16-cv-00316-BEN-NLS

Plaintiff,

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v.

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ORDER GRANTING PLAINTIFF’S
EX PARTE MOTION TO EXPEDITE
DISCOVERY

DOE-76.176.112.107,
Defendant.

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(Dkt. No. 7)

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Before the Court is Plaintiff Dallas Buyers Club, LLC’s (“Plaintiff”) Ex Parte

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Motion to Expedite Discovery. (Dkt. No. 7.) No Defendant has been named or served,

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and so no opposition or reply briefs have been filed. For the reasons discussed below, the

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Court GRANTS Plaintiff’s motion.

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I.

Background
On February 9, 2016, Plaintiff filed the operative First Amended Complaint against

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“Doe,” who is allegedly a subscriber of Time Warner and assigned Internet Protocol

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(“IP”) address 76.176.112.107 (“Defendant”). (Dkt. No. 6.) Plaintiff alleges it is the

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registered copyright holder of the motion picture Dallas Buyers Club. (Id. at ¶ 1.)

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Plaintiff alleges “Dallas Buyers Club is an acclaimed motion picture nominated for six

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Academy Awards (Oscars), winning Best Actor, Best Supporting Actor, and Best

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Makeup. Plaintiff’s motion also won numerous Screen Actors Guild Awards, Golden
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Globes and other awards.” (Id. at ¶ 2.) Plaintiff alleges Defendant infringed its exclusive

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rights by utilizing BitTorrent to illegally copy and distribute Plaintiff’s motion picture

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without Plaintiff’s permission or consent. (Id. at ¶¶ 32-33.)

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Plaintiff seeks leave to conduct early discovery to learn the identity of the

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subscriber of the IP address from the Internet Service Provider (“ISP”) who leased the

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address. (Dkt. No. 7 at 1.) Specifically, Plaintiff seeks an order permitting it to serve a

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third party subpoena under Federal Rule of Civil Procedure 45 on the ISP that would

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require it to supply information about the identity of the subscriber to Plaintiff.1 (Dkt.

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No. 7 at 2.)

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II.

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Legal Standard
A party is generally not permitted to obtain discovery without a court order before

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

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P. 26(d)(1). However, courts have made exceptions to allow limited discovery after a

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complaint is filed to permit the plaintiff to learn the identifying information necessary to

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serve the defendant. Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D.

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Cal. 1999). A party who requests early or expedited discovery must make a showing of

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good cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-76

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(N.D. Cal. 2002) (applying “the conventional standard of good cause in evaluating

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Plaintiff’s request for expedited discovery”). Good cause exists “where the need for

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expedited discovery, in consideration of the administration of justice, outweighs the

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prejudice to the responding party.” Id. at 276.

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In its ex parte motion, Plaintiff names Cox Communications and Time Warner as the
ISP with the subscriber’s information. (Dkt. No. 7 at 2; Dkt. No. 7-1 at 2.) Yet
Plaintiff’s First Amended Complaint and the exhibit attached to it indicate that the ISP
who assigned the IP address to Defendant is Time Warner. (Dkt. No. 6 at 5; see also Dkt.
No. 6-1 at 1.) Accordingly, the Court construes Plaintiff’s ex parte request as seeking to
serve the subpoena on Time Warner because the reference to Cox Communications
appears to be a scrivener’s error.
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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.’” 808

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Holdings, LLC v. Collective of December 29, 2011 Sharing Hash, 2012 WL 1648838, *3

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(S.D. Cal. May 4, 2012) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.

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1980)). “A district court’s decision to grant discovery to determine jurisdictional facts is

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a matter of discretion.” Columbia Ins., 185 F.R.D. at 578 (citing Wells Fargo & Co. v.

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Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977).

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To determine whether “good cause” exists to permit expedited discovery to

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identify Doe defendants, district courts in this Circuit consider whether the plaintiff (1)

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“identif[ies] the missing party with sufficient specificity such that the Court can

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determine that the defendant is a real person or entity who could be sued in federal

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court”; (2) “identif[ies] all previous steps taken to locate the elusive defendant” to ensure

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that plaintiff has made a good faith effort to identify the defendant; and (3) “establish[es]

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to the Court’s satisfaction that plaintiff’s suit against defendant could withstand a motion

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to dismiss.” Columbia Ins., 185 F.R.D. at 578-80. Additionally, the plaintiff should

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demonstrate the discovery will likely lead to identifying information that will permit

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service of process. Id. at 580. These factors are considered to ensure the expedited

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discovery procedure “will only be employed cases where the plaintiff has in good faith

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exhausted traditional avenues for identifying a civil defendant pre-service, and will

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prevent use of this method to harass or intimidate.” Id.

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Discussion
a. Identification of Missing Party with Sufficient Specificity
Plaintiff must identify Defendant with enough specificity to enable the Court to

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

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jurisdiction of this Court. Columbia Ins., 185 F.R.D. at 578. Some district courts in this

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Circuit have determined that “a plaintiff identifies Doe defendants with sufficient
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specificity by providing the unique IP addresses assigned to an individual defendant on

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the day of the allegedly infringing conduct, and by using ‘geolocation technology’ to

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trace the IP addresses to a physical point of origin.” 808 Holdings, 2012 WL 1648838, at

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*4; see Openmind Solutions, Inc. v. Does 1-39, 2011 U.S. Dist. LEXIS 116552, at *6,

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(concluding that plaintiff satisfied the first factor by identifying the defendants’ IP

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addresses and by tracing the IP addresses to a point of origin within the State of

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California); see also Pink Lotus Entm’t v. Does 1-46, 2011 U.S. Dist. LEXIS 65614, *6

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(same). Others have concluded that merely identifying the IP addresses on the day of the

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alleged infringement satisfies this factor. 808 Holdings, 2012 WL 1648838, at *4 (citing

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cases).
Here, Plaintiff provided the Court with sufficient specificity that it seeks to sue a

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real person subject to this Court’s jurisdiction. In support of its identification of the

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missing party, Plaintiff filed a chart that lists the unique IP address corresponding to

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Defendant, and the dates and times of the purportedly infringing activity, as well as the

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city in which the IP address is located. (Dkt. No. 6-1 at 1.) Plaintiff’s First Amended

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Complaint also traces the IP address to this District. Plaintiff states in its First Amended

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Complaint that it used geolocation technology to confirm the IP address associated to the

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alleged infringement has been traced to this District. (Dkt. No. 6 at ¶ 11); see also Fed.

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R. Civ. P. 11(b)(3) (by presenting to the court a pleading, any attorney certifies that the

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“factual contentions have evidentiary support….”). Based on this information, the Court

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finds Plaintiff satisfied the “sufficient specificity” threshold. Accordingly, the Court

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concludes Plaintiff provided a sufficient showing that it seeks to sue a real person subject

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to the Court’s jurisdiction. Likewise, if Plaintiff obtains the identifying information from

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the ISP for the subscriber assigned the IP address at issue, the information sought in the

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subpoena would likely enable Plaintiff to serve the Defendant.

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b. Previous Attempts to Locate Defendants
Second, Plaintiff must describe all previous steps taken to locate the Defendant to
ensure that Plaintiff made a good faith effort to identify the Defendant. See Columbia
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Ins., 185 F.R.D. at 579. Here, Plaintiff states that it identified the Defendant’s ISP, where

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the Defendant is generally located, and the software Defendant used. Plaintiff avers,

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however, that it has no other practical means to identify the Defendant. Thus, the Court

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finds Plaintiff obtained and investigated the available data pertaining to the alleged

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infringement and made a good faith effort to locate Defendant.

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c. Whether Plaintiff Can Withstand a Motion to Dismiss

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To survive a motion to dismiss, Plaintiff must make a prima facie case of copyright

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infringement. A plaintiff must show: (1) ownership of a valid copyright; and (2) that

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Defendant violated the copyright owner’s exclusive rights under the Copyright Act.

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Range Road Music, Inc. v. East Coast Foods, Inc., 668 F.3d 1148, 1153 (9th Cir. 2012).

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Here, Plaintiff alleges it owns the registered copyright of the work that Defendant

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allegedly copied and distributed using the BitTorrent file distribution network. (Dkt. No.

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6 at ¶¶ 1, 8-10, 12-13.) Plaintiff also alleges it did not permit or consent to Defendant’s

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copying or distribution of its work. (Id. at ¶ 32.) It appears Plaintiff has stated a prima

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facie claim for copyright infringement that can withstand a motion to dismiss.

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Additionally, Plaintiff alleges sufficient facts to show it can withstand a motion to

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dismiss for lack of personal jurisdiction and withstand a motion for improper venue

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because Defendant’s IP address was traced to a location in this District. (Dkt. No. 6 at ¶

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11.) Accordingly, the Court concludes Plaintiff has alleged a prima facie showing of

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copyright infringement that would likely withstand a motion to dismiss.

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Conclusion

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For good cause shown, the Court GRANTS Plaintiff’s ex parte motion for

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expedited discovery. It is ORDERED that:
1. Plaintiff may serve a subpoena on Defendant’s ISP, Time Warner Cable,

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seeking only the name and address of the subscriber assigned to Defendant’s IP

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address. The ISP is not to release the Defendant’s telephone number or email

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address.

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2. Time Warner Cable shall have fourteen (14) calendar days after service of the

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subpoena to notify the subscriber that his or her identify has been subpoenaed

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by Plaintiff.

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

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calendar days from the date of the notice to seek a protective order or to file any

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other appropriate pleading with this Court contesting the subpoena.

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4. If the ISP wishes to move to quash the subpoena, it shall do so before the return

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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

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challenge is brought, the ISP shall preserve the information sought by Plaintiff

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in the subpoena pending resolution of such motion or challenge.

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5. Plaintiff shall serve a copy of this Order with any subpoena obtained and served

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pursuant to this Order to Time Warner Cable. Time Warner Cable, in turn,

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must provide a copy of this Order along with the required notice to the

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subscriber whose identity is sought pursuant to this Order.

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6. Plaintiff may only use the information disclosed in response to a Rule 45

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subpoena served on the ISP for the purpose of protecting and enforcing

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Plaintiff’s rights as set forth in its amended complaint. No other discovery is

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authorized at this time.

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IT IS SO ORDERED.
Dated: March 29, 2016

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