Malibu Media, LLC v. John Doe

Filing 5

ORDER denying Plaintiff's 4 Ex Parte Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by Magistrate Judge Karen S. Crawford on 4/29/2016. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MALIBU MEDIA, LLC,

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Case No.: 16cv446 BAS (KSC)
Plaintiff,

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v.

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JOHN DOE subscriber assigned IP
address 76.176.134.214,

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ORDER DENYING PLAINTIFF'S EX
PARTE MOTION FOR LEAVE TO
SERVE A THIRD PARTY
SUBPOENA PRIOR TO A RULE
26(1) CONFERENCE

Defendant. I
Doc. No.4

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On March 18, 2016, Plaintiff filed an Ex Parte Motion for Leave to Serve a Third

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Party Subpoena Prior to a Rule 26(0 Conference, along with supporting exhibits. [Doc.

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No.4.] As plaintiff has not named or served a particular defendant in the action, no

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opposition or reply briefs have been filed. For the reasons outlined below, Plaintiffs Ex

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Parte Motion is DENIED. [Doc. No.4.]

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BACKGROUND

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Plaintiff Malibu Media, LLC is a limited liability company and the holder of rights

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to various copyrighted works, including several adult videos. [Doc. No.1.] On February

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18,2016, plaintiff filed a Complaint against a single "John Doe" identified by an Internet

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Protocol address ("IP address") of 76.176.134.214. ld. Plaintiff alleges direct copyright

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infringement against Defendant.ld. Plaintiff asserts that it is the registered copyright holder
16cv446 BAS (KSC)

1 of 60 copyrighted works which were allegedly infringed by defendant. [Doc. No.1, Ex. A.]
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Plaintiff asserts that defendant used a "BitTorrent" file distribution network to download,

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copy, and distribute plaintiffs copyrighted works through the internet without plaintiffs

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permission. [Doc. No.1.] Plaintiff alleges that its investigator, Excipio GmbH, used a

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computer program to detect and monitor this infringement activity and was able to observe

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downloading, reproduction, and distribution ofthe copyrighted videos by defendant. [Doc.

7 No.1, at 4.] However, plaintiff claims it cannot determine defendant's actual identity
8 without limited expedited discovery, namely the issuance of a subpoena to defendant's
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internet service provider, Time Warner Cable (hereafter "ISP"). [Doc. No.4-I, at 16-17.]

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FACTUAL ALLEGATIONS

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Plaintiff alleges that defendant reproduced and distributed the copyrighted videos by

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acting in concert with others using a "BitTorrent" file sharing method that is used to

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distribute data over the internet. [Doc. No.1, pp. 3-5.] Plaintiff explains that BitTorrent is

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a peer-to-peer file sharing network wherein the BitTorrent protocol breaks a digital file into

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many smaller pieces. [Doc. No.1, at 3.] Users can then exchange these small pieces among

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each other. Id. After a user receives all of the small pieces of a particular digital file, the

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user can use software that will reassemble the small pieces and enable the user to open and

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utilize the larger complete file. Id.

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Plaintiffs investigator, Excipio GmbH, identified IP address 76.176.134.214 as an

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IP address to which material was downloaded in violation ofdefendant's copyright. [Doc.

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No. 4-3, Ex. C.] Excipio GmbH uses Network Activity Recording and Supervision

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("NARS") software to routinely monitor the BitTorrent file distribution network for

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specific "hash values." [Doc. No. 4-3, at p. 2.] Each piece of a BitTorrent file, in addition

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to the entire file, has a unique "hash value." Id. at 3. A hash value acts as a unique digital

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fingerprint and every digital file has one hash value. Id. The Complaint includes a list of

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the 60 movie titles, their hash values, and the dates and times those movies were allegedly

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downloaded at IP address 76.176.134.214. [Doc. No. 1-2, Ex. A.] Plaintiff asserts that it

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used "geolocation technology" to ensure that the defendant's acts of copyright
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16cv446 BAS (KSC)

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infringement occurred using an Internet Protocol address ("IP address") traced to a physical

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address located within the District. [Doc. 1, at 2.]

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LEGAL STANDARD

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District courts generally prohibit formal discovery until after parties have conferred

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pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(l). However, the

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Ninth Circuit has held that district courts have discretion to grant early discovery to

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determine jurisdictional facts upon a showing ofgood cause. Gillespie v. Civiletti, 629 F .2d

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637, 642 (9th Cir. 1980); See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273,

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275-76 (N.D. Cal. 2002) (applying "the conventional standard of good cause in evaluating

10 Plaintiff's request for expedited discovery"). When a defendant's identity is unknown at
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the time a 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 the

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identities, or that the complaint would be dismissed on other grounds.'" 808 Holdings, LLC

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v. Collective of December 29, 2011 Sharing Hash, No. 12-cv-0186 MMA (RBB), 2012

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WL 1648838, *3 (S.D. CaL May 4,2012) (quoting Gillespie, 629 F.2d at 642).

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District courts apply a three-factor test when considering whether there is good cause

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for expedited discovery to determine the identity of Doe defendants. Columbia Ins. Co. V.

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Seescandy.com, 185 F.R.D. 573, 778-80 (N.D. Cal. 1999). First, the plaintiff is required to

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"identify the missing party with sufficient specificity such that the Court can determine

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that defendant is a real person or entity who could be sued in federal court." Id. at 578.

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Second, the plaintiff "should identify 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. In recent cases, district courts have determined that a

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plaintiff can identify a Doe defendant with sufficient specificity by providing a unique IP

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address assigned to an individual on the day of the allegedly infringing conduct, and by

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tracing the IP address to a physical point of origin which would subject the person to the

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court's jurisdiction. See, e.g., Arista Records, LLC v. Does 1-4, 589 F. Supp. 2d 151, 152­

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153 (D. Conn. 2008); Openmind Solutions, Inc. v. Does 1-39, No. C 11-3311 MEJ, 2011
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16cv446 BAS (KSC)

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WL 4715200, at 2 (N.D. Cal. Oct. 7,2011); Pink Lotus Entm't, LLC v. Does 1-46, No. C­

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11-02263 HRL, 2011 WL 2470986, at 3 (N.D. Cal. June 21, 2011). Third, the "plaintiff

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should establish to the Court's satisfaction that plaintiffs suit against defendant could

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withstand a motion to dismiss." Columbia Ins. Co. V. Seescandy.com, 185 F.R.D. 573,579

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(N.D. Cal. 1999) (citing Gillespie, 629 F.2d at 642). Further "the plaintiff should file a

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request for discovery with the Court, along with a statement of reasons justifying the

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specific discovery requested as well as identification of a limited number of persons or

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entities on whom discovery process might be served and for which there is a reasonable

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likelihood that the discovery process will lead to identifying information about defendant

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that would make service of process possible." Id. at 580.
DISCUSSION

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Plaintiff must identify defendant with enough specificity to enable this Court to

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

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of this Court. Malibu Media, LLC, v. John Doe - 75.80.166.89, No. 15CV2919 MMA

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(MDD) (S.D. Cal. February 17, 2016); Columbia Ins., 185 F.R.D. at 578. A plaintiff

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identifies Doe defendants with sufficient specificity by providing the unique IP addresses

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

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using 'geo10cation technology' to trace the IP addresses to a physical point of origin. 808

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Holdings, 2012 WL 1648838, at *4 (quoting OpenMind Solutions, Inc. v. Does 1-39, No.

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C-11-3311 MEJ, 2011 WL 4715200 (N.D. Cal. Oct. 7,2011); Pink Lotus Entm't, LLC v.

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Does 1-46, No. C-11-02263 HRL, 2011 WL 2470986 (N.D. Cal. June 21,2011)).

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In this case, plaintiff has failed to identify defendant with sufficient specificity

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because it has not established that the IP address identified corresponds to a defendant who

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is physically located in this District. The Complaint alleges: "Plaintiff used proven IP

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address geolocation technology which has consistently worked in similar cases to ensure

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that the Defendant's acts of copyright infringement occurred using an Internet Protocol

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address ("IP address") traced to a physical address located within this District, and

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therefore this Court has personal jurisdiction over the Defendant because (i) Defendant
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16cv446 BAS (KSC)

1 committed the tortious conduct alleged in this Complaint in this State, and (ii) Defendant
2 resides in this State and/or (iii) Defendant has engaged in substantial and not isolated
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business activity in this State." [Doc. No.1, at 2.] However, the allegation that the IP

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address at issue likely traces to a physical address in this District is not supported in the

5 declarations filed in support of this Motion. [Doc. No.4.] In its Memorandum of Points
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and Authorities, plaintiff asserts that it employed geolocation technology to trace the

7 physical address of the offending IP address within this jurisdiction. [Doc. No.4-I, at 20.]
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While plaintiff asserts that it used Maxmind ® Premium's IP geolocation database, it

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provides no evidentiary support verifYing the accuracy of this geolocation technology, but

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instead merely cites the Complaint for support. [Doc. No. 4-1 at 20.] While plaintiff did

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submit the Declaration of a retained investigator, Daniel Susac, to provide evidentiary

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support for the forensic techniques utilized in observing the act of infringement, no

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evidentiary support was provided to show that the IP address at issue likely resolves to a

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physical address located in this District. [Doc. No. 4-3]; See also [Doc. No.4.] This Court

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cannot rely on plaintiff s unsupported assertions regarding the use and accuracy of the

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geolocation technology. As no reliable evidence was presented to support the allegation

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that defendant is subject to this Court's jurisdiction, the instant Motion must fail.
CONCLUSION

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For the reason set forth above, plaintiffs Ex Parte Motion for Leave to Serve a Third
Party Subpoena Prior to a Rule 26(f) Conference is DENIED. [Doc. No.4.]
IT IS SO ORDERED.
Dated: April 29, 2016

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United States Magistrate Judge

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16cv446 BAS (KSC)