Dallas Buyers Club, LLC v. DOE-76.176.155.71

Filing 6

ORDER Granting Plaintiff's 4 Ex Parte Motion to Expedite Discovery. Signed by Magistrate Judge David H. Bartick on 4/15/2016. (rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16cv894-BTM (DHB)

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

ORDER GRANTING PLAINTIFF'S
EX PARTE MOTION TO EXPEDITE
DISCOVERY

DOE-76.176.155.71,

[ECF No. 4]

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Defendant.

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On April 13, 2016, Plaintiff Dallas Buyers Club, LLC filed an Ex Parte Motion for

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Expedited Discovery. (ECF No. 6.) Because Defendant has not been named or served, no

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opposition or reply briefs have been filed. For the reasons discussed below, Plaintiff’s

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Motion is GRANTED.

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I. PROCEDURAL HISTORY

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On April 13, 2016, Plaintiff filed a Complaint against Doe, a subscriber assigned IP

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address 76.176.155.71 (“Defendant”). (ECF No. 1.) Plaintiff alleges a single cause of

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action for direct copyright infringement. Plaintiff asserts that it is the registered copyright

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holder of the motion picture Dallas Buyers Club. (See ECF No. 1 at ¶¶ 4, 6.) Plaintiff

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contends Defendant used the BitTorrent file distribution network to copy and distribute

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Plaintiff’s copyrighted work through the Internet without Plaintiff’s permission. (ECF No.
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1 at ¶ 35.)

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On April 13, 2016, Plaintiff filed the instant Motion in which Plaintiff seeks leave

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to take early discovery to learn the identity of Defendant from his or her Internet Service

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Provider (“ISP”), Time Warner Cable. Specifically, Plaintiff seeks an order permitting it

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to serve a Rule 45 subpoena on Time Warner Cable for the identity of the account holder

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assigned to Defendant’s IP address, and for further reasonable discovery as may be needed.

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II. LEGAL STANDARDS

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Generally, discovery is not permitted without a court order before the parties have

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conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1).

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“[H]owever, in rare cases, courts have made exceptions, permitting limited discovery to

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ensue after filing of the complaint to permit the plaintiff to learn the identifying facts

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necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185

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F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.

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1980)). Requests for early or expedited discovery are granted upon a showing by the

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moving party of good cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D.

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273, 275-76 (N.D. Cal. 2002) (applying “the conventional standard of good cause in

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evaluating Plaintiff’s request for expedited discovery”).

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“The Ninth Circuit has held that when the defendants’ identities are unknown at the

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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 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). “A district

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court’s decision to grant discovery to determine jurisdictional facts is a matter of

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

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

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District courts apply a three-factor test when considering motions for early discovery

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to identify Doe defendants. Id. at 578-80. First, “the plaintiff should identify the missing
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party with sufficient specificity such that the Court can determine that defendant is a real

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person or entity who could be sued in federal court.” Id. at 578. Second, the plaintiff

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“should identify 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 defendant. Id. at

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579. Third, the “plaintiff should establish to the Court’s satisfaction that plaintiff’s suit

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against defendant could withstand a motion to dismiss.” Id. (citing Gillespie, 629 F.2d at

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642). Further “the plaintiff should file a request for discovery with the Court, along with

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a statement of reasons justifying the specific discovery requested as well as identification

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of a limited number of persons or entities on whom discovery process might be served and

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for which there is a reasonable likelihood that the discovery process will lead to identifying

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information about defendant that would make service of process possible.” Id. at 580.

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III. ANALYSIS
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Identification of Missing Party with Sufficient Specificity

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First, Plaintiff must identify Defendant with enough specificity to enable the Court

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to 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. This Court has previously

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determined that “a plaintiff identifies Doe defendants with sufficient specificity by

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providing the 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 the IP

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addresses to a physical point of origin.” 808 Holdings, 2012 WL 1648838, at *4 (quoting

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OpenMind Solutions, Inc. v. Does 1-39, No. C-11-3311 MEJ, 2011 WL 4715200 (N.D.

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Cal. Oct. 7, 2011); Pink Lotus Entm’t, LLC v. Does 1-46, No. C-11-02263 HRL, 2011 WL

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2470986 (N.D. Cal. June 21, 2011)).

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Here, Plaintiff has 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 city

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in which the IP address is located. (ECF No. 1-2.) Consequently, Plaintiff has identified

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Defendant with sufficient specificity. See OpenMind Solutions, 2011 WL 4715200, at *2

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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 California);

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Pink Lotus Entm’t, 2011 WL 2470986, at *3 (same). In addition, Plaintiff has presented

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evidence that the identified IP address is physically located in this district. (See ECF Nos.

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1-2; 4-3 at ¶8,9.)

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B.

Previous Attempts to Locate Defendant

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Next, Plaintiff must describe all prior steps it has taken to identify the defendant in

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a good faith effort to locate and serve him or her. See Columbia Ins., 185 F.R.D. at 579.

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Plaintiff states it has been able to identify much about Defendant, including which ISP

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provider he or she uses, where he or she is generally located, and what software he or she

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used to commit the alleged acts of infringement. (ECF No. 4-2 at 5.) However, Plaintiff

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generally maintains that there are no other practical measures available to determine the

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actual identity of Defendant. Thus, Plaintiff appears to have obtained and investigated the

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

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Defendant. See OpenMind Solutions, 2011 WL 4715200, at *3; MCGIP, LLC v. Does 1-

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149, 2011 WL 3607666, *2 (N.D. Cal. Aug. 3, 2011); Pink Lotus Entm’t, 2011 WL

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2470986, at *3.

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C.

Ability to Withstand a Motion to Dismiss

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“Finally, to be entitled to early discovery, [Plaintiff] must demonstrate that its

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Complaint can withstand a motion to dismiss.” 808 Holdings, 2012 WL 1648838 at *5

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(citing Columbia Ins., 185 F.R.D. at 579).

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1.

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In order to establish copyright infringement, a plaintiff must show: (1) ownership of

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a valid copyright, and (2) that the defendant violated the copyright owner’s exclusive rights

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under the Copyright Act. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004); 17

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U.S.C. § 501(a). Here, Plaintiff alleges it owns the registered copyright of the work that

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Defendant allegedly copied and distributed using the BitTorrent file distribution network.

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(ECF No. 1 at ¶¶ 4, 6.) Plaintiff also alleges it did not permit or consent to Defendant’s

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copying or distribution of its work. (Id. at ¶ 35.) It appears Plaintiff has stated a prima

Ability to State a Claim Upon Which Relief Can Be Granted

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

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2.

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Plaintiff bears the burden of establishing jurisdictional facts. See Columbia Ins. Co.,

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185 F.R.D. at 578. Plaintiff’s Complaint indicates that Defendant is located in this judicial

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district. (See ECF No. 1-2 (showing the IP address associated with Defendant is located in

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San Diego, California). The Complaint also alleges that Defendant’s acts of copyright

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infringement occurred using an IP address traced to a physical location in this district, and

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that Defendant is believed to reside in California. (ECF No. 1. at ¶ 3, 14.)

Personal Jurisdiction

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Therefore, at this early juncture, it appears Plaintiff has alleged sufficient facts to

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show it can likely withstand a motion to dismiss for lack of personal jurisdiction because

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Defendant’s IP address was traced to a location in this district. See 808 Holdings, 2012

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WL 1648838 at *6-7.

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2.

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“The venue of suits for infringement of copyright is not determined by the general

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provision governing suits in the federal district courts, rather by the venue provision of the

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Copyright Act.” Goldberg v. Cameron, 482 F. Supp. 2d 1136, 1143 (N.D. Cal. 2007)

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(citing 28 U.S.C. § 1400(a); Lumiere v. Mae Edna Wilder, Inc., 261 U.S. 174, 176 (1923)).

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“In copyright infringement actions, venue is proper ‘in the district in which the defendant

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or his agent resides or may be found.’” Brayton Purcell LLP v. Recordon & Recordon,

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606 F.3d 1124, 1128 (9th Cir. 2010) (quoting 28 U.S.C. § 1400(a)). “The Ninth Circuit

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interprets this statutory provision to allow venue ‘in any judicial district in which the

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defendant would be amendable to personal jurisdiction if the district were a separate

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state.’” Id.

Venue

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Plaintiff alleges venue is proper because although Defendant’s true identity is

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unknown, Defendant is believed to reside (and therefore can be found in this district), and

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a substantial part of the infringing acts complained of occurred in this district. (ECF No.

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1 at ¶ 3, 13.) Defendant appears to have an IP address in this district. (See ECF No. 1-2.)

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Plaintiff’s counsel has submitted a declaration explaining that counsel used geolocation
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trackers to trace the IP address to San Diego County. (ECF No. 4-3 at ¶8, 9.) Accordingly,

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Plaintiff’s Complaint can likely survive a motion to dismiss.

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D.

Specific Discovery Request

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Here, Plaintiff requests leave to serve a Rule 45 subpoena on Time Warner Cable.

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Plaintiff indicates the subpoena will be limited to requesting the name and address of the

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subscriber associated with Defendant’s IP address. The Court finds this limitation is

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appropriate. Therefore, the Court determines Plaintiff has shown good cause to subpoena

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records from Time Warner Cable for the identity of the subscriber assigned to Defendant’s

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IP address. However, once Plaintiff is able to identify and serve Defendant, the need for

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early discovery ceases. Therefore, Plaintiff’s request for leave to conduct any further

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discovery is denied.

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E.

Cable Privacy Act

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Finally, the Court must consider the requirements of the Cable Privacy Act, 47

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U.S.C. § 551. The Act generally prohibits cable operators from disclosing personally

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identifiable information regarding subscribers without the prior written or electronic

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consent of the subscriber. 47 U.S.C. § 551(c)(1). A cable operator, however, may disclose

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such information if the disclosure is made pursuant to a court order and the cable operator

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provides the subscriber with notice of the order. 47 U.S.C. § 551(c)(2)(B). The ISP that

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Plaintiff intends to subpoena in this case is a cable operator within the meaning of the Act.

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IV. CONCLUSION

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For the reasons set forth above, Plaintiff’s Ex Parte Motion for Expedited Discovery
is GRANTED, as follows:
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Plaintiff may serve a subpoena on Defendant’s ISP, Time Warner Cable,

seeking the name and address of the subscriber assigned to Defendant’s IP address.
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The subpoena must provide a minimum of forty-five (45) days notice before

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any production and shall be limited to one category of documents identifying the particular

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subscriber listed on Exhibit 1 to Plaintiff’s Complaint. (ECF No. 1-2.) The requested

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information should be limited to the name and address of the subscriber. Time Warner
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Cable may seek a protective order if it determines there is a legitimate basis for doing so.
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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 identity has been subpoenaed by Plaintiff.

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

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

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pleading.

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4.

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

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

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provide a copy of this Order along with the required notice to the subscriber whose identity

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is sought pursuant to this 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: April 15, 2016

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