Dallas Buyers Club, LLC v. DOE-68.101.166.122

Filing 7

ORDER granting 2 EX PARTE MOTION to Expedite Discovery. Signed by Magistrate Judge Mitchell D. Dembin on 5/4/16. (Dembin, Mitchell)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 16cv0979 LAB (MDD) Dallas Buyers Club, LLC, Plaintiff, 12 13 v. 14 Doe-68.101.166.122, 15 Defendant. ORDER GRANTING MOTION FOR EARLY DISCOVERY [ECF NO. 2] 16 17 Before the Court is Plaintiff’s Ex Parte Motion for Expedited Discovery 18 filed on April 22, 2016. (ECF No. 2). No Defendant has been named or 19 served. For the reasons discussed below, Plaintiff’s Motion is GRANTED. 20 21 I. PROCEDURAL HISTORY On April 22, 2016, Plaintiff filed a Complaint against Doe, allegedly a 22 subscriber of Cox Communications assigned IP address 68.101.166.122 23 (“Defendant”). (ECF No. 1). Plaintiff alleges a single cause of action for 24 direct copyright infringement. Plaintiff asserts that it is the registered 25 copyright holder of the motion picture Dallas Buyers Club. (Id. ¶¶ 4, 6). 26 Plaintiff contends Defendant used the BitTorrent file distribution network 1 16cv0979 LAB (MDD) 1 to copy and distribute Plaintiff’s copyrighted work through the Internet 2 without Plaintiff’s permission. (Id. ¶ 35). 3 Plaintiff seeks leave to conduct early discovery to learn the identity of 4 the subscriber of the subject Internet Protocol (“IP”) address from the 5 Internet Service Provider (“ISP”) who leased that IP address to its 6 subscriber during the relevant period. Specifically, Plaintiff seeks an order 7 permitting it to serve a third party subpoena, pursuant to Fed. R. Civ. P. 45, 8 on Cox Communications requiring the ISP to supply the name and address 9 of its subscriber to Plaintiff. 10 II. LEGAL STANDARDS 11 Formal discovery generally is not permitted without a court order 12 before the parties have conferred pursuant to Federal Rule of Civil 13 Procedure 26(f). Fed. R. Civ. P. 26(d)(1). “[H]owever, in rare cases, courts 14 have made exceptions, permitting limited discovery to ensue after filing of 15 the complaint to permit the plaintiff to learn the identifying facts necessary 16 to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 17 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 18 637, 642 (9th Cir. 1980)). Requests for early or expedited discovery are 19 granted upon a showing by the moving party of good cause. See Semitool, 20 Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002) 21 (applying “the conventional standard of good cause in evaluating Plaintiff’s 22 request for expedited discovery”). 23 “The Ninth Circuit has held that when the defendants’ identities are 24 unknown at the time the complaint is filed, courts may grant plaintiffs 25 leave to take early discovery to determine the defendants’ identities ‘unless 26 it is clear that discovery would not uncover the identities, or that the 2 16cv0979 LAB (MDD) 1 complaint would be dismissed on other grounds.’” 808 Holdings, LLC v. 2 Collective of December 29, 2011 Sharing Hash, No. 12-cv-0186 MMA (RBB), 3 2012 WL 1648838, *3 (S.D. Cal. May 4, 2012) (quoting Gillespie, 629 F.2d at 4 642). “A district court’s decision to grant discovery to determine 5 jurisdictional facts is a matter of discretion.” Columbia Ins., 185 F.R.D. at 6 578 (citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 7 n.24 (9th Cir. 1977)). 8 9 District courts apply a three-factor test when considering motions for early discovery to identify Doe defendants. Id. at 578-80. First, “the 10 plaintiff should identify the missing party with sufficient specificity such 11 that the Court can determine that defendant is a real person or entity who 12 could be sued in federal court.” Id. at 578. Second, the plaintiff “should 13 identify all previous steps taken to locate the elusive defendant” to ensure 14 that the plaintiff has made a good faith effort to identify and serve process 15 on the defendant. Id. at 579. Third, the “plaintiff should establish to the 16 Court’s satisfaction that plaintiff’s suit against defendant could withstand a 17 motion to dismiss.” Id. (citing Gillespie, 629 F.2d at 642). Further “the 18 plaintiff should file a request for discovery with the Court, along with a 19 statement of reasons justifying the specific discovery requested as well as 20 identification of a limited number of persons or entities on whom discovery 21 process might be served and for which there is a reasonable likelihood that 22 the discovery process will lead to identifying information about defendant 23 that would make service of process possible.” Id. at 580. 24 // 25 // 26 3 16cv0979 LAB (MDD) 1 III. ANALYSIS 2 A. 3 First, Plaintiff must identify Defendant with enough specificity to 4 enable the Court to determine that Defendant is a real person or entity who 5 would be subject to the jurisdiction of this Court. Columbia Ins., 185 F.R.D. 6 at 578. This Court has previously determined that “a plaintiff identifies 7 Doe defendants with sufficient specificity by providing the unique IP 8 addresses assigned to an individual defendant on the day of the allegedly 9 infringing conduct, and by using ‘geolocation technology’ to trace the IP Identification of Missing Party with Sufficient Specificity 10 addresses to a physical point of origin.” 808 Holdings, 2012 WL 1648838, at 11 *4 (quoting OpenMind Solutions, Inc. v. Does 1-39, No. C-11-3311 MEJ, 12 2011 WL 4715200 (N.D. Cal. Oct. 7, 2011); Pink Lotus Entm’t, LLC v. Does 13 1-46, No. C-11-02263 HRL, 2011 WL 2470986 (N.D. Cal. June 21, 2011)). 14 With the Complaint and with the instant Motion, Plaintiff filed a 15 chart reflecting that the user of the subject IP address engaged in allegedly 16 infringing activity from February 4 through February 27, 2016; identified 17 the ISP as Cox Communications; and located the IP address in San Diego, 18 California, within the Southern District of California. (ECF Nos. 1-2; 2-1). 19 Critically, Plaintiff also submitted the Declaration of James S. Davis in 20 support of this Motion. (ECF No. 2-3). Mr. Davis states, under penalty of 21 perjury, that the subject IP address belongs to Cox Communications and 22 that he employed certain geolocation technology to locate the subject IP 23 address within the Southern District of California. (Id.). 24 25 Plaintiff does not address, however, when the geolocation effort was performed. It is most likely that the subscriber is a residential user and the 26 4 16cv0979 LAB (MDD) 1 IP address assigned by ISP is “dynamic.”1 Consequently, it matters when 2 the geolocation was performed. In the context of dynamic IP addresses, “a 3 person using [an IP] address one month may not have been the same person 4 using it the next.” State of Connecticut v. Shields, No. CR06352303, 2007 5 WL 1828875 *6 (Conn. Sup. Ct. June 7, 2007). If performed in temporal 6 proximity to the offending downloads, the geolocation may be probative of 7 the physical location of the subscriber. If not, less so, potentially to the 8 point of irrelevance. Here, although Plaintiff does not provide the date that 9 geolocation was performed, the Court notes that the alleged infringement 10 allegedly occurred within two months of the filing of the Complaint and the 11 instant Motion. Accordingly, the geolocation appears to have been 12 conducted close enough in time to the allegedly offending behavior to be 13 probative. 14 Consequently, Plaintiff has identified the Defendant, at this point, 15 with sufficient specificity. See OpenMind Solutions, 2011 WL 4715200, at 16 *2 (concluding that plaintiff satisfied the first factor by identifying the 17 defendants’ IP addresses and by tracing the IP addresses to a point of origin 18 within the State of California); Pink Lotus Entm’t, 2011 WL 2470986, at *3 19 (same). In addition, Plaintiff has presented evidence that the identified IP 20 address is physically located in this district. 21 22 23 24 25 26 “Static IP addresses are addresses which remain set for a specific user. . . . Dynamic IP addresses are randomly assigned to internet users and change frequently. . . . Consequently, for dynamic IP addresses, a single IP address may be re-assigned to many different computers in a short period of time.” Call of the Wild Movie, LLC v. Does, 770 F. Supp. 2d 332, 356-57 (D. D.C. 2011)(citations omitted). 1 5 16cv0979 LAB (MDD) 1 B. 2 Plaintiff must describe all prior steps it has taken to identify the Previous Attempts to Locate Defendant 3 defendant in a good faith effort to locate and serve him or her. See 4 Columbia Ins., 185 F.R.D. at 579. Plaintiff states it has been able to 5 identify the ISP used by the alleged infringer, where he or she is generally 6 located, and the software used to commit the alleged acts of infringement. 7 (ECF No. 5-1 at 4.) Plaintiff appears to have obtained and investigated the 8 available data pertaining to the alleged infringement in a good faith effort 9 to locate Defendant. See OpenMind Solutions, 2011 WL 4715200, at *3; 10 MCGIP, LLC v. Does 1-149, 2011 WL 3607666, *2 (N.D. Cal. Aug. 3, 2011); 11 Pink Lotus Entm’t, 2011 WL 2470986, at *3. 12 C. 13 “Finally, to be entitled to early discovery, [Plaintiff] must Ability to Withstand a Motion to Dismiss 14 demonstrate that its Complaint can withstand a motion to dismiss.” 808 15 Holdings, 2012 WL 1648838 at *5 (citing Columbia Ins., 185 F.R.D. at 579). 16 In order to establish copyright infringement, a plaintiff must show: (1) 17 ownership of a valid copyright, and (2) that the defendant violated the 18 copyright owner’s exclusive rights under the Copyright Act. Ellison v. 19 Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004); 17 U.S.C. § 501(a). Here, 20 Plaintiff alleges it owns the registered copyright of the work that Defendant 21 allegedly copied and distributed using the BitTorrent file distribution 22 network. (ECF No. 1 ¶¶ 4, 6, 12.) Plaintiff also alleges it did not permit or 23 consent to Defendant’s copying or distribution of its work. (Id. ¶ 35.) It 24 appears Plaintiff has stated a prima facie claim for copyright infringement 25 that can withstand a motion to dismiss. 26 6 16cv0979 LAB (MDD) 1 D. 2 As discussed above, Plaintiff has sufficiently established that it is Personal Jurisdiction 3 likely that the Defendant is located within the Southern District of 4 California and is subject to the personal jurisdiction of the Court. 5 E. Venue 6 “The venue of suits for infringement of copyright is not determined by 7 the general provision governing suits in the federal district courts, rather by 8 the venue provision of the Copyright Act.” Goldberg v. Cameron, 482 F. 9 Supp. 2d 1136, 1143 (N.D. Cal. 2007) (citing 28 U.S.C. § 1400(a); Lumiere v. 10 Mae Edna Wilder, Inc., 261 U.S. 174, 176 (1923)). “In copyright 11 infringement actions, venue is proper ‘in the district in which the defendant 12 or his agent resides or may be found.’” Brayton Purcell LLP v. Recordon & 13 Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010) (quoting 28 U.S.C. § 1400(a)). 14 “The Ninth Circuit interprets this statutory provision to allow venue ‘in any 15 judicial district in which the defendant would be amendable to personal 16 jurisdiction if the district were a separate state.’” Id. 17 As discussed above, Defendant is likely to be located in this District 18 and the acts complained of also likely occurred here. Accordingly, venue 19 appears proper in this District at this time. 20 F. 21 Plaintiff has not provided a proposed subpoena. Plaintiff stated, Specific Discovery Request 22 however, that it will seek to obtain only the name and address of the 23 subscriber associated with the IP address from Cox Communications. 24 25 The Court finds Plaintiff has shown good cause to subpoena records from Cox Communications identifying the subscriber assigned to the subject 26 7 16cv0979 LAB (MDD) 1 IP address at the identified times. The subpoena must be limited to 2 documents identifying the subscriber’s name and address during the 3 relevant period. That information should be sufficient for Plaintiff to be 4 able to identify and serve Defendant. If Plaintiff is unable to identify and 5 serve Defendant after receiving a response to the subpoena, Plaintiff may 6 seek leave from the Court to pursue additional discovery. 7 G. 8 Finally, the Court must consider the requirements of the Cable 9 Privacy Act, 47 U.S.C. § 551. The Act generally prohibits cable operators 10 from disclosing personally identifiable information regarding subscribers 11 without the prior written or electronic consent of the subscriber. 47 U.S.C. 12 § 551(c)(1). A cable operator, however, may disclose such information if the 13 disclosure is made pursuant to a court order and the cable operator provides 14 the subscriber with notice of the order. 47 U.S.C. § 551(c)(2)(B). The ISP 15 that Plaintiff intends to subpoena in this case is a cable operator within the 16 meaning of the Act. IV. CONCLUSION 17 18 19 20 Cable Privacy Act For the reasons set forth above, Plaintiff’s Ex Parte Motion for Expedited Discovery is GRANTED, as follows: 1. Plaintiff may serve a subpoena, pursuant to and compliant with 21 the procedures of Fed. R. Civ. P. 45, on Cox Communications seeking only 22 the name and address of the subscriber assigned to the subject IP address 23 for the relevant time period. 24 2. The subpoena must provide at least forty-five (45) calendar days 25 from service to production. Cox Communications may seek to quash or 26 modify the subpoena as provided at Rule 45(d)(3). 8 16cv0979 LAB (MDD) 1 3. Cox Communications shall notify its subscriber, no later than 2 fourteen (14) calendar days after service of the subpoena, that his or her 3 identity has been subpoenaed by Plaintiff. The subscriber whose identity 4 has been subpoenaed shall then have thirty (30) calendar days from the 5 date of the notice to seek a protective order, to move to quash or modify the 6 subpoena or file any other responsive pleading. 7 4. Plaintiff shall serve a copy of this Order with the subpoena upon 8 Cox Communications. Cox Communications, in turn, must provide a copy of 9 this Order along with the required notice to the subscriber whose identity is 10 sought pursuant to this Order. 11 5. 12 IT IS SO ORDERED. 13 No other discovery is authorized at this time. Dated: May 4, 2016 14 15 16 17 18 19 20 21 22 23 24 25 26 9 16cv0979 LAB (MDD)

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