Dallas Buyers Club, LLC v. Doe-

Filing 7

ORDER granting Plaintiff's 5 Ex Parte Motion to Expedite Discovery. Plaintiff may serve a subpoena on Dft's ISP, Cox Communications, seeking the name and address only of the subscriber assigned to Dft's IP address during the time period of the alleged infringing activity described in Exhibit 1 to the Complaint. No other discovery is authorized at this time. Signed by Magistrate Judge David H. Bartick on 5/4/2016. (jah)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Case No.: 16cv980-BAS (DHB) DALLAS BUYERS CLUB, LLC, a Texas limited liability company, Plaintiff, v. ORDER GRANTING PLAINTIFF'S EX PARTE MOTION TO EXPEDITE DISCOVERY DOE-, [ECF No. 5] 13 14 15 Defendant. 16 17 18 On April 22, 2016, Plaintiff Dallas Buyers Club, LLC filed an Ex Parte Motion for 19 Expedited Discovery. (ECF No. 5.) Because Defendant has not been named or served, no 20 opposition or reply briefs have been filed. For the reasons discussed below, Plaintiff’s 21 Motion is GRANTED. 22 I. PROCEDURAL HISTORY 23 On April 22, 2016, Plaintiff filed a Complaint against Doe, a subscriber assigned IP 24 address (“Defendant”). (ECF No. 1.) Plaintiff alleges a single cause of 25 action for direct copyright infringement. Plaintiff asserts that it is the registered copyright 26 holder of the motion picture Dallas Buyers Club. (See ECF No. 1 at ¶¶ 4, 6.) Plaintiff 27 contends Defendant used the BitTorrent file distribution network to copy and distribute 28 Plaintiff’s copyrighted work through the Internet without Plaintiff’s permission. (ECF No. 1 16cv980-BAS (DHB) 1 1 at ¶ 35.) 2 On April 22, 2016, Plaintiff filed the instant Motion in which Plaintiff seeks leave 3 to take early discovery to learn the identity of Defendant from his or her Internet Service 4 Provider (“ISP”), Cox Communications. Specifically, Plaintiff seeks an order permitting 5 it to serve a Rule 45 subpoena on Cox Communications for the identity of the account 6 holder assigned to Defendant’s IP address, and for further reasonable discovery as may be 7 needed. 8 II. LEGAL STANDARDS 9 Generally, discovery is not permitted without a court order before the parties have 10 conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). 11 “[H]owever, in rare cases, courts have made exceptions, permitting limited discovery to 12 ensue after filing of the complaint to permit the plaintiff to learn the identifying facts 13 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 14 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 15 1980)). Requests for early or expedited discovery are granted upon a showing by the 16 moving party of good cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 17 273, 275-76 (N.D. Cal. 2002) (applying “the conventional standard of good cause in 18 evaluating Plaintiff’s request for expedited discovery”). 19 “The Ninth Circuit has held that when the defendants’ identities are unknown at the 20 time the complaint is filed, courts may grant plaintiffs leave to take early discovery to 21 determine the defendants’ identities ‘unless it is clear that discovery would not uncover the 22 identities, or that the complaint would be dismissed on other grounds.’” 808 Holdings, LLC 23 v. Collective of December 29, 2011 Sharing Hash, No. 12-cv-0186 MMA (RBB), 2012 24 WL 1648838, *3 (S.D. Cal. May 4, 2012) (quoting Gillespie, 629 F.2d at 642). “A district 25 court’s decision to grant discovery to determine jurisdictional facts is a matter of 26 discretion.” Columbia Ins., 185 F.R.D. at 578 (citing Wells Fargo & Co. v. Wells Fargo 27 Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977)). 28 /// 2 16cv980-BAS (DHB) 1 District courts apply a three-factor test when considering motions for early discovery 2 to identify Doe defendants. Id. at 578-80. First, “the plaintiff should identify the missing 3 party with sufficient specificity such that the Court can determine that defendant is a real 4 person or entity who could be sued in federal court.” Id. at 578. Second, the plaintiff 5 “should identify all previous steps taken to locate the elusive defendant” to ensure that the 6 plaintiff has made a good faith effort to identify and serve process on the defendant. Id. at 7 579. Third, the “plaintiff should establish to the Court’s satisfaction that plaintiff’s suit 8 against defendant could withstand a motion to dismiss.” Id. (citing Gillespie, 629 F.2d at 9 642). Further “the plaintiff should file a request for discovery with the Court, along with 10 a statement of reasons justifying the specific discovery requested as well as identification 11 of a limited number of persons or entities on whom discovery process might be served and 12 for which there is a reasonable likelihood that the discovery process will lead to identifying 13 information about defendant that would make service of process possible.” Id. at 580. 14 15 III. ANALYSIS A. Identification of Missing Party with Sufficient Specificity 16 First, Plaintiff must identify Defendant with enough specificity to enable the Court 17 to determine that Defendant is a real person or entity who would be subject to the 18 jurisdiction of this Court. Columbia Ins., 185 F.R.D. at 578. This Court has previously 19 determined that “a plaintiff identifies Doe defendants with sufficient specificity by 20 providing the unique IP addresses assigned to an individual defendant on the day of the 21 allegedly infringing conduct, and by using ‘geolocation technology’ to trace the IP 22 addresses to a physical point of origin.” 808 Holdings, 2012 WL 1648838, at *4 (quoting 23 OpenMind Solutions, Inc. v. Does 1-39, No. C-11-3311 MEJ, 2011 WL 4715200 (N.D. 24 Cal. Oct. 7, 2011); Pink Lotus Entm’t, LLC v. Does 1-46, No. C-11-02263 HRL, 2011 WL 25 2470986 (N.D. Cal. June 21, 2011)). 26 Here, Plaintiff has filed a chart that lists the unique IP address corresponding to 27 Defendant, and the dates and times of the purportedly infringing activity, as well as the city 28 in which the IP address is located. (ECF No. 1-2.) Consequently, Plaintiff has identified 3 16cv980-BAS (DHB) 1 Defendant with sufficient specificity. See OpenMind Solutions, 2011 WL 4715200, at *2 2 (concluding that plaintiff satisfied the first factor by identifying the defendants’ IP 3 addresses and by tracing the IP addresses to a point of origin within the State of California); 4 Pink Lotus Entm’t, 2011 WL 2470986, at *3 (same). In addition, Plaintiff has presented 5 evidence that the identified IP address is physically located in this district. (See ECF Nos. 6 1-2; and 5-3 at ¶8, 9.) 7 B. Previous Attempts to Locate Defendant 8 Next, Plaintiff must describe all prior steps it has taken to identify the defendant in 9 a good faith effort to locate and serve him or her. See Columbia Ins., 185 F.R.D. at 579. 10 Plaintiff states it has been able to identify much about Defendant, including which ISP 11 provider he or she uses, where he or she is generally located, and what software he or she 12 used to commit the alleged acts of infringement. (ECF No. 5-2 at 5.) However, Plaintiff 13 generally maintains that there are no other practical measures available to determine the 14 actual identity of Defendant. Thus, Plaintiff appears to have obtained and investigated the 15 available data pertaining to the alleged infringement in a good faith effort to locate 16 Defendant. See OpenMind Solutions, 2011 WL 4715200, at *3; MCGIP, LLC v. Does 1- 17 149, 2011 WL 3607666, *2 (N.D. Cal. Aug. 3, 2011); Pink Lotus Entm’t, 2011 WL 18 2470986, at *3. 19 C. Ability to Withstand a Motion to Dismiss 20 “Finally, to be entitled to early discovery, [Plaintiff] must demonstrate that its 21 Complaint can withstand a motion to dismiss.” 808 Holdings, 2012 WL 1648838 at *5 22 (citing Columbia Ins., 185 F.R.D. at 579). 23 1. 24 In order to establish copyright infringement, a plaintiff must show: (1) ownership of 25 a valid copyright, and (2) that the defendant violated the copyright owner’s exclusive rights 26 under the Copyright Act. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004); 17 27 U.S.C. § 501(a). Here, Plaintiff alleges it owns the registered copyright of the work that 28 Defendant allegedly copied and distributed using the BitTorrent file distribution network. Ability to State a Claim Upon Which Relief Can Be Granted 4 16cv980-BAS (DHB) 1 (ECF No. 1 at ¶¶ 4, 6.) Plaintiff also alleges it did not permit or consent to Defendant’s 2 copying or distribution of its work. (Id. at ¶ 35.) It appears Plaintiff has stated a prima 3 facie claim for copyright infringement that can withstand a motion to dismiss. 4 2. 5 Plaintiff bears the burden of establishing jurisdictional facts. See Columbia Ins. Co., 6 185 F.R.D. at 578. Plaintiff’s Complaint indicates that Defendant is located in this judicial 7 district. (See ECF No. 1-2 (showing the IP address associated with Defendant is located in 8 San Diego, California). The Complaint also alleges that Defendant’s acts of copyright 9 infringement occurred using an IP address traced to a physical location in this district, and 10 Personal Jurisdiction that Defendant is believed to reside in California. (ECF No. 1. at ¶ 3, 14.) 11 Therefore, at this early juncture, it appears Plaintiff has alleged sufficient facts to 12 show it can likely withstand a motion to dismiss for lack of personal jurisdiction because 13 Defendant’s IP address was traced to a location in this district. See 808 Holdings, 2012 14 WL 1648838 at *6-7. 15 2. 16 “The venue of suits for infringement of copyright is not determined by the general 17 provision governing suits in the federal district courts, rather by the venue provision of the 18 Copyright Act.” Goldberg v. Cameron, 482 F. Supp. 2d 1136, 1143 (N.D. Cal. 2007) 19 (citing 28 U.S.C. § 1400(a); Lumiere v. Mae Edna Wilder, Inc., 261 U.S. 174, 176 (1923)). 20 “In copyright infringement actions, venue is proper ‘in the district in which the defendant 21 or his agent resides or may be found.’” Brayton Purcell LLP v. Recordon & Recordon, 22 606 F.3d 1124, 1128 (9th Cir. 2010) (quoting 28 U.S.C. § 1400(a)). “The Ninth Circuit 23 interprets this statutory provision to allow venue ‘in any judicial district in which the 24 defendant would be amendable to personal jurisdiction if the district were a separate 25 state.’” Id. Venue 26 Plaintiff alleges venue is proper because although Defendant’s true identity is 27 unknown, Defendant is believed to reside (and therefore can be found in this district), and 28 a substantial part of the infringing acts complained of occurred in this district. (ECF No. 5 16cv980-BAS (DHB) 1 1 at ¶ 3, 13.) Defendant appears to have an IP address in this district. (See ECF No. 1-2.) 2 Plaintiff’s counsel has submitted a declaration explaining that counsel used geolocation 3 trackers to trace the IP address to San Diego County. (ECF No. 5-3 at ¶8, 9.) Accordingly, 4 Plaintiff’s Complaint can likely survive a motion to dismiss. 5 D. Specific Discovery Request 6 Here, Plaintiff requests leave to serve a Rule 45 subpoena on Cox Communications. 7 Plaintiff indicates the subpoena will be limited to requesting the name and address of the 8 subscriber associated with Defendant’s IP address. The Court finds this limitation is 9 appropriate. The Court further finds that the subpoena should be limited to 10 requesting information about the subscriber during the relevant time period, 11 which is that identified in Exhibit 1 to the Complaint. Therefore, the Court 12 determines Plaintiff has shown good cause to subpoena records from Cox Communications 13 for the identity of the subscriber assigned to Defendant’s IP address at the identified times. 14 However, once Plaintiff is able to identify and serve Defendant, the need for early 15 discovery ceases. Therefore, Plaintiff’s request for leave to conduct any further discovery 16 is denied. 17 E. Cable Privacy Act 18 Finally, the Court must consider the requirements of the Cable Privacy Act, 47 19 U.S.C. § 551. The Act generally prohibits cable operators from disclosing personally 20 identifiable information regarding subscribers without the prior written or electronic 21 consent of the subscriber. 47 U.S.C. § 551(c)(1). A cable operator, however, may disclose 22 such information if the disclosure is made pursuant to a court order and the cable operator 23 provides the subscriber with notice of the order. 47 U.S.C. § 551(c)(2)(B). The ISP that 24 Plaintiff intends to subpoena in this case is a cable operator within the meaning of the Act. 25 IV. CONCLUSION 26 27 28 For the reasons set forth above, Plaintiff’s Ex Parte Motion for Expedited Discovery is GRANTED, as follows: 1. Plaintiff may serve a subpoena on Defendant’s ISP, Cox Communications, 6 16cv980-BAS (DHB) 1 seeking the name and address only of the subscriber assigned to Defendant’s IP address 2 during the time period of the alleged infringing activity that is described in Exhibit 1 to the 3 Complaint. 4 2. The subpoena must provide a minimum of forty-five (45) days notice before 5 any production and shall be limited to one category of documents identifying the particular 6 subscriber listed on Exhibit 1 to Plaintiff’s Complaint. (ECF No. 1-2.) The requested 7 information should be limited to the name and address of the subscriber during the time 8 period of the alleged infringing activity. Cox Communications may seek a protective order 9 if it determines there is a legitimate basis for doing so. 10 3. Cox Communications shall have fourteen (14) calendar days after service of 11 the subpoena to notify the subscriber that his or her identity has been subpoenaed by 12 Plaintiff. The subscriber whose identity has been subpoenaed shall then have thirty (30) 13 calendar days from the date of the notice to seek a protective order or file any other 14 responsive pleading. 15 4. Plaintiff shall serve a copy of this Order with any subpoena obtained and 16 served pursuant to this Order to Cox Communications. Cox Communications, in turn, must 17 provide a copy of this Order along with the required notice to the subscriber whose identity 18 is sought pursuant to this Order. 19 5. 20 IT IS SO ORDERED. 21 No other discovery is authorized at this time. Dated: May 4, 2016 22 23 24 25 26 27 28 7 16cv980-BAS (DHB)

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