Malibu Media, LLC v. John Doe subscriber assigned IP address 76.93.177.163

Filing 6

ORDER Granting 4 Plaintiff's Ex Parte Motion for Leave to Serve a Third Party Subpoena. Signed by Magistrate Judge Jan M. Adler on 10/24/16. (dlg)

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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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Plaintiff,
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v.
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JOHN DOE subscriber assigned IP )
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address 76.93.177.163,
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Defendant.
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Case No. 16CV1916-GPC(JMA)
ORDER GRANTING
PLAINTIFF’S EX PARTE
MOTION FOR LEAVE TO SERVE
A THIRD PARTY SUBPOENA
[ECF No. 4]

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Before the Court is an Ex Parte Motion for Leave to Serve a Third

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Party Subpoena Prior to a Rule 26(f) Conference filed by Plaintiff Malibu

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Media, LLC (“Plaintiff”). (ECF No. 4.) For the reasons discussed below,

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Plaintiff’s application is GRANTED.

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I.

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PROCEDURAL HISTORY
On July 28, 2016, Plaintiff filed a Complaint against Defendant John

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Doe subscriber assigned IP address 76.93.177.163, (“Defendant”).

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(Compl., ECF No. 1). Plaintiff purports to be the registered owner of twelve

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(12) copyrighted movies which were allegedly illegally distributed by

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Defendant’s IP address. Compl., ¶¶ 2-3 & Exs. A-B. The Complaint

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alleges copyright infringement of each of its copyrighted movies. Id. at ¶¶

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30-35. Plaintiff alleges that Defendant, using IP address 76.93.177.163,

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infringed Plaintiff’s copyrights by copying and distributing Plaintiff’s motion

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pictures through the BitTorrent file distribution network without Plaintiff’s

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permission or consent. Id. Plaintiff alleges Defendant engaged in

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infringement activity between February 9 and June 28, 2016. Id., Exs. A-B.

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Plaintiff seeks leave of court to serve a subpoena pursuant to Fed. R.

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Civ. P. 45 on Defendant’s internet service provider (“ISP”), Time Warner

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Cable, in order to identify the subscriber and account holder assigned to

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the IP address used by Defendant.

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II.

LEGAL STANDARDS
Generally, discovery is not permitted without a court order before the

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parties have conferred pursuant to Federal Rule of Civil Procedure 26(f).

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Fed. R. Civ. P. 26(d)(1). Yet, “in rare cases, courts have made exceptions,

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permitting limited discovery to ensue after filing of the complaint to permit

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the plaintiff to learn the identifying facts necessary to permit service on the

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defendant.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577

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

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1980)). Courts grant these requests when the moving party shows good

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cause for the early discovery. Semitool, Inc. v. Tokyo Elec. Am., Inc., 208

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F.R.D. 273, 275-76 (N.D. Cal. 2002).

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

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unknown at the time the complaint is filed, courts may grant plaintiffs leave

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to take early discovery to determine the defendants’ identities “unless it is

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clear that discovery would not uncover the identities, or that the complaint

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would be dismissed on other grounds.” Gillespie, 629 F.2d at 642. A

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district court’s decision to grant discovery to determine jurisdictional facts is

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a matter of discretion. Columbia Ins. Co., 185 F.R.D. at 578.

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District courts apply a three-factor test when considering motions for
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early discovery to identify certain defendants. Id. at 578-80. First, the

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plaintiff should “identify the missing party with sufficient specificity such that

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the Court can determine that defendant is a real person or entity who could

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be sued in federal court.” Id. at 578. Second, the movant must describe

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“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

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defendant. Id. at 579. Third, the plaintiff should establish that its suit

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against the defendant could withstand a motion to dismiss. Id. “[T]o

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prevent abuse of this extraordinary application of the discovery process

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and to ensure that the plaintiff has standing,” the plaintiff must show that

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some act giving rise to liability actually occurred and that the discovery is

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aimed at identifying the person who actually committed the act. Id. at 579-

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80.

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III.

DISCUSSION

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A.

Identification of Missing Parties with Sufficient Specificity

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First, Plaintiff must identify Defendant with enough specificity to

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enable the Court to determine that the defendant is a real person or entity

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who would be subject to the jurisdiction of this Court. Id. at 578. “[A]

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plaintiff identifies Doe defendants with sufficient specificity by providing the

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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

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the IP address to a physical point of origin. 808 Holdings, LLC v.

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Collective of Dec. 29, 2011 Sharing Hash, 2012 WL 1648838, at *4 (S.D.

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Cal. May 4, 2012). Here, Plaintiff identified the IP address of the computer

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used by Defendant, and used geolocation technology to trace the IP

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address 76.93.177.163 to San Diego, California. Compl., ¶ 5 & Exs. A-B.

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Consequently, Plaintiff has identified Defendant with sufficient specificity

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and has satisfied the first factor of the test for permitting early discovery.
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B.

Previous Attempts to Locate Defendant

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Next, Plaintiff must identify all previous steps taken to identify the

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Doe Defendant in a good faith effort to locate and serve it. See Columbia

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Ins. Co., 185 F.R.D. at 579. According to Plaintiff, “Plaintiff knows

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Defendant only by his or her IP address and has no way to ascertain

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Defendant’s identity other than by subpoenaing the ISP.” Ex Parte Motion

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at 9. “This is the case because although publicly available data allowed

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Plaintiff to identify the specific ISP used by Defendant, as well as the city

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associated with the IP address, it does not permit Plaintiff to ascertain the

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identity of the subscriber or actual defendant. Accordingly, Plaintiff

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appears to have investigated and obtained the data pertaining to the

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alleged infringement in a good faith effort to locate Defendant.” Id., at 15-

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16, quoting Cobbler Nevada LLC v. Doe 68.8.213.203, No. 15-CV-2729-

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GPC(JMA), 2015 WL 9026554, at *2 (S.D. Cal. Dec. 15, 2015).

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C.

Ability to Withstand a Motion to Dismiss

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Lastly, to be entitled to early discovery, Plaintiff must demonstrate

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that the Complaint can withstand a motion to dismiss. See Columbia Ins.

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Co., 185 F.R.D. at 579.

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1.

Granted

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Ability to State a Claim Upon Which Relief Can Be

Plaintiff alleges that it is the owner of the copyright for the twelve (12)

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movies at issue, and that Defendant infringed Plaintiff’s copyrights by

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copying and distributing Plaintiff’s movies through a public BitTorrent

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network without Plaintiff’s permission or consent. Compl., ¶¶ 30-35. The

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Court finds Plaintiff has alleged a prima facie case of copyright

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infringement against Defendant.

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2.

Personal Jurisdiction

Plaintiff bears the burden of establishing jurisdictional facts. See
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Columbia Ins. Co., 185 F.R.D. at 578. Plaintiff, using geolocation

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technology, traced Defendant’s IP address to a point of origin within this

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District. Compl., ¶ 5. Accordingly, Plaintiff has alleged sufficient facts to

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

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jurisdiction. See, e.g., Pink Lotus Entm’t, 2011 U.S. Dist. LEXIS 65614, at

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*6-7.
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Venue

Plaintiff alleges that venue in this District is proper as to Defendant
under 28 U.S.C. §§ 1391(b) and 1400(a). Compl., ¶ 7. “The venue of suits

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for infringement of copyright is not determined by the general provision

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

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of the Copyright Act.” Goldberg v. Cameron, 482 F. Supp. 2d 1136, 1143

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(N.D. Cal. 2007). Civil actions for copyright infringement “may be instituted

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in the district in which defendant or his agent resides or may be found.” 28

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U.S.C.A. § 1400(1) (West 2006). An individual “resides” for venue

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purposes in the district of his domicile. James Wm. Moore, et al., Moore’s

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Federal Practice, § 110.39[2], at 110-76 (3d ed. 2011). A defendant is

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“found” for venue purposes where he is subject to personal jurisdiction. Id.

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(footnote omitted); see also Brayton Purcell LLP v. Recordon & Recordon,

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606 F.3d 1124, 1126 (9th Cir. 2010) (“This circuit interprets [28 U.S.C. §

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1400(a)] to allow venue in any judicial district where, if treated as a

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separate state, the defendant would be subject to personal jurisdiction.”).

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Plaintiff alleges venue is proper because Defendant allegedly committed

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the infringing acts complained of, and resides, in this District. Compl., ¶ 7.

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Thus, venue appears to be proper.

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

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IV.

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For the reasons set forth above, it is hereby ordered that Plaintiff’s

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CONCLUSION

Application is GRANTED as follows:
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Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45

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upon Time Warner Cable for the sole purpose of obtaining the name and

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address only of Defendant John Doe subscriber assigned IP address

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76.93.177.163. Time Warner Cable shall have fourteen (14) calendar days

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after service of the subpoena upon it to notify its subscriber that his/her

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identity has been subpoenaed by Plaintiff. The subscriber whose identity

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has been subpoenaed shall have thirty (30) calendar days from the date of

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such notice to challenge the disclosure to Plaintiff by filing an appropriate

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pleading with this Court contesting the subpoena. If Time Warner Cable

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intends to move to quash the subpoena, it must do so prior to the return

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date of the subpoena. The return date of the subpoena must allow for at

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least forty-five (45) days from service to production. If a motion to quash or

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other customer challenge is brought, Time Warner Cable must preserve

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the information sought by Plaintiff pending resolution of the motion or

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challenge.
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The subpoena shall not seek Defendant’s telephone number,

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email address, or Media Access Control (MAC) address, as this

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information is not necessary for Plaintiff to identify and serve Defendant.
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Plaintiff may use the information disclosed pursuant to the

subpoena only in pursuing this litigation.
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Plaintiff shall serve a copy of this order with any subpoena

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served upon Time Warner Cable pursuant to this Order. Time Warner

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Cable, in turn, must provide a copy of this Order along with the required

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notice to the subscriber whose identity is sought pursuant to this Order.

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//
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5.

No other discovery is authorized at this time.

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IT IS SO ORDERED.

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DATED: October 24, 2016

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Jan M. Adler
U.S. Magistrate Judge

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