Gottesman v. Santana et al

Filing 32

ORDER denying 5 Plaintiff's Ex Parte Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by Magistrate Judge Jill L. Burkhardt on 1/13/2017. (kcm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ERIC GOTTESMAN,

Case No.: 16-cv-2902 JLS (JLB)
Plaintiff,

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

v.
CARLOS SANTANA et al.,

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Defendants.

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[ECF No. 5]

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Presently before the Court is Plaintiff’s Ex Parte Motion for Leave to Serve a Third

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Party Subpoena Prior to a Rule 26(f) Conference. (ECF No. 5.) For the reasons set forth

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below, Plaintiff’s Motion is DENIED.

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I. BACKGROUND

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Plaintiff is the owner of the copyrights to a number of works of visual art. (ECF No.

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5-1 at 3; ECF No. 1 at 6–8.) Plaintiff asserts that “[n]umerous infringements of [his]

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copyrighted works of art appear at the domain names: ‘beltoutlet.com’ and

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‘rockabilia.com.’” (ECF No. 5-1 at 3.)

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On November 29, 2016, Plaintiff filed a Complaint against several defendants,

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including “DOE #1 dba www.beltoutlet.com” and “DOE #4 c/o Domains By Proxy dba

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www.rockabilia.com.” (ECF No. 1.) The Complaint alleges direct copyright infringement
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against Defendants DOE #1 and DOE #4. (See id. at 26–32; 36–76.) Plaintiff asserts in

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his Complaint that Defendants DOE #1 and DOE #4 “recopied, redistributed or

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republished” Plaintiff’s copyrighted works without Plaintiff’s consent and “knew or should

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have known of the infringements on the domains, websites, and products sold through their

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respective online operations over which they exercised control.” (See id. at 26–32.)

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Plaintiff asserts that “[b]ecause the owners, operators, supervisors, and managers of

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[www.beltoutlet.com] and [www.rockabilia.com] used the Internet to commit these

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infringements, and in registering these domain names selected privacy settings concealing

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their identities and contact information as the registrants, administrators, and technical

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operators of same, Plaintiff has no ability to identify the actual defendants by name.” (ECF

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No. 5-1 at 3.) Therefore, Plaintiff “seeks leave of Court to serve a Rule 45 subpoena on

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the ISP for each of the above domain names.” (Id. at 4.)

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II. LEGAL STANDARDS

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Generally, discovery is not permitted absent 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.3d 637, 642 (9th Cir.

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1980)). Requests to conduct discovery prior to a Rule 26(f) conference are granted upon

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a showing of good cause by the moving party, which may be found “where the need for

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expedited discovery, in consideration of the administration of justice, outweighs the

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prejudice to the responding party.” Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D.

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273, 275–76 (N.D. Cal. 2002). “A district court’s decision to grant discovery to determine

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jurisdictional facts is a matter of discretion.” Columbia Ins., 185 F.R.D. at 578 (citing

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

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District courts in the Ninth Circuit apply a three-factor test for determining whether

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good cause exists to allow for expedited discovery to identify Doe defendants. See
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Columbia Ins. Co., 185 F.R.D. 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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(citing Gillespie, 629 F.2d at 642).

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III. DISCUSSION

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For the Court to grant Plaintiff’s Motion, Plaintiff must first identify Defendant with

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enough specificity to enable the Court to determine Defendant is a real person or entity

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who would be subject to the jurisdiction of this Court. See Columbia Ins. Co., 185 F.R.D.

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at 578. Plaintiff has not met this burden. Plaintiff’s Motion provides no information that

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supports that Defendants DOE #1 and DOE #4 would be subject to this Court’s jurisdiction.

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In fact, the information contained in Plaintiff’s Motion supports that this Court likely does

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not have jurisdiction over these Defendants. Exhibit 1 to Defendant’s Motion states that

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the IP address assigned to DOE #1 (www.beltoutlet.com) is located in Ottawa, Canada

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(ECF No. 5-2), and Exhibit 2 to Defendant’s Motion states that the IP address assigned to

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DOE #4 (www.rockabilia.com) is located in Ontario, Canada (ECF No. 5-3). Accordingly,

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Plaintiff’s Motion contains no evidentiary support showing that Defendants DOE #1 and

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DOE #4 are subject to this Court’s jurisdiction, and on this basis alone, the instant Motion

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must fail.

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///
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In addition, the Court is not persuaded that Plaintiff has taken all reasonable steps to

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identify and serve process on Defendants DOE #1 and DOE #4. Unlike in the cases that

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Plaintiff cites to in his Motion, Plaintiff has at his disposal more than just an IP address to

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attempt to locate the Defendants. He has their domain names. While Plaintiff argues that

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“[u]nlike phone numbers or license plates, there are no publicly-available databases or

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‘yellow pages’ that can identify an individual by a [sic] IP address or its domain name”

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(ECF No. 5-1 at 7), the Court disagrees. Available to Plaintiff are online databases

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maintained by the Better Business Bureau and the Secretaries of State for the states in

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which Defendants DOE #1 and DOE #4 are registered to do business. Such databases can

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provide Plaintiff with the information necessary to serve process on Defendants DOE #1

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and DOE #4.

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IV. CONCLUSION

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For the reason set forth above, Plaintiff has not shown that good cause exists to allow

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for expedited discovery to identify Defendants DOE #1 and DOE #4. Accordingly,

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Plaintiff’s Ex Parte Motion for Leave to Serve a Third Party Subpoena Prior to Rule 26(f)

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Conference (ECF No. 5) is DENIED.

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IT IS SO ORDERED.
Dated: January 13, 2017

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16-cv-2902 JLS (JLB)