Strike 3 Holdings, LLC v. John Doe

Filing 5

ORDER Granting 4 Ex Parte Motion for Leave to Serve a Third Party Subpoena. Signed by Magistrate Judge Karen S. Crawford on 1/4/18. (dlg)

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FSL

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JAN 04 2018

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CLERK US DIS1 RiCT COURT
SOUTHERN DISTRICT OF^ALIFORNIA

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STRIKE 3 HOLDINGS, LLC,

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Case No.: 3:17-cv-02316-GPC-KSC
Plaintiff,

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v.

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ORDER GRANTING EX PARTE
MOTION FOR LEAVE TO SERVE A
THIRD PARTY SUBPOENA PRIOR
TO A RULE 26(f) CONFERENCE

JOHN DOE subscriber assigned IP
address 76.167.199.146,

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Defendant.

[Doc. No. 4]

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Before the Court is plaintiff Strike 3 Holdings, LLC’s Ex Parte Motion for Leave to

19 Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. [Doc. No. 4.] Since
20 defendant, John Doe, subscriber assigned IP address 76.167.199.146, has not been named
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or served, no opposition or reply briefs have been filed. For the reasons discussed below,

22 the Court finds that plaintiffs motion must be GRANTED.
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BACKGROUND
Plaintiff has filed a Complaint against defendant alleging a single cause of action for

25 direct copyright infringement. [Doc. No. 1 at p. 2]. Plaintiff asserts that it is the registered
26 copyright holder of the copyrights set forth in the “Copyright Report” attached to the
27 Complaint. [Doc. No. 1, at p. 1; Doc. No. 1-3 (“Copyright Report”)]. Plaintiff contends
28 that defendant used the BitTorrent file distribution network to copy and distribute
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plaintiffs copyrighted work through the Internet without its permission. [Doc. No. 1 at p.

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DISCUSSION

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In the Ex Parte Motion, plaintiff seeks leave to serve limited, immediate discovery

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on defendant’s Internet Service Provider (“ISP”), Time Warner Cable (Spectrum), so that

6 plaintiff may learn defendant’s true identity. [Doc. No. 4-1 at p. 2]. Specifically, plaintiff
7 seeks an order permitting it to serve a Rule 45 subpoena on Time Warner Cable to obtain
8 the name and address of the account holder assigned to defendant’s Internet Protocol (“IP”)
9 address. [Id.\.
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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). In

12 the Ninth Circuit, exceptions to requests for early discoveiy have generally been
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disfavored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). However, “situations

14 arise, such as the present, where the identity of alleged defendants will not be known prior
15 to the filing of a complaint. In such circumstances, the plaintiff should be given an
16 opportunity through discovery to identify the unknown defendants, unless it is clear that
17 discovery would not uncover the identities, or that the complaint would be dismissed on
18 other grounds.” Id.
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“[S]ome limiting principals should apply to the determination of whether discovery

20 to uncover the identity of a defendant is warranted.” Columbia Ins. Co. v. seescandy.com,
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185 F.R.D. 573, 578 (N.D. Cal. 1999). Such early discovery should be limited “to ensure

22 that this unusual procedure will only be employed in cases where the plaintiff has in good
23 faith exhausted traditional avenues for identifying a civil defendant pre-service” and to
24 “prevent use of this method to harass or intimidate.” Id. First, “the plaintiff should identify
25 the missing party with sufficient specificity such that the Court can determine that
26 defendant is a real person or entity who could be sued in federal court.” Id. Second, the
27 plaintiff “should identify all previous steps taken to locate the elusive defendant” to ensure
28 that the plaintiff has made a good faith effort to identify and serve process on the defendant.
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Id. at 579. Third, the “plaintiff should establish to the Court’s satisfaction that plaintiffs

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suit against defendant could withstand a motion to dismiss.” Id. “Thus, plaintiff must

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make some showing that an act giving rise to civil liability actually occurred and that the

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discovery is aimed at revealing specific identifying features of the person or entity who

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committed that act.” Id. at 580.

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“Lastly, the plaintiff should file a request for discovery with the Court, along with a

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

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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.

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A.

Identification of the Doe Defendant with Sufficient Specificity

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“Some district courts in the Ninth Circuit have determined that a plaintiff identifies

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Doe defendants with sufficient specificity by providing the unique IP address assigned to

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an individual defendant on the day of the alleged infringing conduct, and by using

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‘geolocation technology’ to trace the IP address to a physical point of origin.” See, e.g.,

16 Malibu Media, LLC v. Does 1-19, 2012 WL 2152061, at *3 (S.D. Cal. June 12,2012), and
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cases cited therein.
In support of the Motion, plaintiff submitted several declarations in support of its

19 request for early discovery. Plaintiff submitted the Declaration of Tobias Fieser, who is
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employed by IPP International UG (“IPP”), a forensic investigation services corporation.

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[Doc. No. 4-2, Exh. B at p. 2]. According to Mr. Fieser, IPP monitors the BitTorrent file

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distribution network for the presence of plaintiffs copyrighted works. [Id.]. By reviewing

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IPP’s forensic activity logs, Mr. Fieser declares that IPP’s forensic servers connected to a

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device using defendant’s IP address and later “was documented distributing to IPP’s

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servers multiple pieces of Strike 3’s copyrighted movies.” [Id.].

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Second, the Declaration of John S. Pasquale, a senior project manager with 7 River

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Systems, LLC a cybersecurity firm specializing in, inter alia, the “the protection of secured

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information transmitted across networks,” who has had significant experience in solving

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computer crime cases, states in part as follows:

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10. Based on my experience in similar cases, Defendant’s ISP Time
Warner Cable is the only entity that can correlate the IP address to its
subscriber and identify Defendant as the person assigned the IP address
76.167.199.146 during the time of the alleged infringement. Indeed, a
subpoena to an ISP is consistently used by civil plaintiffs and law
enforcement to identify a subscriber of an IP address.

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[Doc. No. 4-2, Exh. C at p. 1].

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Third, plaintiffs Complaint also traces the alleged offending IP address to this

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district. Plaintiff states that it used “IP address geolocation technology by Maxmind Inc.,

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an industry-leading provider of IP address intelligence and online fraud detection tools, to

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determine that defendant’s IP address traced to a physical address in this District.” [Doc.

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No. 1 at p. 2]. See e.g, Criminal Prods., Inc. v. Doe, 2016 WL 6822186 (S.D. Cal. Nov.

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18, 2016) (“The Court concludes that based on the timing of the IP address tracing efforts

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employed by plaintiffs investigator, the documented success of the Maxmind geolocation

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services, and plaintiffs counsel’s efforts to independently verify the location information

17 provided by plaintiffs investigator, plaintiff has met its evidentiary burden [that
18 jurisdiction is proper]”).
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Based on this evidence and information, the Court finds that plaintiff has satisfied

20 the “sufficient specificity” threshold. Plaintiff has provided the Court with information
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about infringing activity tied to defendant’s IP address, specific date and times for such

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activity, and sufficient reassurance that it seeks to sue a real person subject to the Court’s

23 jurisdiction.
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B.

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Plaintiff has also made a showing that its Complaint against defendant could

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withstand a motion to dismiss. “Under the Copyright Act of 1976 (‘the Act’) a plaintiff

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may not ‘institute [ ]’ an action in federal district court ‘until registration of the copyright

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claim has been made in accordance with this title.’ 17 U.S.C. § 411(a).” Berry v. Penguin

Ability to Withstand a Motion to Dismiss

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Group (USA), Inc., 448 F.Supp.2d 1202,1202 (W.D. Wash. 2006). The Complaint alleges

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that plaintiff is the “registered owner” of the Copyrights in Suit. [Doc. No. 1, at p. 6;

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Copyright Report].

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Under Federal Rule of Civil Procedure 12(b), a case can be dismissed for lack of

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subject matter jurisdiction or for failure to state a claim upon which relief can be granted.

6 Fed.R.Civ.P. 12(b)(1), 12(b)(6). As applied herein, the Complaint correctly alleges subject
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matter jurisdiction pursuant to Title 28, United Code, Sections 1331 (federal question) and

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1338 (copyrights).

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In order to state a viable claim for copyright infringement, a plaintiff must allege:

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(1) ownership of a valid copyright, and (2) a violation by the defendant of the copyright

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owner’s exclusive rights under the Copyright Act. Ellison v. Robertson, 357 F.3d 1072,

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1076 (9th Cir. 2004); 17 U.S.C. § 501(a). Here, the Complaint alleges that plaintiff is the

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owner of the Copyrights-in-Suit and that defendant’s IP address copied and distributed

14 plaintiffs copyrighted materials using the BitTorrent file distribution network without
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plaintiffs permission or consent. [Doc. No. 1 at p. 5-6]. Thus, plaintiff has alleged facts

16 that could withstand a motion to dismiss for failure to state a claim.
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Under Federal Rule of Civil Procedure 12(b), a case can be dismissed for lack of

18 personal jurisdiction over a defendant or for improper venue. Fed.R.Civ.P. 12(b)(2)&(3).
19 To avoid a defendant’s motion to dismiss under Federal Rule 12(b)(2) for lack of personal
20 jurisdiction, a plaintiff need only make a prima facie showing ofjurisdiction by presenting

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facts that, if true, would support a finding of personal jurisdiction over the defendant.

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Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). Personal jurisdiction can be

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established over a person who resides in the forum state. Brayton Purcell LLP v. Recordon

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& Recordon, 361 F.Supp.2d 1135, 1138 (N.D. Cal. 2005). In copyright infringement

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actions, venue is proper “in the district in which the defendant... resides or may be found.”

26 28 U.S.C. § 1400(a).
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In the Complaint, plaintiff asserts that this Court has jurisdiction over the Doe

28 defendant because the alleged acts of infringement were traced to an IP address that is
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located in this State and this District. [Doc. No. 1, at p. 2]. It is further alleged that venue

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is proper in this District because the alleged acts of infringement occurred in this District

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and the defendant resides or may be found here. [Id.]. Therefore, plaintiff has stated facts

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that are likely to withstand a motion to dismiss for lack of jurisdiction or improper venue.

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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). Therefore, the

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information plaintiff seeks pursuant to a subpoena falls within an exception to the

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prohibition on disclosure within the Act.

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CONCLUSION
For the reasons set forth above, plaintiffs Ex Parte Motion for Leave to Serve a

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Third Party Subpoena is GRANTED, as follows:
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Plaintiff may serve a subpoena on defendant’s ISP, Time Warner Cable

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(Spectrum), seeking the name and address only of the subscriber assigned to the IP address

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identified in the Complaint for the time periods of the alleged infringing activity outlined

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in Attachments 1 and 2 to plaintiffs Complaint.
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The subpoena must provide a minimum of forty-five (451 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 identified in Exhibits A-D attached to plaintiffs Motion.

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information shall be limited to the name and address of the subscriber during the time

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period of the alleged infringing activity referenced in Doc. No. 1-2, attached to the

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Complaint as Exhibit A. Time Warner Cable (Spectrum) may seek a protective order if it

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determines there is a legitimate basis for doing so.

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III

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The requested

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3.

Time Warner Cable (Spectrum) shall have fourteen (14) calendar days after

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service of the subpoena to notify the subscriber that his or her identity has been subpoenaed

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by plaintiff.

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thirty (30) calendar days from the date of the notice to seek a protective order or file any

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other responsive pleading.

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The subscriber whose identity has been subpoenaed shall then have

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 (Spectrum). Time Warner Cable

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(Spectrum), in turn, must provide a copy of this Order along with the required notice to the

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subscriber whose identity is sought pursuant to this Order. No other discovery is authorized

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at this time.
IT IS SO ORDERED.
Dated: January

, 2018

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Hon. Karen S. Crawford
United States Magistrate Judge

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