Strike 3 Holdings, LLC v. Doe

Filing 5

ORDER denying 4 Ex Parte Motion to Expedite Discovery. Signed by Magistrate Judge Barbara Lynn Major on 2/23/2018. (anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 18cv231-BEN (BLM)

STRIKE 3 HOLDINGS, LLC,

ORDER DENYING EX PARTE MOTION
TO EXPEDITE DISCOVERY

Plaintiff,

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v.

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JOHN DOE subscriber assigned IP address
70.95.8.38,

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[ECF No. 4]

Defendant.

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Currently before the Court is Plaintiff’s February 13, 2018 “EX PARTE APPLICATION FOR

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LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE.”

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ECF No. 4. Because the Defendant has not been identified, no opposition or reply briefs have

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been filed. Having reviewed Plaintiff’s motion and all supporting documents, the Court DENIES

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the motion for the reasons set forth below.

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I.

BACKGROUND

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Plaintiff alleges that it “is the owner of original, award winning motion pictures featured

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on its subscription-based adult website.” ECF No. 4-1 at 6. On January 31, 2018, Plaintiff filed

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a complaint against John Doe 70.95.8.38 alleging copyright infringement. ECF No. 1 (“Compl.”).

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Plaintiff alleges that Defendant has illegally infringed by downloading and distributing thirty of

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its copyrighted movies over the BitTorrent File Distribution Network for an extended period of
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time. Id. at 2, 4. Plaintiff describes the BitTorrent network as a “system designed to quickly

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distribute large files over the Internet.” Id. at 4. Plaintiff further alleges that Defendant, who

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“attempted to hide this theft by infringing Plaintiff’s content anonymously” can be identified by

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his or her Internet Service Provider (“ISP”), Spectrum (“Time Warner Cable”), through his or her

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IP address 70.95.8.38. Id. at 2.

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On February 13, 2018, Plaintiff filed the instant motion. ECF No. 4. Plaintiff seeks an

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order from the Court allowing it to serve a subpoena to Defendant’s ISP seeking Defendant’s

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true name and address pursuant to Federal Rule of Civil Procedure 45 so that Plaintiff may serve

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Defendant and prosecute the claims in its complaint. ECF No. 4-1 at 7.

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II.

LEGAL STANDARDS

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A party may not seek discovery from any source before the Rule 26(f) conference unless

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that

party

first

obtains

a

stipulation

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Fed. R. Civ. P. 26(d)(1). Courts in the Ninth Circuit apply the “good cause” standard in deciding

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whether to permit early discovery. Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D.

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273, 276 (N.D. Cal. 2002) (adopting the conventional standard of “good cause” in evaluating a

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request for expedited discovery). Good cause exists “where the need for expedited discovery,

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in consideration of the administration of justice, outweighs the prejudice to the responding

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party.” Id. Good cause for expedited discovery has been found in cases involving claims of

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infringement and unfair competition.

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frequently limited to allowing plaintiffs to identify Doe defendants. See UMG Recordings, Inc.

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v. Doe, 2008 WL 4104207, at *3 (N.D. Cal. Sept. 4, 2008) (granting leave to take expedited

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discovery for documents that would reveal the identity and contact information for each Doe

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defendant).

Id.

or

court

order

permitting

early

discovery.

In infringement cases, expedited discovery is

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

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cause exists to allow for expedited discovery to identify certain defendants. Columbia Ins. Co.

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v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). First, the plaintiff should “identify

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the missing party with sufficient specificity such that the Court can determine that the defendant

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is a real person or entity who could be sued in federal court.” Id. at 578. Second, the plaintiff
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must describe “all previous steps taken to locate the elusive defendant” to ensure that plaintiff

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has made a good faith effort to identify the defendant. Id. at 579. Third, plaintiff should

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establish that its lawsuit could withstand a motion to dismiss. Id.

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DISCUSSION

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For the Court to grant Plaintiff’s motion, Plaintiff must first identify the Doe defendant

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with sufficient specificity to enable the Court to determine that the Doe defendant is a real

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person subject to the Court’s jurisdiction. Id. at 578. “Some district courts in the Ninth Circuit

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have determined that a plaintiff identifies Doe defendants with sufficient specificity by providing

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the unique IP addresses assigned to an individual defendant on the day of the allegedly

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infringing conduct, and by using “geolocation technology” to trace the IP addresses to a physical

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point of origin.”

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E37917C8EEB4585E6421358FF32F29C D63C23C91, No. 12CV00186 MMA (RBB), 2012

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WL 12884688, at *4 (S.D. Cal. May 8, 2012); see e.g., OpenMind Sols., Inc. v. Does 1-39,

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No. C 11-3311 MEJ, 2011 WL 4715200, at *2 (N.D. Cal. Oct. 7, 2011) (finding plaintiff met its

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burden to identify the Doe defendants with sufficient specificity by identifying the unique IP

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addresses of individuals engaged in BitTorrent protocol and using geolocation technology to

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trace the IP addresses to a point of origin within the state of California); Pink Lotus Entm't, LLC

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v. Does 1-46, No. C-11-02263 HRL, 2011 WL 2470986, at *3 (N.D. Cal. June 21, 2011) (same).

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“Others have found that merely identifying the IP addresses assigned to the defendants on the

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day of the purported infringement is sufficient to satisfy the first factor.” 808 Holdings, LLC,

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2012 WL 12884688, at *4; see e.g., First Time Videos, LLC v. Does, No. C 11-01675 LB, 2011

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WL 1431619, at *2 (N.D. Cal. Apr. 14, 2011) (“First, First Time Videos has identified the Doe

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defendants with sufficient specificity by submitting a chart listing each of the defendants by the

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IP address assigned to them on the day it alleges the particular defendant engaged in the

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infringing conduct.”).

808 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing Hash

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Here, the Court finds Plaintiff has failed to identify Defendant with sufficient specificity to

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enable the Court to determine Defendant would be subject to its jurisdiction. Plaintiff alleges in

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its complaint that it used “IP address geolocation technology by Maxmind Inc. (‘Maxmind’), an
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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.” Compl.

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at 2; see also ECF No. 4-1 at 12. However, the allegation that Defendant’s IP address traced to

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a physical address in this District is not supported in any declaration filed in support of the

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instant Motion that would indicate, for example, who used the geolocation technology, when it

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was used, and how it is probative of the physical location of the subscriber. Accordingly, no

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evidentiary support was provided to show that Defendant’s IP address likely resolves to a

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physical address located in this District, and this Court cannot rely on Plaintiff’s unsupported

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assertions regarding the use and accuracy of the geolocation technology Plaintiff contends to

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have applied. Therefore, the instant Motion must fail because there is no reliable evidence to

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support the allegation that Defendant is subject to this Court’s jurisdiction.

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Columbia Ins. Co., 185 F.R.D. at 578.

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IV.

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See

CONCLUSION
For the reasons discussed above, the Court DENIES without prejudice Plaintiff’s ex

parte motion for leave to serve a third party subpoena prior to a Rule 26(f) conference.
IT IS SO ORDERED.

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Dated: 2/23/2018

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