STRIKE 3 HOLDINGS, LLC v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 173.54.29.135

Filing 11

LETTER OPINION AND ORDER denying 7 Defendant's Motion to Quash and for a Protective Order. Signed by Magistrate Judge Michael A. Hammer on 1/7/2025. (dam)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Chambers of

Martin Luther King Federal Building
& U.S. Courthouse
50 Walnut Street
Newark, NJ 07101
[phone]

Michael A. Hammer

United States Magistrate Judge

January 7, 2025
To: All counsel of record
LETTER OPINION AND ORDER
RE:

Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP address
173.54.29.135
Civil Action No. 24-9433 (BRM) (MAH)

Dear Counsel:
This Letter Opinion and Order will address Defendant John Doe Subscriber Assigned
Internet Protocol Address 173.54.29.135’s motion to quash and for a protective order.
Def.’s Mot. to Quash, Oct. 30, 2024, D.E. 7.

See

For the reasons set forth below, Defendant’s

motion is denied.
I.

BACKGROUND

Plaintiff Strike 3 Holdings, LLC (“Strike 3”) is a Delaware limited liability company
that owns the rights to various adult films. See Compl., Sept. 25, 2024, D.E. 1, ¶ 2.

Plaintiff

alleges that Defendant pirated twenty-four of its films through a peer-to-peer file sharing
network using Internet Protocol (“IP”) address 173.54.29.135, in violation of the Copyright Act,
17 U.S.C § 101, et seq. See id. ¶¶ 4-5, 12, 28-46.

Strike 3 asserts “a major problem with

Internet piracy,” as its films are often the target of copyright infringers.

Id. ¶ 16.

To identify

the alleged infringer(s), Strike 3 tracked the IP addresses that download and share the copyright-

protected material. See id. ¶¶ 9, 24, 26.

Using the IP address suspected of pirating the

material, Strike 3 then traced the location of the device used at the time of downloading, using
geolocation technology.

See id. ¶ 9.

That information enabled Strike 3 to file suit in this

Court, naming a John Doe placeholder as the defendant.

See id. ¶¶ 7-9.

Strike 3 then sought

leave to serve a subpoena on the Internet Service Provider to determine the subscriber of that IP
address. Def.’s Br. in Supp. of Mot. (“Def.’s Br.”), D.E. 7-4, at 4.
On October 1, 2024, this Court granted Strike 3’s motion for leave to serve Verizon
Online LLC with a subpoena to ascertain the subscriber information associated with IP address
173.54.29.135.

See Letter Op. and Order, Oct. 1, 2024, D.E. 6.

The Court concluded that

Strike 3 had good cause for seeking expedited discovery and that its need for the discovery
outweighed any prejudice to the opposing party.

See id. at 4-5.

On October 30, 2024,

Defendant filed the instant motion to quash the subpoena or, in the alternative, to proceed
anonymously.

Strike 3 filed an opposition to Defendant’s motion on October 31, 2024.

Br. in

Opp., D.E. 8.
II.

LEGAL STANDARD AND ANALYSIS
A. Defendant’s motion to quash is denied

Federal Rule of Civil Procedure 45(d)(3)(a) provides that, “[on] timely motion, the court
for the district where compliance is required must quash or modify a subpoena that . . . (iii)
requires disclosure of privileged or other protected matter if no exception or waiver applies; or
(iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(a).

“The party seeking to

quash the subpoena bears the burden of demonstrating that the requirements of [Rule 45] are
satisfied.” Malibu Media, LLC v. John Does # 1-30, No. 12-3896, 2012 WL 6203697, at *2
(D.N.J. Dec. 12, 2012) (quoting Malibu Media, LLC v. John Does 1-15, No. 12-2077, 2012 WL

2

3089383, at *5 (E.D. Pa. July 30, 2012)).

The defendant bears a substantial burden to prevail

on a motion to quash an otherwise valid subpoena. Malibu Media, LLC v. John Does 1-18, No.
12-7789, 2014 WL 229295, at *6 (D.N.J. Dec. 18, 2013).
Defendant asserts that the subpoena seeks privileged information, i.e., his name and
address, in which he has a reasonable expectation of privacy.

Def.’s Br., D.E. 7-4, at 6.

Defendant also alleges that Strike 3 is a serial litigator and that the instant lawsuit and subpoena
amount to nothing more than a fishing expedition.

Id.

Based on these two factors, Defendant

argues that the Court should grant his motion and quash the subpoena.

Id.

Strike 3 responds that the Court must deny Defendant’s motion to quash because the
motion is moot. Br. in Opp., D.E. 8, at 5.

As part of his motion to quash, Defendant filed, on

the public docket, a notice that Verizon sent to Defendant informing him of the subpoena.
Notice and Subpoena, Exhibit A, Certification of Albert H. Wunsch, III, D.E. 7-1.

The notice

portion of this exhibit is a two-page document that includes Defendant’s name and address.
at 7.

Id.

Strike 3 contends that because Defendant has publicly disclosed the subject information,

the Court must deny this portion of the motion.
The Court agrees.

Strike 3 now has the information sought by the subpoena.

“Simply

put, the Court cannot now un-ring this bell.” Strike 3 Holdings, LLC v. John Doe Subscriber
Assigned IP Address 96.248.100.147, No. 21-10385, 2022 WL 22896868, at *2 (D.N.J. June 17,
2022) (“Because Defendant’s name and address are now in Plaintiff’s possession, the Court
cannot provide any further effective relief.”). Accordingly, the Court denies Defendant’s
motion to quash the subpoena as moot and will turn to considering Defendant’s motion to
proceed anonymously.

3

B. Defendant’s motion for a protective order to proceed anonymously is
denied
A core component of the American judicial system is that judicial proceedings should be
conducted in public. Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011).

As such, Federal

Rule of Civil Procedure 10(a) requires that all parties identify themselves in pleadings.
Civ. P. 10(a).

Fed. R.

However, courts have recognized that under limited circumstances a party may

proceed via pseudonym “where disclosure of the litigant’s identity creates a risk of ‘extreme
distress or danger[.]’”

Doe v. Oshrin, 299 F.R.D. 100, 102 (D.N.J. 2014).

The Third Circuit has adopted a nine-factor test to evaluate whether a party should be
permitted to proceed anonymously referred to as the Provident Life factors.

Megless, 654 F.3d

at 408, 410 (citing Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. 464, 467 (E.D. Pa.
1997)).

The court must determine whether “a litigant’s reasonable fear of severe harm

outweighs the public’s interest in open judicial proceedings.”

Id.

The six factors that, if

found, weigh in favor of anonymity include:
(1) the extent to which the identity of the litigant has been kept
confidential; (2) the bases upon which disclosure is feared or
sought to be avoided, and the substantiality of these bases; (3) the
magnitude of the public interest in maintaining the confidentiality
of the litigant’s identity; (4) whether, because of the purely legal
nature of the issues presented or otherwise, there is an atypically
weak public interest in knowing the litigant’s identities; (5) the
undesirability of an outcome adverse to the pseudonymous party
and attributable to his refusal to pursue the case at the price of
being publicly identified; and (6) whether the party seeking to sue
pseudonymously has illegitimate ulterior motives.
Id. at 409.

It is not enough “[t]hat a plaintiff may suffer embarrassment or economic harm.”

Id. (citing Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 371 n.2 (3d Cir. 2008)); see
Liberty Media Holdings, LLC v. Swarm Sharing Hash File, No. 11-10802, 2011 WL 5161453, at
*7 (D. Mass. Oct. 31, 2011) (citation, alteration, and quotation marks omitted) (stating that

4

“mere embarrassment is not sufficient to override the strong public interest in disclosure”).

The

three factors weighing against proceeding anonymously include:
(1) the universal level of public interest in access to the identities
of litigants; (2) whether, because of the subject matter of this
litigation, the status of the litigant as a public figure, or otherwise,
there is a particularly strong interest in knowing the litigant’s
identities, beyond the public’s interest which is normally obtained;
and (3) whether opposition to pseudonym by counsel, the public,
or the press is illegitimately motivated.
Id.

Because “each case presents a slightly different list of factors for courts to consider,” these

factors are not exhaustive. Id. at 408.
Courts must exercise their discretion in weighing the strong public interest in open
litigation with the need for a litigant to proceed anonymously.

“Exceptional circumstances

justify the use of a pseudonym when a reasonable fear of severe harm outweighs the strong
public interest in open litigation.” Doe v. Princeton Univ., No. 20-4352, 2020 WL 3962268, at
*2 (D.N.J. July 13, 2020).

Proceeding under a pseudonym is generally permitted in matters

involving “abortion, birth control, transsexuality, mental illness, welfare rights of illegitimate
children, AIDS, and homosexuality.” Doe v. Borough of Morrisville, 130 F.R.D. 612, 614
(E.D. Pa. 1990).
As an initial matter, the Court notes that Defendant fails to address any of the Provident
Life factors in support of his request to proceed anonymously.
rationale to support his request.

Indeed, Defendant provides no

Defendant simply states “[i]f the Court is inclined to deny

Defendant’s Motion to Quash, Defendant would respectfully request that a protective order be
effectuated, allowing Defendant to proceed pseudonymously.” Def.’s Mot. to Quash, D.E. 7, at
8.

Nonetheless, the Court will address each of the above factors in turn.

5

1. Factors Weighing in Favor of Anonymity
In considering the first factor, the Court must examine the extent to which Defendant’s
anonymity has been maintained. See Megless, 654 F.3d at 407, 410.

This factor does not

support granting a motion to proceed anonymously where Defendant’s identity has not been kept
confidential.

Id. (finding that plaintiff’s identity had not been kept confidential because prior to

the litigation defendant shared plaintiff’s name and other characteristics on a flyer).
forth above, Defendant’s identity has not been kept confidential.

As set

Defendant filed the instant

motion on October 30, 2024, revealing Defendant’s name and address in Exhibit A to the
Certification of Albert H. Wunsch, III.

Defendant’s name and address has remained on the

public docket since that time, as Defendant has not sought to seal Exhibit A.

Accordingly, the

Court finds that this factor does not weigh in favor of Defendant proceeding anonymously.
The second factor examines the substantiality of Defendant’s fear of public disclosure.
See Megless, 654 F.3d at 410.

This factor does not favor Defendant’s request to proceed

anonymously because he does not have a reasonable fear of severe harm. Requests to proceed
anonymously are granted in only exceptional circumstances. Oshrin, 299 F.R.D. at 102.
Moreover, embarrassment or concern for one’s reputation is insufficient to support anonymity.
See Megless, 654 F.3d at 408 (“It is not enough that a plaintiff may suffer embarrassment or
economic harm.”). Thus, this Court finds this factor does not support Defendant’s request to
proceed pseudonymously.
With respect to the third factor, the Court must consider the magnitude of the public
interest in maintaining the confidentiality of the litigant’s identity. Megless, 654 F.3d at 410.
Specifically, the Court must determine whether “if this litigant is forced to reveal his or her
name, will other similarly situated litigants be deterred from litigating claims that the public

6

would like to have litigated.” Id. After considering the above question, along with the present
facts, this Court finds that the public will remain virtually unaffected by its decision to deny
Defendant’s motion. In this copyright infringement action, the only conceivable fear of harm is
to Defendant’s reputation. But there is nothing before the Court from which it can conclude that
Defendant’s fear of harm to his reputation is so exceptional such that this factor weighs in favor
of anonymity. Indeed, as noted above, it is not enough that Defendant may suffer
embarrassment. See Megless, 654 F.3d at 408. To be sure, and as Defendant notes in his brief,
Strike 3 brings many copyright infringement actions every year in this Court and defendants
always face hurdles unique to their circumstances. But unless those hurdles will cause those
defendants severe harm, the public’s inherent interest in obtaining the identity of the parties
outweighs those defendants’ desire to proceed anonymously. See Strike 3 Holdings, LLC v.
Doe, 637 F. Supp. 3d 187, 199-200 (D.N.J. 2022) (noting that “it certainly cannot be the case
that anonymity is warranted for every defendant sued by Plaintiff simply because Plaintiff's
copyrighted works are adult films”). Thus, this factor does not weigh in favor of granting
Defendant’s motion.
The fourth factor considers “whether, because of the purely legal nature of the issues
presented or otherwise, there is an atypically weak public interest in knowing the litigant’s
identities.” Megless, 654 F.3d at 409; see also L.A. v. Hoffman, No. 14-6985, 2015 WL
4461852, at *2 (D.N.J. July 21, 2015) (finding it appropriate to grant plaintiffs’ request to
proceed anonymously where plaintiffs raised a constitutional challenge to a statute as it applied
generally to a class of people, a purely legal question, rather than how the statute applied to each
plaintiff based on the facts and circumstances of each plaintiff).

Conversely, where a claim is

predominantly fact dependent, this factor weighs against anonymity. See Doe v. Rider

7

University, No. 16-4882, 2018 WL 3756950, at *6 (D.N.J. Aug. 7, 2018) (finding this factor
weighs against anonymity because unlike Hoffman, plaintiff’s claims were fact dependent).
Plaintiff’s claims against Defendant are largely fact dependent, especially in a case such as this
where all litigation tasks to date have been aimed at discovering Defendant’s identity.

Thus,

the Court cannot find that this factor weighs in favor of granting Defendant’s request to proceed
under a pseudonym.
Turning to the fifth factor, the Court must determine whether “the undesirability of an
outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at
the price of being publicly identified.” Megless, 654 F.3d at 409.

This factor is typically

reserved for consideration when plaintiff seeks to proceed anonymously as it questions whether
plaintiff will pursue his case. Id. at 410.

Because Defendant seeks to proceed anonymously

here, the Court finds this factor inapplicable to the Court’s analysis.
With respect to the sixth factor, this Court finds that there is no evidence to demonstrate
that Defendant is seeking to use a pseudonym for an illegitimate or ulterior motive. Megless,
654 F.3d at 411.

Accordingly, this factor has no bearing on this Court’s determination.

See

Megless, 654 F.3d at 411.
2. Factors Weighing Against Anonymity
As to the factors weighing against proceeding anonymously, the Court first considers
whether “the universal level of public interest in access to the” litigants’ identities. Megless,
654 F.3d at 409.
identities.

The public generally has a high level of interest in knowing litigants’

See Princeton Univ., 2019 WL 5587327, at *6 (citing Doe v. Temple Univ., No. 14-

4729 (E.D. Pa. Sept. 3, 2014)).

Publicness is an essential aspect of any judicial proceeding.

8

Megless, 654 F.3d at 408.

Indeed, people have a right to know who is using the courts.

Id.

Thus, this factor weighs against granting Defendant’s motion.
Next, the Court considers “whether, because of the subject matter of this litigation, the
status of the litigant as a public figure, or otherwise, there is a particularly strong interest in
knowing the litigant’s identities, beyond the public’s interest which is normally obtained.”
Megless, 654 F.3d at 409.

As noted above, the subject matter of this litigation, copyright

infringement, is quite common and Strike 3 is a frequent filer in this District.
Court’s knowledge, Defendant is not a public figure.

Further, to the

There is not a heightened public interest

beyond the public’s typically strong interest in public proceedings.

Accordingly, the Court

finds there is no heightened interest in knowing Defendant’s identity other than that normally
present.
Lastly, the Court considers “whether opposition to pseudonym by counsel, the
public or the press is illegitimately motivated.” Megless, 654 F.3d at 409.
submitted opposition to this portion of Defendant’s motion. 1
opposition, the Court cannot find illegitimate motives.

No one has

In the absence of any

Thus, this factor has no bearing

on the Court’s analysis.

1

It bears noting that Plaintiff’s counsel indicates that while he does not oppose
Defendant’s request to proceed anonymously. However, Chief Judge Bumb recently
held that mere assent to this relief may be improper. See Strike 3 Holdings, LLC v. Doe,
637 F. Supp. 3d 189, 199-200 (D.N.J. 2022). In so concluding, Chief Judge Bumb
found that the public has a presumptive right of access to judicial proceedings and the
anonymity inquiry is for the Court alone to decide. Id. at 199. Moreover, the Third
Circuit also recently determined that “simply wanting to proceed anonymously is not
enough to overcome the ‘thumb on the scale that is the universal interest in favor of open
judicial proceedings.’” Doe v. Cap. Health Sys. Inc., No. 23-2882, 2024 WL 175947, at
*1 (3d Cir. Jan. 11, 2024) (citation omitted). For the reasons stated, the Court finds that
Defendant has failed to carry his burden of tipping the scale in his favor.

9

Considering the relevant factors, the Court concludes that they weigh against
allowing Defendant to proceed anonymously through the use of a pseudonym.

For these

reasons, the Court denies Defendant’s motion for a protective order to proceed
anonymously.
III.

CONCLUSION

For the reasons set forth above, Defendant’s motion to quash and for a protective
order to proceed anonymously is denied.

/s/ Michael A. Hammer
UNITED STATES MAGISTRATE JUDGE

10