RynoRyder Productions, Inc. v. Does 1 - 23

Filing 7

Order and Findings & Recommendation: Ordered Ex Parte Motion to Expedite or Accelerate Discovery to Ascertain the Identity of Defendants 3 is denied as moot. Doe defendants 2-23 should be severed and dismissed from this action and plaintiff should submit an amended complaint within within 10 days. Objections to the Findings and Recommendation are due by 5/31/2013. Signed on 5/14/2013 by Magistrate Judge Thomas M. Coffin. (plb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

RYNORYDER PRODUCTIONS, INC.,
Plaintiff,

No.

v.

6:13-cv-539-TC

ORDER and
FINDINGS AND RECOMMENDATION

DOES 1-23,
Defendants.

COFFIN, Magistrate Judge:
Plaintiff RynoRyder Productions filed this action on March 28,
2013, asserting copyright infringement against 23 users of various
BitTorrent clients, identified only by their internet protocol (IP)
addresses.

Plaintiff

alleges

defendants

collectively

interconnected to illegally copy and distribute plaintiff's film

1 - ORDER

Evidence

after

decryption

of

the

DVD

version

of

the

film.

Plaintiff seeks to expedite discovery so that it can subpoena the
various

internet

service

providers

(ISP)

for

identity

of

the

account holders associated with each IP address of the alleged
infringers.
A BitTorrent client allows a group of users, through a torrent
file

and tracker,

to share small pieces of a

larger file

with

numerous other users to eventually download the whole file to each
individual user.

Through the instant motion, plaintiff seeks to

identify the identities of the BitTorrent users who joined in the
distribution of the pieces of Evidence.
Plaintiff seeks an order to take discovery, prior to a Rule 26
conference, allowing it to subpoena records from various internet
service providers in Cottage Grove, Portland, Woodburn, Clackamas,
Tualatin,
Newberg,

Redmond,
all

Beaverton,

Eugene,

Fairview,

located within two different

District of Oregon.

Corvallis,

and

divisions within the

The allegations demonstrate participation in

the alleged "collective" activity of sharing on dates ranging from
December 1, 2012, through March 1, 2013.
As a general rule, discovery proceedings take place only after
the defendant has been served; however, in rare cases, courts have
made exceptions, permitting limited discovery to ensue after filing
of the complaint to permit the plaintiff to learn the identifying
facts

necessary to permit

2 - ORDER

service

on the

defendant.

See

e.g.,

Gillespie

v.

Civiletti,

629

F.2d

637,

642

Exceptions to the general rule are disfavored.

(9th

Cir.

1980).

Id.

A court does have jurisdiction to determine the facts relevant
to whether or not it has in personam jurisdiction in a given case.
See Wells
n. 24

Farg~

& Co. v. Wells Fargo Express Co., 556 F.2d 406, 430

(9th Cir. 1977).

A court's decision to grant discovery to

determine jurisdictional facts is a matter of discretion. See id.
Ubiquitous

int~rnet

that appears
discovery

usage has given rise to the not so rare case

to qualify as

prior

to

service

"the
on

rare
a

case"

defendant.

that

should permit

This

is

because

internet usage can be done anonymously and it is stealthy tool for
conducting
discover

copyright
copyright

infringement.
infringers,

relatively anonymously,

Accordingly,

who

conduct

the

their

need

to

activities

through peer to peer networks,

must be

balanced against the reluctance for permitting filings against Doe
defendants and the traditional enforcement of strict compliance
with service requirements.
A court's discretion to allow discovery pre service is guided
by the following factors:
First, the plaintiff should identify the missing party with
sufficient

specificity such that

the

court

can

determine

that

defendant is a real person or entity who could be sued in federal
court. See e.g., Wells Fargo, 556 F.2d at 430 n. 24.
Second, the party should identify all previous steps taken to

3 - ORDER

locate the elusive defendant. See Plant v. Does, 19 F.Supp.2d 1316,
1320 (S.D.Fla. 1998).
Third, plaintiff should establish to the court's satisfaction
that plaintiff's suit against defendant could withstand a motion to
dismiss. See Gillespie, 629 F.2d at 642.
In this case, the IP addresses of the alleged infringers has
been identified and their respective ISPs can match those addresses
Plaintiff has already

to actual names and physical addresses.
taken

steps

to

identify the

IP addresses

and general physical

locations.

However, the nature of this and other bittorrent cases

gives

to

rise

a

problem

beyond

pre-service

discovery,

i.e.,

prejudicial joinder.
The district court has already determined, in a similar action
involving Doe defendants
inappropriate
agree,

and that

utilizing BitTorrent,

individual

cases

that

should be pursued.

for the reasons stated in Voltage Pictures v.

6:13-cv-290-AA,
defendants

Order

dated

May

4,

joinder is

2013

(#50),

I

Does 1-198,
and

all

Doe

should be severed and Doe defendants 2-23 should be

dismissed from this action.

Accordingly, the motion for an order

permitting plaintiff to take limited expedited discovery prior to
the Rule 26 conference to ascertain the specific identity of the
defendants listed in Exhibit 1 of the complaint is denied as moot.

4 - ORDER

CONCLUSION
For the reasons stated above, plaintiff's motion for an order
permitting plaintiff to take limited expedited discovery prior to
the Rule 26 conference (#3) is denied as moot.

Doe defendants 2-23

should be severed and dismissed from this action and plaintiff
should submit an amended complaint within 10 days.
The recommendation to sever and dismiss Doe defendants is not
an order that is immediately appealable to the Ninth Cir-cuit Court
of appeals. Any notice of appeal pursuant to Rule 4(a) (1), Federal
Rules of Appellate Procedure,

should not be filed until entry of

the district court's judgment or appealable order.

The parties

shall have fourteen (14) days from the date of service of a copy of
this

recommendation

objections
fourteen

with
(14)

objections.

within

which

to

the

court.

Thereafter,

days

within

which

Failure

determination of

to

timely

the Magistrate

to

file

file
the
file

specific
parties
a

objections

Judge will

be

shall

response
to

written

any

to

have
the

factual

considered as

a

waiver of a party's right to de novo consideration of the factual
issues and will constitute a waiver of a party's right to appellate
review of the findings

of fact in an order or judgment entered

pursuant to this recommendation.

DATED this

5 - ORDER

14

day of May, 2013.

United

6 - ORDER

Magistrate Judge