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Malibu Media, LLC, A California Corporation v. John Does 1 Through 11

July 17, 2012


The opinion of the court was delivered by: Jan M. Adler U.S. Magistrate Judge


Before the Court is Plaintiff's Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference ("the Motion"). Doc. No. 4. After reviewing the Motion and accompanying Memorandum of Points and Authorities, the Court finds the Motion suitable for resolution on the papers pursuant to Civil Local Rule 7.1(d)(1). See S.D. Cal. Civ. R. 7.1(d)(1). For the reasons discussed below, the Motion is GRANTED.


Plaintiff Malibu Media, LLC ("Plaintiff") filed the Complaint on April 30, 2012 against eleven John Does ("Defendants"). Doc. No. 1. Plaintiff purports to be the registered owner of United States Copyright Registration Number PA0001778844 for the motion picture entitled "Like the First Time." Id. at 2. The Complaint alleges Defendants engaged in direct and contributory copyright infringement of the protected work. Id. at 10-11. According to Plaintiff, the Defendants distributed, displayed and shared the protected work through BitTorrent technology without Plaintiff's authorization. Id. at 7-10. Plaintiff claims to have identified the Internet Protocol ("IP") addresses of the Defendants involved in the infringing activity and, using publicly available search tools, has traced the IP addresses to physical addresses within this District as well as the Internet Service Provider ("ISP") which leased the involved IP addresses to subscribers. Id. at 7; Motion, Ex. B.

Plaintiff filed the Motion on the same day it filed the Complaint to learn the identities of the Defendants from their ISP. Motion at 2. Specifically, Plaintiff seeks leave of court to serve Rule 45 subpoenas on the ISP to discover the true name, address, telephone number, e-mail address and Media Access Control ("MAC") address of each Defendant. Id.


Generally, discovery is not permitted without a court order before the parties have conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). Yet, "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 service on the defendant." Columbia Ins. Co. v., 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Courts grant these requests when the moving party shows good cause for the early discovery. Semitool, Inc. v. Tokyo Elec. Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002).

The Ninth Circuit has held that when the defendants' identities are unknown at the time the complaint is filed, courts may grant plaintiffs leave to take early discovery to determine the defendants' identities "unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds." Gillespie, 629 F.2d at 642. A district court's decision to grant discovery to determine jurisdictional facts is a matter of discretion. Columbia Ins. Co., 185 F.R.D. at 578.

District courts apply a three-factor test when considering motions for early discovery to identify certain defendants. Id. at 578-80. 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." Id. at 578. Second, the movant must describe "all previous steps taken to locate the elusive defendant" to ensure that the plaintiff has made a good faith effort to identify and serve process on the defendant. Id. at 579. Third, the plaintiff should establish that its suit against the defendant could withstand a motion to dismiss. Id. "[T]o prevent abuse of this extraordinary application of the discovery process and to ensure that the plaintiff has standing," the plaintiff must show that some act giving rise to liability actually occurred and that the discovery is aimed at identifying the person who actually committed the act. Id. at 579-80.


Plaintiff seeks an order permitting it to subpoena the Defendants' ISP in order to learn their true identities and serve them with the Complaint. Specifically, Plaintiff seeks to subpoena Cox Communications to identify the subscribers of the assigned IP addresses provided by Plaintiff's forensic investigative service, IPP, Limited. See Fieser Decl. in Support of Plaintiff's Motion ("Fieser Decl."), Doc. No. 4-3, Ex. B (referred to as "Exhibit B" herein). All eleven of the IP addresses Plaintiff lists in Exhibit B are purportedly located in Southern California and all of the Defendants appear to be located within the Southern District of California. Id.

A. Identification of Missing Parties with Sufficient Specificity

First, Plaintiff must identify the Defendants with enough specificity to enable the Court to determine that the defendant is a real person or entity who would be subject to the jurisdiction of this Court. Columbia Ins. Co., 185 F.R.D. at 578. In the Motion, Plaintiff asserts it properly pleads a cause of action for copyright infringement against each Doe Defendant, that there is no other way to obtain Defendants' true identities because only the ISP can correlate the IP address used by one of its subscribers to a real person, and without learning Defendants' true identities, Plaintiff will not be able to serve them with process and proceed with this case. Motion at 4-7.

Some district courts in the Ninth Circuit have determined that a plaintiff identifies Doe defendants with sufficient specificity by providing the unique IP address assigned to an individual defendant on the day of the allegedly infringing conduct, and by using "geolocation technology" to trace the IP address to a physical point of origin. See Openmind Solutions, Inc. v. Does 1-39, No. C-11-33-11 MEJ, 2011 U.S. Dist. LEXIS 116552, at *5-6 (N.D. Cal. Oct. 7, 2011); Pink Lotus Entm't v. Does 1-46, No. C-11-02263 HRL, 2011 U.S. Dist. LEXIS 65614, at *6-7 (N.D. Cal. June 21, 2011). Others have found that merely identifying the IP addresses assigned to the defendants on the day of the purported infringement is sufficient to satisfy the first factor. See MCIP, LLC v. Does 1-149, No. ...

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