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Af Holdings LLC v. John Doe

July 24, 2012


The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge


Plaintiff's Ex Parte Application for Leave to Take Expedited Discovery was filed on June 28, 2012, along with the Declaration of Peter Hansmeier and an exhibit [ECF No. 3]. Because no Defendant has been named or served, no opposition or reply briefs have been filed. For the reasons discussed below, the Ex Parte Application is DENIED.


PROCEDURAL HISTORY On June 20, 2012, Plaintiff AF Holdings, LLC ("AF Holdings") filed a Complaint with attachments [ECF No. 1]. The Plaintiff asserts copyright infringement claims against John Doe ("Defendant"). (Compl. 7-10, ECF No. 1.) Defendant allegedly copied and distributed a video that AF Holdings purports to be the registered owner of, and hold the exclusive rights to. (Id. at 1-2.) First, the Plaintiff alleges a claim for direct copyright infringement, stating that Defendant reproduced and distributed the copyrighted video through the Internet without Plaintiff's authorization. (Id. at 1, 7.) Second, AF Holdings pleads contributory copyright infringement, asserting that Defendant illegally obtained the video and assisted others in doing the same. (Id. at 1, 8.) Third, Plaintiff contends Defendant was negligent in failing to adequately secure his or her Internet access to prevent its unlawful use by others. (Id. at 9.)

Eight days after filing the Complaint, on June 28, 2012, the Plaintiff filed this Ex Parte Application seeking leave to take expedited discovery. (Pl.'s Ex Parte Appl. Leave Take Expedited Disc. 1, ECF No. 3.) The Plaintiff seeks permission to take "early discovery" from the Doe Defendant's Internet Service Provider ("ISP"), Cox Communications, to ascertain the Defendant's identity. (Id. at 1-2; see id. Attach. #1 Decl. Hansmeier 10 ("Plaintiff needs early discovery from the ISPs, so that the name and address of the accused infringer can be obtained by Plaintiff . . . .").)


THE BASIS FOR AN EX PARTE MOTION "Ex parte applications are a form of emergency relief that will only be granted upon an adequate showing of good cause or irreparable injury to the party seeking relief." K. Clark v. Time Warner Cable, No. CV 07-1797-VBF(RCx), 2007 U.S. Dist. LEXIS 100716, at *2 (C.D. Cal. May 3, 2007) (citing Mission Power Eng'g Co. v. Continental Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995)). The moving party must be "without fault" in creating the need for ex parte relief or establish that the "crisis [necessitating the ex parte application] occurred as a result of excusable neglect." Id. An ex parte application seeks to bypass the regular noticed motion procedure; consequently, the party requesting ex parte relief must establish a basis for giving the application preference. See id. United States District Court Southern District of California Civil Local Rule 7.1(e) outlines the procedures for filing regular motions. Kashani v. Adams, No. 08cv0268 JM(AJB), 2009 U.S. Dist. LEXIS 34153, at *4 (S.D. Cal. Apr. 21, 2009) (citing S.D. Cal. Civ. R. 7.1(e)). Ex parte proceedings are reserved for emergency circumstances. Id.

Plaintiff's pending Ex Parte Application fails this test. See Mission Power Eng'g Co., 883 F. Supp. at 492 (providing that many ex parte motions are denied because the papers do not demonstrate that emergency relief is necessary). AF Holdings does not discuss whether its request is a proper subject for ex parte consideration or why the regular noticed motion procedures must be bypassed. See id. The Plaintiff generally submits that ex parte relief is appropriate because without knowledge of Defendant's identity, the parties cannot adequately confer. (Pl.'s Ex Parte Appl. Leave Take Expedited Disc. 10-12, ECF No. 3.) Also, in support of its argument addressing the merits of whether it should be given leave to serve discovery, Plaintiff states that there is a risk that the ISP will destroy the relevant logs before the parties conduct a Federal Rule of Civil Procedure 26(f) conference. (Id. at 10 ("The information is facing imminent destruction . . . .").

Even construing Plaintiff's assertion in support of an attempt to justify the ex parte request, emergency consideration is not necessary. AF Holdings relies on the Declaration of Peter Hansmeier, a technician at a company that monitors and documents the Internet-based piracy of its clients' copyrighted creative content. (Id. Attach. #1 Decl. Hansmeier.) Hansmeier submits that ISPs keep track of the IP addresses assigned to their subscribers. (Id. at 9.) "ISPs have different policies regarding the length of time they preserve information about what IP address was associated with a given subscriber at a given date and time." (Id.) The Plaintiff also attaches copies of various ISPs' subpoena compliance policies. (Id. Attach. #2 Ex. B, at 2-20.) Although it attaches the policies of Comcast and Time Warner Cable & Road Runner, only Cox Communications, this Defendant's ISP, is relevant. Cox's records retention policy for subscriber information is three years. (Id. at 16.) Therefore, Plaintiff's misrepresentation that the subscriber information records are "facing imminent destruction" is disingenuous and may run afoul of Rule 11 of the Federal Rules of Civil Procedure. (Pl.'s Ex Parte Appl. Leave Take Early Disc. 10.)


CONCLUSION AF Holdings has failed to demonstrate that its request should be considered on an ex parte basis. "Lawyers must understand that filing an ex parte motion, whether of the pure or hybrid type, is the forensic equivalent of standing in a crowded theater and shouting, 'Fire!' There had better be a fire." Mission Power Eng'g Co. v. Continental Cas. Co., 883 F. Supp. at 492. Plaintiff's Ex Parte Application [ECF No. 4] is DENIED.


cc: Judge Burns

All Parties of ...

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