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Af Holdings LLC v. John Doe

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 23, 2012

AF HOLDINGS LLC, PLAINTIFF,
v.
JOHN DOE, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court is plaintiff's ex parte application for leave to conduct expedited discovery ("Application") pursuant to Federal Rule of Civil Procedure 26(d)(1).*fn1

(Application, Dkt. No. 10.) Plaintiff seeks leave of court to serve a discovery subpoena on nonparty Internet Service Provider ("ISP") Comcast Cable Communications LLC ("Comcast"), and if necessary serve subpoenas on other "intermediary ISPs," in order to obtain the true identity of defendant "John Doe," who is alleged to have infringed on plaintiff's copyrighted video entitled Popular Demand. (See generally Application; see also, e.g., Am. Compl. ¶¶ 1, 3-4).

Based on a review of the court's docket, plaintiff has already successfully applied for an order granting the exact same requested expedited discovery plaintiff now seeks.*fn2 The pending Application is therefore denied without prejudice to refiling.

II. DISCUSSION

On April 23, 2012, plaintiff filed its complaint against defendant "John Doe," asserting claims of copyright infringement, contributory infringement, and negligence in regards to the copyrighted video entitled Popular Demand ("Video"). (See generally Compl.) On May 3, 2012, plaintiff filed an ex parte application for leave to conduct expedited discovery upon nonparty Comcast. (Dkt. No. 7.) On May 24, 2012, the undersigned granted the application and permitted the expedited discovery. (Order, Dkt. No. 8.)

On July 21, 2012, plaintiff filed a First Amended Complaint. (First Am. Compl., Dkt. No. 9.) On July 25, 2012, plaintiff filed the pending ex parte application. (Application, Dkt. No. 10.)

As a preliminary matter, it appears that plaintiff may not have filed its First Amended Complaint in accordance with Federal Rule of Civil Procedure 15(a).*fn3 A review of the court's docket does not reflect that plaintiff's First Amended Complaint was filed within 21 days after the service of plaintiff's original pleading. Fed. R. Civ. P. 15(a)(1)(A). The docket does not reflect plaintiff ever having served its original pleading, and it is possible that plaintiff never served it, so it is possible that the amended pleading does not run afoul of Rule 15. However, given that the undersigned granted plaintiff's prior application for expedited discovery upon Comcast - an application that was based on the original pleading - it appears possible that plaintiff completed that discovery, learned the identity of the John Doe defendant, and completed service of the original pleading. However, plaintiff has not discussed any reason for filing an amended pleading at this posture, leaving the court to wonder whether the original pleading has been served and/or whether any prejudice would result from allowing an amended pleading at this posture. Plaintiff did not request leave of court prior to filing its amended pleading. Fed. R. Civ. P. 15(a)(1)(C). In any event, the undersigned defers to the district judge regarding the propriety of the First Amended Complaint and resolves the pending Application on other grounds.*fn4

Plaintiff's pending Application is denied for two reasons. First, the Application appears almost completely identical to plaintiff's previous ex parte application, which has already been granted. (Compare Dkt. No. 7 with Dkt. No. 10.) Both applications seek expedited discovery from the same nonparty, Comcast. Both applications explain that the expedited discovery would aid the identification of the "John Doe" defendant named in this action. The pending Application offers no explanation as to how it differs from the application that was granted on May 25, 2012. (Dkt. No. 8.) The undersigned declines to grant a duplicative order.

Second, plaintiff's original complaint and previous ex parte application target a John Doe defendant with "IP address 76.20.26.96." (Compl. ¶ 4; Declaration of Peter Hansmeier ("Hansmeier Decl.") in support of original ex parte application, Dkt. No. 7-1 at ¶ 27.) Yet, and potentially somewhat disturbingly, plaintiff's amended pleading and pending Application now target an entirely different IP address: "76.114.14.5. " (First Am. Compl. ¶ 4; Hansmeier Decl., Dkt. No. 10-1 at ¶ 27.)

In short, the amended pleading and pending Application target an entirely different John Doe defendant than the one this case started with. At best, this change represents a simple typo. At worst, it suggests an attempt to use the expedited discovery mechanism to seek identifying information regarding two John Doe defendants while paying only one case filing fee. Absent an explanation as to why John Doe's IP address has changed between pleadings, the undersigned declines to order the requested expedited discovery. Given plaintiff's silence regarding this change, it is impossible to tell whether plaintiff has already used the undersigned's prior order to obtain discovery from Comcast as to the original IP address, and now seeks a second bite at the apple - this time, seeking to identify someone with an entirely different IP address who may not properly be part of this action.

Accordingly, the pending Application is denied without prejudice to refiling.

III. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that: Plaintiff's ex parte Application to conduct expedited discovery (Dkt. No. 10) is denied without prejudice to refiling.

IT IS SO ORDERED.


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