United States District Court, S.D. California
ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO
SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(F) CONFERENCE
[ECF NO. 4]
HONORABLE JAN M. ADLER, UNITED STATES MAGISTRATE JUDGE
the Court is an Ex Parte Application for Leave to Serve a
Third Party Subpoena Prior to a Rule 26(f) Conference filed
by Plaintiff Strike 3 Holdings, LLC
(“Plaintiff”). (ECF No. 4.) For the reasons
discussed below, Plaintiff's motion is GRANTED.
January 5, 2018, Plaintiff filed a Complaint against
Defendant John Doe subscriber assigned IP address
184.108.40.206 (“Defendant”). (Compl., ECF No. 1).
Plaintiff alleges it “owns the intellectual property to
the Blacked, Tushy, and Vixen
adult brands, including the copyrights to each of the motion
pictures distributed through the brands' sites and the
trademarks to each of the brand names and logos.” Ex
Parte Appl. at 2; Compl., ¶ 25 & Ex. A. The Complaint
alleges a claim of copyright infringement. Plaintiff alleges
that Defendant, using IP address 220.127.116.11, infringed
Plaintiff's copyrights by copying and distributing the
constituent elements of Plaintiff's copyrighted works
using the BitTorrent protocol without Plaintiff's
authorization, permission or consent. Compl., ¶¶
seeks leave of court to serve a subpoena pursuant to
Fed.R.Civ.P. 45 on Defendant's internet service provider
(“ISP”), Cox Communications, in order to learn
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. Seescandy.com, 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).
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.
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.
Identification of Missing Parties with Sufficient
Plaintiff must identify Defendant 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. Id. at 578. “[A] plaintiff
identifies Doe defendants with sufficient specificity by
providing the unique IP addresses 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. 808 Holdings, LLC
v. Collective of Dec. 29, 2011 Sharing Hash, 2012 WL
1648838, at *4 (S.D. Cal. May 4, 2012).
Plaintiff determined the ISP that had provided the subject IP
address associated with Defendant was Cox Communications, and
used geolocation technology to trace the IP address to an
address located within this district. Compl., ¶¶
8-9 & Ex. A; Fieser Decl., ¶¶ 7-9; Stalzer Decl.,
¶ 11. Consequently, Plaintiff has identified Defendant
with sufficient specificity and has satisfied the first
factor of the test for permitting early discovery.
Previous Attempts ...