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]
Jill L. Burkhardt United States Magistrate Judge.
before the Court is Plaintiff's Ex Parte
Application for Leave to Serve a Third Party Subpoena Prior
to a Rule 26(f) Conference. (ECF No. 4.) As no defendant has
been named or served in this case, there is no opposition to
the Application. For the reasons set forth below,
Plaintiff's Application is GRANTED.
one of twenty-eight cases filed in this district court on
behalf of Plaintiff by attorney Lincoln Dee Bandlow alleging
copyright infringement by a John Doe defendant through the
use of the BitTorrent file-sharing system. Plaintiff alleges
that it is the copyright owner of motion pictures distributed
through adult content websites, including Blacked,
Blacked Raw, Tushy, and Vixen. (ECF No. 4-2
at ¶3.) Plaintiff alleges that between May 16, 2017 and
December 10, 2017, the person or entity assigned Internet
Protocol (“IP”) address 18.104.22.168 illegally
downloaded, copied, and/or distributed thirty-three of
Plaintiff's motion pictures through his, her, or its use
of the online BitTorrent file distribution network. (ECF No.
1 at ¶¶5, 12, 23-30; ECF No. 1-2 at 1-2; see
also ECF No. 4-3 at ¶¶7-10.) On January 31,
2018, Plaintiff commenced the instant action by filing a
Complaint against Defendant “JOHN DOE, subscriber
assigned IP address 22.214.171.124.” (ECF No. 1.) The
Complaint alleges a single claim of copyright infringement.
(Id. at ¶¶34-39.)
Defendant used the Internet to commit the alleged
infringement, Plaintiff knows Defendant only by his, her, or
its IP address, which Plaintiff believes was assigned to
Defendant by the Internet Service Provider
(“ISP”) AT&T Inc. (AT&T U-verse).
(Id. at ¶5; ECF No. 1-2 at 1-2; ECF No. 4-1 at
6, 16.) In the present Application, Plaintiff asserts that
AT&T Inc. (AT&T U-verse) “is the only party
with the information necessary to identify Defendant by
correlating the IP address with John Doe's
identity.” (ECF No. 4-1 at 6.) Accordingly, Plaintiff
seeks leave to serve a Rule 45 subpoena on Defendant's
ISP, AT&T Inc. (AT&T U-verse), to obtain the name and
address associated with IP address 126.96.36.199.
(Id. at 7)
is not permitted before the parties have conferred pursuant
to Federal Rule of Civil Procedure 26(f) unless authorized by
court order. Fed R. Civ. P. 26(d)(1). “[H]owever, 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).
Requests to conduct discovery prior to a Rule 26(f)
conference are granted upon a showing of good cause by the
moving party, which may be found “where the need for
expedited discovery, in consideration of the administration
of justice, outweighs the prejudice to the responding
party.” Semitool, Inc. v. Tokyo Electron Am.,
Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002). “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 (citing
Wells Fargo & Co. v. Wells Fargo Express Co.,
556 F.2d 406, 430 n.24 (9th Cir. 1977)).
courts in the Ninth Circuit apply a three-factor test for
determining whether good cause exists to allow for expedited
discovery to identify Doe defendants. See Columbia Ins.
Co., 185 F.R.D. 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 plaintiff “should
identify 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 to the Court's satisfaction that
plaintiff's suit against defendant could withstand a
motion to dismiss.” Id. (citing
Gillespie, 629 F.2d at 642). Further, the plaintiff
“should file a request for discovery with the Court,
along with a statement of reasons justifying the specific
discovery requested as well as identification of a limited
number of persons or entities on whom discovery process might
be served and for which there is a reasonable likelihood that
the discovery process will lead to identifying information
about defendant that would make service of process
possible.” Id. at 580 (citing
Gillespie, 629 F.2d at 642).
seeks an order allowing it to serve a Rule 45 subpoena on
AT&T Inc. (AT&T U-verse) before the parties have
conducted a Rule 26(f) Conference so that Plaintiff may
obtain the true name and address of Defendant. (ECF No. 4-1
at 7.) For the reasons set forth below, Plaintiff's
Application is GRANTED.
Identification of Missing Party with Sufficient
Court to grant Plaintiff's Application, Plaintiff must
first identify Defendant with enough specificity to enable
the Court to determine Defendant is a real person or entity
who would be subject to the jurisdiction of this Court.
See Columbia Ins. Co., 185 F.R.D. at 578. This Court
has previously determined that “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 addresses
to a physical point of origin.” 808 Holdings, LLC
v. Collective of December 29, 2011 Sharing Hash, No.
12-cv-186 MMA (RBB), 2012 WL 12884688, at *4 (S.D. Cal. May
8, 2012) (citing Openmind Solutions, Inc. v. Does
1-39, No. 11-cv-3311, 2011 WL 4715200, at *5-6 (N.D.
Cal. Oct. 7, 2011); Pink Lotus Entm't, LLC v. Does
1-46, No. 11-cv-02263, 2011 WL 2470986, at *6-7 (N.D.
Cal. June 21, 2011)).
cases where it is unclear whether the subject IP address is
“dynamic” or “static, ” such as here,
it matters when Plaintiff's geolocation efforts were
performed. In the context of dynamic IP addresses,
“a person using [a particular IP] address one month may
not have been the same person using it the next.”
State v. Shields, No. CR06352303, 2007 WL 1828875,
at *6 (Conn. Sup. Ct. June 7, 2007). It is likely that the
user of IP address 188.8.131.52 is a residential user and
that the IP address assigned by AT&T Inc. (AT&T
U-verse) is dynamic. Thus, if Plaintiff's geolocation
efforts were performed close in time to the offending
downloads, they may be probative of the physical location of
the subject IP subscriber. If not, the geolocation of the
subject IP address may be irrelevant.
the Court concludes that the instant Application sufficiently
demonstrates that Defendant is likely subject to the
Court's jurisdiction. Plaintiff attaches to its Complaint
a table reflecting that the user of IP address 184.108.40.206
engaged in allegedly infringing activity between May 16, 2017
and December 10, 2017. (ECF No. 1-2 at 1-2.) In addition,
Plaintiff attaches to its Application the declaration of
Tobias Fieser, an employee of IPP International UG (IPP), a
forensic investigation services company. (ECF No. 4-3.)
Fieser declares that IPP connected to an electronic device
using IP address 220.127.116.11, which was observed
distributing multiple pieces of Strike 3 Holding's motion
pictures. (Id. at ...