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LLC v. Doe

United States District Court, S.D. California

March 27, 2018

Strike 3 Holdings, LLC, Plaintiff,
v.
John Doe, Defendant.

          ORDER GRANTING EX-PARTE APPLICATION FOR LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE [ECF No. 4]

          Hon. Jill L. Burkhardt United States Magistrate Judge.

         Presently 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.

         I. BACKGROUND

         This is 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.[1] 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 172.4.36.179 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 172.4.36.179.” (ECF No. 1.) The Complaint alleges a single claim of copyright infringement. (Id. at ¶¶34-39.)

         Because 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 172.4.36.179. (Id. at 7)

         II. LEGAL STANDARDS

         Discovery 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)).

         District 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).

         III. DISCUSSION

         Plaintiff 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.

         A. Identification of Missing Party with Sufficient Specificity

         For the 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)).

         In 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.[2] 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 172.4.36.179 is a residential user and that the IP address assigned by AT&T Inc. (AT&T U-verse) is dynamic.[3] 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.

         Here, 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 172.4.36.179 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 172.4.36.179, which was observed distributing multiple pieces of Strike 3 Holding's motion pictures. (Id. at ...


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