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Binbit Argentina, S.A. v. Does

United States District Court, N.D. California

September 24, 2019

BINBIT ARGENTINA, S.A., Plaintiff,
v.
JOHN DOES 1-25, et al., Defendants.

          ORDER DENYING EX PARTE MOTION FOR EARLY DISCOVERY RE: DKT. NO. 5

          KANDIS A. WESTMORE UNITED STATES MAGISTRATE JUDGE.

         On August 27, 2019, Plaintiff Binbit Argentina, S.A. filed the instant case, asserting claims for breach of contract and violations of the Computer Fraud and Abuse Act. (Compl. at 1, Dkt. No. 1.) Plaintiff is an Argentinian company that provides mobile entertainment services. (Compl. ¶ 6.) To attract new customers, Plaintiff contracts with companies (“Networks”) that offer online marketing services through third parties called affiliates (“Affiliates”), who create advertising campaigns to encourage customers to use Plaintiff’s services. (Compl. ¶¶ 12, 13.)

         Plaintiffs allege that between February and April 2017, Defendants – an unknown Affiliate and/or Network – “created a misleading and fraudulent advertising campaign to sign up for [Plaintiff]’s services.” (Compl. ¶¶ 15, 16.) Defendants fraudulently advertised that in exchange for filling out a three-question survey, the user would receive 1, 000 Ferrero Rocher chocolate eggs. (Compl. ¶ 17.) Users would be directed to webpages hosted on “MyPromos.vip” and “SuperPromos.top” to complete the fraudulent survey. (Compl. ¶ 20.) At the end of the survey, users were directed to a loading page to enter their cell phone number to receive their prize. (Compl. ¶ 21.) By entering their cell phone number, the users would instead be signed up for Plaintiff’s paid services. (Compl. ¶ 22.) Plaintiff asserts that the campaign caused Plaintiff to be the subject of negative news stories in Argentina and Latin America. (Compl. ¶ 25.)

         On August 29, 2019, Plaintiff filed the instant ex parte motion for early discovery, seeking the true identities of the Doe Defendants and the Roe Corporation Defendants from Dynadot LLC and Cloudflare, Inc., California corporations who provide domain name services. (Pl.’s Mot. at 2, Dkt. No. 5.) In the motion, Plaintiff states that Defendants are unknown Affiliates who made the statements pursuant to Plaintiff’s agreement with one of its Networks. (Id. at 3.)

         The Court finds Plaintiff has failed to demonstrate that it is entitled to early discovery. In general, Federal Rule of Civil Procedure 26(d)(1) permits a court to authorize early discovery if there is good cause. Further:

[i]n determining whether there is good cause to allow expedited discovery to identify anonymous internet users named as doe defendants, courts consider whether: (1) the plaintiff can 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; (2) the plaintiff has identified all previous steps taken to locate the elusive defendant; (3) the plaintiff’s suit against defendant could withstand a motion to dismiss; and (4) the plaintiff has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of process would be possible.

OpenMind Sols., Inc. v. Doe, No. 11-cv-3311-MEJ, 2011 U.S. Dist. LEXIS 116552, at *4-5 (N.D. Cal. Oct. 7, 2011).

         First, Plaintiff fails to identify “the Defendants with sufficient specificity, demonstrating that each Defendant is a real person or entity who would be subject to jurisdiction in this Court.” OpenMind Sols., Inc., 2011 U.S. Dist. LEXIS 116552, at *5. Here, Plaintiff has not explained why Defendants would be subject to the jurisdiction of this Court, as Defendants’ activities seem directed at Argentina, and Plaintiff’s harm was felt in Argentina and Latin America. The only connection Defendants have with this district is that it used domain name services from California companies, but Plaintiff provides no authority to suggest this is sufficient to create jurisdiction. But see Liberty Media Holdings, LLC v. Moniker Privacy Servs. Registraint 2125963, No. 11-62107-CV-WILLIAMS, 2011 U.S. Dist. LEXIS 164546, at *7-8 (S.D. Fla. Dec. 14, 2011) (“merely registering a domain name with a company in Florida is insufficient to support personal jurisdiction over a website’s operator [in Florida]”).

         Second, Plaintiff fails to explain what steps it has taken to locate Defendants. “This element is aimed at ensuring that plaintiffs make a good faith effort to comply with the requirements of service of process and specifically identifying defendants.” Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 579 (N.D. Cal. 1999). In its motion, Plaintiff only states that “there are no more practical measures that would permit [it] to identify the Doe and Roe Corporation Defendants, ” but does not identify what measures - if any - were taken. For example, Plaintiff is apparently able to identify Defendants as an Affiliate, and that a contract existed, giving rise to legal liability. (see Pl.’s Mot. at 3.) It is therefore not clear why Plaintiff is unable to identify Defendants based on the contract.

         Accordingly, the Court DENIES Plaintiffs ...


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