United States District Court, N.D. California
ORDER GRANTING PLAINTIFF'S RENEWED EX PARTE
MOTION FOR EARLY DISCOVERY RE: DKT. NO. 10
A. WESTMORE, UNITED STATES MAGISTRATE JUDGE.
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.)
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.)
August 29, 2019, Plaintiff filed an ex parte motion for early
discovery, seeking the true identities of Defendants from
Dynadot LLC (“Dynadot”) and Cloudflare, Inc.
(“Cloudflare”), California corporations who
provide domain name services. (Pl.'s Mot. at 2, Dkt. No.
5.) Plaintiff believes that Defendants are Affiliates.
(Id. at 3.)
September 24, 2019, the Court denied Plaintiff's motion
without prejudice. (Ord., Dkt. No. 8.) The Court explained
that in general, Federal Rule of Civil Procedure 26(d)(1)
permits a court to authorize early discovery if there is good
cause. (Id. at 2.) 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.
(Id. (internal quotation omitted).) The Court found,
however, that Plaintiff had failed to explain how Defendants
would be subject to the jurisdiction of this Court, as well
as failed to identify what steps it had taken to locate
Defendants. (Id. at 2-3.)
October 25, 2019, Plaintiff filed a renewed ex parte motion
for early discovery. (Pl.'s Renewed Mot., Dkt. No. 10.)
Having reviewed the motion, the Court GRANTS Plaintiff's
motion for early discovery.
Plaintiff has shown that Defendants are real persons or
entities which may be sued in this Court. Defendants
contracted with Dynadot and Cloudflare to obtain domain name
selection clauses in this district. (Pl.'s Renewed Mot.
at 10.) Specifically, Dynadot's Service Agreement states:
“For the adjudication of any disputes brought by a
third party against You concerning or arising from Your use
of a domain name registered with Dynadot . . . You . . .
agree to submit to subject matter jurisdiction, personal
jurisdiction, and venue of the United States District Court
for the Northern District of California.” (Pl.'s
Renewed Mot., Exh. 2 at 1.) Likewise, the Cloudflare Terms of
Use state: “To the extent that any lawsuit or court
proceeding is permitted hereunder, you . . . agree to submit
to the personal and exclusive jurisdiction of the state and
federal courts located within San Francisco County,
California for the purpose of litigating all such
disputes.” (Pl.'s Renewed Mot., Exh. 4 at 3.) The
Ninth Circuit has found that “a party has consented to
personal jurisdiction when the party took some kind of
affirmative act [such as] accepting a forum selection clause
. . . .” SEC v. Ross, 504 F.3d 1130, 1149 (9th
Cir. 2007). Moreover, “courts have found personal
jurisdiction based on consent to forum selection clauses
Twitch Interactive, Inc. v. Johnston, No.
16-cv-3404-BLF, 2018 U.S. Dist. LEXIS 184300, at *10 (N.D.
Cal. Jan. 22, 2018).
Plaintiff has identified steps taken to identify Defendants.
Although Plaintiff contacted its Networks to learn the
identities of Defendants, it was not able to learn any
information from them. (Martinez Decl. ¶ 16, Dkt. No.
10-1.) Plaintiff also performed a search for the identities
of the registrants of “MyPromos.vip” and
“SuperPromos.top, ” but the domain privacy
service obscures their identifying information. (Martinez
Decl. ¶ 18.)
at least some of Plaintiff's claims can survive a motion
to dismiss. For example, Plaintiff brings a breach of
contract claim. Plaintiff's contracts prohibit Networks
and Affiliates from making misleading or fraudulent
statements as part of a marketing campaign. (Compl. ¶
32.) Defendants, however, made fraudulent representations in
signing individuals up for Plaintiff's services, causing
reputational harm and lost revenue. (Compl. ¶¶
there is a reasonable likelihood that the discovery sought
will allow Plaintiff to identify Defendants, thus making
service possible. In registering a domain name, Defendants
would have been required to provide identifying information,
including contact information. (Pl.'s Renewed Mot. at
the Court finds that Plaintiff has made a showing of good
cause, and GRANTS Plaintiff's renewed motion for early
discovery. Plaintiff may serve subpoenas on Dynadot and
Cloudflare for the limited purpose of identifying Defendants.
Dynadot and Cloudflare will have 30 days
from the date of service upon it to serve each of its
subscriber(s) whose identifying information is sought with a
copy of the subpoena and a copy of this order. Dynadot and
Cloudflare may serve the subscribers using any reasonable
means, including written notice sent to the subscriber's
last known address, transmitted either by first-class mail or
via overnight service.
and Cloudflare and each subscriber shall have 30
days from the date of service upon him, her, or it
to file any motions in this court contesting the subpoena
(including a motion to quash or modify the subpoena). If the
30-day period lapses without the subscriber contesting the
subpoena, Dynadot and Cloudflare shall have 10