Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.162.13.187

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION — 7 — 8 STRIKE 3 HOLDINGS, LLC, Case No. 22-cv-03341-VKD 9 Plaintiff, AMENDED ORDER GRANTING 10 v. PLAINTIFF’S EX PARTE APPLICATION TO SERVE 11 JOHN DOE SUBSCRIBER ASSIGNED IP SUBPOENA; GRANTING REQUEST ADDRESS 73.162.13.187, TO EXTEND TIME; CONTINUING 12 INITIAL CASE MANAGEMENT Defendant. CONFERENCE — 13 — — 14 — This order supersedes the order at Dkt. No. 10. Plaintiff Strike 3 Holdings, LLC (“Strike — 15 — 3”) seeks leave to serve a third-party subpoena on Comcast Cable prior to a Rule 26(f) conference, — 16 — and it seeks an extension of time within which to serve the summons and complaint on defendant. — 17 — See Dkt. Nos. 9, 11. — 18 — Strike 3 has established that good cause exists for it to serve a third-party subpoena on — 19 — Comcast Cable, the above-referenced subscriber’s internet service provider. See Gillespie v. — 20 — Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); UMG Recording, Inc. v. Doe, No. C08-1193 SBA, — 21 — 2008 WL 4104214 , at *4 (N.D. Cal. Sept. 3, 2008). Strike 3 has demonstrated that (1) it can — 22 — identify the defendant with sufficient specificity such that the Court can determine that the — 23 — defendant is a real person or entity who could be sued in federal court, (2) it has identified — 24 — previous steps taken to locate the elusive defendant, (3) its action against the defendant could — 25 — withstand a motion to dismiss, and (4) there is a reasonable likelihood of being able to identify the — 26 — defendant through discovery such that service of process would be possible. See Columbia Ins. — 27 — Co. v. Seescandy.com, 185 F.R.D. 573 , 578–80 (N.D. Cal. 1999). Once Strike 3 learns the 1 defendant’s identity, it cannot rely on a bare allegation that a defendant is the registered subscriber 2 of an internet protocol address associated with infringing activity to state a plausible claim for 3 direct or contributory copyright infringement. Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142 , 4 1144 (9th Cir. 2018). However, at this stage of these proceedings, and upon the record presented, 5 Strike 3 properly may serve discovery to ascertain the defendant’s identity. See generally Glacier 6 Films (USA), Inc. v. Turchin, 896 F.3d 1033, 1036, 1038 (9th Cir. 2018) (observing that the 7 district court’s case management order permitting “limited discovery from an Internet Service 8 Provider to establish a potential infringer’s identity” was “a sensible way to manage its dockets”). 9 Accordingly, the Court grants Strike 3’s application and orders as follows: 10 1. Strike 3 may serve a Rule 45 subpoena on Comcast Cable commanding Comcast 11 Cable to provide Strike 3 with the true name and address of the subscriber to whom Comcast 12 Cable assigned IP address 73.162.13.187. Strike 3 shall attach a copy of this order to any such 13 subpoena. 14 2. Comcast Cable shall serve a copy of the subpoena and a copy of this order on the 15 subscriber within 30 days of the date of service of the subpoena on Comcast Cable. Comcast 16 Cable may serve the subscriber using any reasonable means, including written notice sent to the 17 subscriber’s last known address, transmitted either by first-class mail or via overnight service. 18 3. Strike 3 may only use the information disclosed in response to a Rule 45 subpoena 19 served on Comcast Cable for the purpose of protecting and enforcing Strike 3’s rights as set forth 20 in its complaint. 21 4. Comcast Cable may object to the Rule 45 subpoena and may also seek a protective 22 order. 23 If Comcast Cable produces information regarding the identity of the subscriber to Strike 3, 24 Strike 3 shall not publicly disclose that information absent consent of the subscriber or leave of 25 court. 26 Plaintiff requested an extension of time in which to serve the summons and complaint on 27 defendant. Dkt. No. 11. Pursuant to Rule 4(m), plaintiff shall serve the summons and complaint 1 Conference previously scheduled for September 6, 2022 is continued to January 10, 2023 at 1:30 2 p.m. 3 IT IS SO ORDERED. 4 || Dated: August 31, 2022 — 5 — . 0% □ — 6 — VIRGINIA K. DEMARCHI 7 United States Magistrate Judge — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — © — 15 — — 16 — = 17 Z 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —