Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 76.226.80.185

— 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-04570-VKD 9 Plaintiff, ORDER GRANTING EX PARTE 10 v. MOTION FOR LEAVE TO SERVE SUBPOENA 11 JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 76.226.80.185, Re: Dkt. No. 8 — 12 — Defendant. — 13 — 14 Plaintiff Strike 3 Holdings, LLC (“Strike 3”) seeks leave to serve a third-party subpoena on 15 AT&T U-verse (“AT&T”) prior to a Rule 26(f) conference. 16 Strike 3 has established that good cause exists for it to serve a third-party subpoena on 17 AT&T, the above-referenced subscriber’s internet service provider. See Gillespie v. Civiletti, 629 18 F.2d 637, 642 (9th Cir. 1980); UMG Recording, Inc. v. Doe, No. C08-1193 SBA, 2008 WL 19 4104214, at *4 (N.D. Cal. Sept. 3, 2008). Strike 3 has demonstrated that (1) it can identify the 20 defendant with sufficient specificity such that the Court can determine that the defendant is a real 21 person or entity who could be sued in federal court, (2) it has identified previous steps taken to 22 locate the elusive defendant, (3) its action against the defendant could withstand a motion to 23 dismiss, and (4) there is a reasonable likelihood of being able to identify the defendant through 24 discovery such that service of process would be possible. See Columbia Ins. Co. v. 25 Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). Additionally, Strike 3’s application 26 indicates that Strike 3 has satisfied the registration requirements under 17 U.S.C. § 411 (a) for 27 commencing a copyright infringement lawsuit. Fourth Estate Public Benefit Corp. v. Wall1 rely on a bare allegation that a defendant is the registered subscriber of an internet protocol 2 address associated with infringing activity to state a plausible claim for direct or contributory 3 copyright infringement. Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142, 1144 (9th Cir. 2018). 4 || However, at this stage of these proceedings, and upon the record presented, Strike 3 properly may 5 serve discovery to ascertain the defendant’s identity. See generally Glacier Films (USA), Inc. v. 6 Turchin, 896 F.3d 1033, 1036, 1038 (9th Cir. 2018) (observing that the district court’s case 7 || management order permitting “limited discovery from an Internet Service Provider to establish a 8 || 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 AT&T commanding AT&T to provide 11 Strike 3 with the true name and address of the subscriber to whom AT&T assigned IP address 12 || 76.226.80.185. Strike 3 shall attach a copy of this order to any such subpoena. 5 13 2. AT&T shall serve a copy of the subpoena and a copy of this order on the subscriber 14 || within 30 days of the date of service of the subpoena on AT&T. AT&T may serve the subscriber 3 15 || using any reasonable means, including written notice sent to the subscriber’s last known address, 16 || transmitted either by first-class mail or via overnight service. 3 17 3. Strike 3 may only use the information disclosed in response to a Rule 45 subpoena 18 served on AT&T for the purpose of protecting and enforcing Strike 3’s rights as set forth in its 19 complaint. 20 4. AT&T may object to the Rule 45 subpoena, and may also seek a protective order. 21 If AT&T produces information regarding the identity of the subscriber to Strike 3, Strike 3 22 shall not publicly disclose that information absent consent of the subscriber or leave of court. 23 IT IS SO ORDERED. 24 || Dated: September 6, 2022 — 25 — 06 Unigiiian®, LaMarche 7 VIRGINIA K. DEMARCH United States Magistrate Judge — 28 —