Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 99.47.71.147

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 STRIKE 3 HOLDINGS, LLC, Case No. 22-cv-04614-VKD 8 Plaintiff, ORDER GRANTING EX PARTE 9 v. MOTION TO SERVE SUBPOENA 10 JOHN DOE SUBSCRIBER ASSIGNED IP Re: Dkt. No. 9 ADDRESS 99.47.71.147, — 11 — Defendant. — 12 — 13 Plaintiff Strike 3 Holdings, LLC (“Strike 3”) seeks leave to serve a third-party subpoena on 14 AT&T U-verse (“AT&T”) prior to a Rule 26(f) conference. 15 Strike 3 has established that good cause exists for it to serve a third-party subpoena on 16 AT&T, the above-referenced subscriber’s internet service provider. See Gillespie v. Civiletti, 629 17 F.2d 637, 642 (9th Cir. 1980); UMG Recording, Inc. v. Doe, No. C08-1193 SBA, 2008 WL 18 4104214, at *4 (N.D. Cal. Sept. 3, 2008). Strike 3 has demonstrated that (1) it can identify the 19 defendant with sufficient specificity such that the Court can determine that the defendant is a real 20 person or entity who could be sued in federal court, (2) it has identified previous steps taken to 21 locate the elusive defendant, (3) its action against the defendant could withstand a motion to 22 dismiss, and (4) there is a reasonable likelihood of being able to identify the defendant through 23 discovery such that service of process would be possible. See Columbia Ins. Co. v. 24 Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). Additionally, Strike 3’s application 25 indicates that Strike 3 has satisfied the registration requirements under 17 U.S.C. § 411 (a) for 26 commencing a copyright infringement lawsuit. Fourth Estate Public Benefit Corp. v. Wall27 Street.com, LLC, 139 S. Ct. 881 (2019). Once Strike 3 learns the defendant’s identity, it cannot 1 address associated with infringing activity to state a plausible claim for direct or contributory 2 || copyright infringement. Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142, 1144 (9th Cir. 2018). 3 However, at this stage of these proceedings, and upon the record presented, Strike 3 properly may 4 || serve discovery to ascertain the defendant’s identity. See generally Glacier Films (USA), Inc. v. 5 Turchin, 896 F.3d 1033, 1036, 1038 (9th Cir. 2018) (observing that the district court’s case 6 || management order permitting “limited discovery from an Internet Service Provider to establish a 7 || potential infringer’s identity” was “a sensible way to manage its dockets ... .”). 8 Accordingly, the Court grants Strike 3’s application and orders as follows: 9 1. Strike 3 may serve a Rule 45 subpoena on AT&T commanding AT&T to provide 10 || Strike 3 with the true name and address of the subscriber to whom AT&T assigned IP address 11 99.47.71.147. Strike 3 shall attach a copy of this order to any such subpoena. 12 2. AT&T shall serve a copy of the subpoena and a copy of this order on the subscriber 5 13 within 30 days of the date of service of the subpoena on AT&T. AT&T may serve the subscriber 14 || using any reasonable means, including written notice sent to the subscriber’s last known address, 3 15 transmitted either by first-class mail or via overnight service. 16 3. Strike 3 may only use the information disclosed in response to a Rule 45 subpoena 3 17 served on AT&T for the purpose of protecting and enforcing Strike 3’s rights as set forth in its 18 complaint. 19 4. AT&T may object to the Rule 45 subpoena, and may also seek a protective order. 20 If AT&T produces information regarding the identity of the subscriber to Strike 3, Strike 3 21 shall not publicly disclose that information absent consent of the subscriber or leave of court. 22 IT IS SO ORDERED. 23 Dated: September 6, 2022 — 24 — 6 VIRGINIA K. DEMARCHI United States Magistrate Judge — 27 — — 28 —