Strike 3 Holdings, LLC v. Doe

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 STRIKE 3 HOLDINGS, LLC, Case No.: 23-CV-00287-BAS-DEB 12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. EX PARTE MOTION FOR LEAVE TO SERVE A THIRD-PARTY 14 JOHN DOE, subscriber assigned IP SUBPOENA PRIOR TO A RULE address 174.65.160.55, 15 26(f) CONFERENCE Defendant. [16] [DKT. NO. 4] [17] 18 Before the Court is Plaintiff’s Ex Parte Motion for Leave to Serve a Third-Party 19 Subpoena Prior to Rule 26(f) Conference. Dkt. No. 4. Plaintiff has sued only a fictitious 20 “Doe” defendant; thus, no party has filed an opposition to Plaintiff’s Motion. For the 21 reasons set forth below, the Court GRANTS Plaintiff’s Motion. 22 I. BACKGROUND 23 On February 14, 2023, Plaintiff filed a Complaint against Defendant “John Doe” 24 who Plaintiff alleges is a subscriber of Cox Communications and assigned Internet Protocol 25 (“IP”) address 174.65.160.55. Dkt No. 1 at 2.1 Plaintiff alleges it “is the owner of award26 [27] 1 When referencing page numbers for documents filed with the Court, the Court’s [28] 1 winning, critically acclaimed adult motion pictures.” Id. at 1. Plaintiff asserts Defendant is 2 committing “rampant and wholesale copyright infringement” by downloading and 3 distributing copies of Plaintiff’s copyrighted motion pictures without authorization using 4 the BitTorrent file distribution network. Id. at 2, 4–6. 5 On February 21, 2023, Plaintiff filed the instant Motion. Dkt. No. 4. Plaintiff seeks 6 an order from the Court allowing it to serve a subpoena pursuant to Federal Rule of Civil 7 Procedure 45 on Internet Service Provider (“ISP”) Cox Communications seeking 8 Defendant’s “true name and address” so that Plaintiff can properly serve a summons upon 9 the Defendant and “prosecute the claims made in its Complaint.” Dkt. No. 4–1 at 8. 10 II. LEGAL STANDARD 11 The Court may grant a request for early or expedited discovery upon a showing of 12 good cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273 , 275–76 (N.D. 13 Cal. 2002 ) (applying “the conventional standard of good cause in evaluating Plaintiff’s 14 request for expedited discovery”). To determine whether “good cause” exists to permit 15 expedited discovery to identify Doe defendants, the Court considers whether a plaintiff: 16 (1) “identif[ies] the missing party with sufficient specificity such that the Court can 17 determine that the defendant is a real person or entity who could be sued in federal court”; 18 (2) “identif[ies] all previous steps taken to locate the elusive defendant” to ensure plaintiff 19 has made a good faith effort to identify the defendant; and (3) “establish[es] to the Court’s 20 satisfaction that plaintiff’s suit against defendant could withstand a motion to dismiss.” 21 Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 , 578–80 (N.D. Cal. 1999). 22 Additionally, the plaintiff should demonstrate the discovery will likely lead to identifying 23 information that will permit service of process. Id. at 580 . 24 “A district court’s decision to grant discovery to determine jurisdictional facts is a 25 matter of discretion.” Id. at 578 (citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 26 F.2d 406 , 430 n.24 (9th Cir. 1977)). 27 / / 28 / / 1 III. DISCUSSION 2 Plaintiff has shown in affidavits attached to its Motion that Defendant is real and can 3 be sued and has—through the identification of the unique IP address, the dates and times 4 of the alleged connections, and the name of the ISP—identified Defendant with the 5 requisite specificity to justify an early subpoena. See Dkt. No. 4-1 at 20–22; see also Malibu 6 Media, LLC v. Doe, No. 16-cv-444-GPC-BGS, 2016 WL 1618227 , at *3–4 (S.D. Cal. 7 Apr. 22, 2016) (“Based on . . . (1) the specific subscriber IP address at issue, (2) the dates 8 and times of connection, and (3) the name of internet service provider for the IP address 9 located, the Court finds the subscriber/doe defendant has been identified with sufficient 10 specificity.”). 11 Plaintiff also established it cannot identify the Defendant without the requested 12 information from the ISP. See Dkt. No. 4-1 at 8; see also Malibu Media, LLC, 2016 WL 13 1618227, at *3 (relying on a plaintiff’s efforts to locate IP address and declaration stating, 14 “the only entity able to correlate an IP address to a specific individual at a given date and 15 time is the Internet Service Provider” to establish “a good faith effort to identify the 16 subscriber/doe defendant.”).2 17 Moreover, Plaintiff’s Complaint alleges Plaintiff owns the copyrights at issue and 18 specifically lists the registration numbers of the allegedly infringed works. See Dkt. Nos. 119 2, 1–3. Thus, although the Court is not conclusively deciding the matter, it appears the 20 Complaint could withstand a motion to dismiss. See Malibu Media, LLC, 2016 WL 21 1618227, at *4 (“Plaintiff’s complaint lists the copyrighted movie titles which it owns and [23] 24 2 The Court also considers the requirements of the Cable Privacy Act, 47 U.S.C. 25 § 551. The Act generally prohibits cable operators from disclosing personally identifiable information regarding subscribers without the prior written or electronic consent of the [26] subscriber. 47 U.S.C. § 551 (c)(1). A cable operator, however, may disclose such 27 information if the disclosure is made pursuant to a court order and the cable operator provides the subscriber with notice of the order. 47 U.S.C. § 551 (c)(2)(B). The ISP that [28] | || has registered, with a listing of the copyright registration numbers of the allegedly infringed 2 || works at issue... . The plaintiff has also demonstrated . . . that an ISP maintains the 3 || subscriber records that contain the name and address information they seek. Accordingly, 4 || Plaintiff has made a prima facie showing of copyright ownership and a violation of the 5 || copyright that could survive a motion to dismiss.’’) (internal citations omitted). 6 Finally, Plaintiff has shown the requested discovery will lead to identifying 7 information, as it has identified a unique IP address that an ISP can tie, at least potentially, 8 ||to a specific individual. Dkt. No. 4-1 at 12, 20-22. Accordingly, Plaintiff has established 9 || good cause and may serve a subpoena upon the Cox Communications ISP. 10 IV. CONCLUSION 11 For the reasons set forth above, Plaintiff's Motion is GRANTED. Plaintiff may 12 ||serve a subpoena on the ISP seeking only the true name and address of the individual 13 |/identified. Plaintiff may not seek any further information or propound any other discovery 14 || without leave of Court and may not use the information gathered through the subpoena for 15 || any purpose except to identify and serve the Doe defendant in the instant litigation. If the 16 ||/ISP seeks to quash the subpoena, it must do so before the subpoena’s return date, which 17 || must be at least 45 days from service. In the event the subpoena is challenged, the ISP must 18 || preserve the data sought until the dispute is adjudicated. Plaintiff must attach a copy of this 19 || order to the subpoena. 20 IT IS SO ORDERED. [21] 22 Dated: February 23, 2023 — Dando oa A Honorable Daniel E. Butcher United States Magistrate Judge