Strike 3 Holdings, LLC v. Doe

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] STRIKE 3 HOLDINGS, LLC, Case NO.: 23-cv-2346-RBM-DEB [11] Plaintiff, ORDER GRANTING 12 PLAINTIFF’S EX PARTE vs. MOTION FOR LEAVE TO 13 SERVE A THIRD-PARTY JOHN DOE subscriber assigned IP SUBPOENA PRIOR TO A RULE 14 address 108.243.149.96, 26(f) CONFERENCE 15 Defendant. [DKT. NO. 4] [16] 17 Before the Court is Plaintiff’s Ex Parte Motion for Leave to Serve a Third18 Party Subpoena Prior to Rule 26(f) Conference. Dkt. No. 4.1 Plaintiff has sued only 19 a fictitious “Doe” defendant; thus, no party has filed an opposition to Plaintiff’s 20 Motion. For the reasons set forth below, the Court GRANTS Plaintiff’s Motion. 21 I. BACKGROUND 22 On December 27, 2023, Plaintiff filed a Complaint against Defendant “John 23 Doe” who Plaintiff alleges is a subscriber of AT&T Internet and assigned Internet 24 Protocol (“IP”) address 108.243.149.96. Dkt No. 1 at 2. Plaintiff alleges it “is the 25 owner of award-winning, critically acclaimed adult motion pictures.” Id. at 1. [26] 27 1 When referencing page numbers for documents filed with the Court, the Court’s citation refers to the page numbers assigned by the Court’s CM-ECF system. 1 Plaintiff asserts Defendant is committing “rampant and wholesale copyright 2 infringement” by downloading and distributing copies of Plaintiff’s copyrighted 3 motion pictures without authorization using the BitTorrent file distribution network. 4 Id. at 2, 4–6. 5 On January 11, 2024, Plaintiff filed the instant Motion. Dkt. No. 4. Plaintiff 6 seeks an order from the Court allowing it to serve a subpoena pursuant to Federal 7 Rule of Civil Procedure 45 on Internet Service Provider (“ISP”) AT&T Internet 8 seeking Defendant’s “true name and address” so that Plaintiff can properly serve a 9 summons upon the Defendant and “prosecute the claims made in its Complaint.” 10 Dkt. No. 4–1 at 8. 11 II. LEGAL STANDARD [12] The Court may grant a request for early or expedited discovery upon a [13] showing of good cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 14 273 , 275–76 (N.D. Cal. 2002) (applying “the conventional standard of good cause [15] in evaluating Plaintiff’s request for expedited discovery”). To determine whether [16] “good cause” exists to permit expedited discovery to identify Doe defendants, the [17] Court considers whether a plaintiff: (1) “identif[ies] the missing party with [18] sufficient specificity such that the Court can determine that the defendant is a real [19] person or entity who could be sued in federal court”; (2) “identif[ies] all previous [20] steps taken to locate the elusive defendant” to ensure plaintiff has made a good faith [21] effort to identify the defendant; and (3) “establish[es] to the Court’s satisfaction that [22] plaintiff’s suit against defendant could withstand a motion to dismiss.” Columbia [23] Ins. Co. v. Seescandy.com, 185 F.R.D. 573 , 578–80 (N.D. Cal. 1999). Additionally, [24] the plaintiff should demonstrate the discovery will likely lead to identifying [25] information that will permit service of process. Id. at 580 . [26] // [27] // 1 “A district court’s decision to grant discovery to determine jurisdictional 2 facts is a matter of discretion.” Id. at 578 (citing Wells Fargo & Co. v. Wells Fargo 3 Express Co., 556 F.2d 406 , 430 n.24 (9th Cir. 1977)). 4 III. DISCUSSION [5] Plaintiff has shown in affidavits attached to its Motion that Defendant is real [6] and can be sued and has—through the identification of the unique IP address, the [7] dates and times of the alleged connections, and the name of the ISP—identified [8] Defendant with the requisite specificity to justify an early subpoena. See Dkt. No. [9] 4-2 at 10–15; see also Malibu Media, LLC v. Doe, No. 16-cv-444-GPC-BGS, 2016 10 WL 1618227 , at *3–4 (S.D. Cal. Apr. 22, 2016) (“Based on . . . (1) the specific [11] subscriber IP address at issue, (2) the dates and times of connection, and (3) the [12] name of internet service provider for the IP address located, the Court finds the [13] subscriber/doe defendant has been identified with sufficient specificity.”). [14] Plaintiff also established it cannot identify the Defendant without the [15] requested information from the ISP. See Dkt. No. 4-1 at 8; see also Malibu Media, [16] LLC, 2016 WL 1618227 , at *3 (relying on a plaintiff’s efforts to locate IP address [17] and declaration stating, “the only entity able to correlate an IP address to a specific [18] individual at a given date and time is the Internet Service Provider” to establish “a [19] good faith effort to identify the subscriber/doe defendant.”). [20] Moreover, Plaintiff’s Complaint alleges Plaintiff owns the copyrights at issue [21] and specifically lists the registration numbers of the allegedly infringed works. See [22] Dkt. No. 1-2. Thus, although the Court is not conclusively deciding the matter, it [23] appears the Complaint could withstand a motion to dismiss. See Malibu Media, [24] LLC, 2016 WL 1618227 , at *4 (“Plaintiff’s complaint lists the copyrighted movie [25] titles which it owns and has registered, with a listing of the copyright registration [26] numbers of the allegedly infringed works at issue. . . . The plaintiff has also [27] demonstrated . . . that an ISP maintains the subscriber records that contain the name 1 ||and address information they seek. Accordingly, Plaintiff has made a prima facie 2 || showing of copyright ownership and a violation of the copyright that could survive 3 ||a motion to dismiss.”) (internal citations omitted). 4 Finally, Plaintiff has shown the requested discovery will lead to identifying 5 ||information, as it has identified a unique IP address that an ISP can tie, at least 6 || potentially, to a specific individual. Dkt. No. 4-1 at 9, 12, 29. Accordingly, Plaintiff 7 ||has established good cause and may serve a subpoena upon AT&T Internet. IV. CONCLUSION For the reasons set forth above, Plaintiff's Motion is GRANTED. Plaintiff 1 || may Serve a subpoena on the ISP seeking only the true name and address of the D individual identified. Plaintiff may not seek any further information or propound 13 |] other discovery without leave of Court and may not use the information 4 gathered through the subpoena for any purpose except to identify and serve the Doe 13 defendant in the instant litigation. If the ISP seeks to quash the subpoena, it must 6 do so before the subpoena’s return date, which must allow for at least 45 days from service to production. In the event the subpoena is challenged, the ISP must preserve 18 the data sought until the dispute is adjudicated. Plaintiff must attach a copy of this 19 order to the subpoena. 50 IT IS SO ORDERED. Dated: January 16, 2024 —~ 22 Daniel E. Butcher 3 United States Magistrate Judge