Strike 3 Holdings, LLC v. Doe

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, Case No.: 20-cv-00209-BAS (JLB)

12 Plaintiff, ORDER DENYING WITHOUT 13 v. PREJUDICE PLAINTIFF’S EX PARTE MOTION FOR LEAVE TO 14 JOHN DOE, SERVE A THIRD-PARTY 15 Defendant. SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE 16 17 [ECF No. 4] 18 19 Before the Court is Plaintiff’s Ex Parte Motion for Leave to Serve a Third-Party 20 Subpoena Prior to a Rule 26(f) Conference. (ECF No. 4.) No opposition was filed, as no 21 defendant has been named or served in this case. For the reasons set forth below, Plaintiff’s 22 ex parte motion is DENIED WITHOUT PREJUDICE. 23 I. BACKGROUND 24 This is one of the numerous cases filed by Plaintiff alleging copyright infringement 25 claims against a John Doe defendant using the BitTorrent file-sharing system.1 Plaintiff 26 27 1 Since December 2019 to date, Strike 3 Holdings, LLC has filed eight separate cases 28 1 alleges that it is the copyright owner of motion pictures distributed through adult content 2 websites Blacked, Tushy, Blacked Raw, and Vixen. (ECF No. 1 ¶¶ 2–4.) Plaintiff alleges 3 that between December 3, 2018, and December 8, 2019,2 the person or entity assigned 4 Internet Protocol (“IP”) address 136.26.17.74 illegally downloaded and distributed fifty- 5 five of Plaintiff’s motion pictures through his, her, or its use of the online BitTorrent file 6 distribution network. (Id. ¶¶ 4–5, 25; ECF No. 1-2 at 1–3.) On January 30, 2020, Plaintiff 7 commenced this action against Defendant “John Doe, subscriber assigned IP address 8 136.26.17.74.” (ECF No. 1.) The Complaint alleges a single claim of copyright 9 infringement. (Id. ¶¶ 37–42.) 10 Because Defendant used the Internet to commit the alleged infringement, Plaintiff 11 alleges that it knows Defendant only by his, her, or its IP address, which was assigned to 12 Defendant by the Internet Service Provider (“ISP”), Webpass. (Id. ¶¶ 5, 14.) In the present 13 motion, Plaintiff asserts that Webpass is the owner of Defendant’s IP address, and thus, “is 14 the only party with the information necessary to identify Defendant.” (ECF No. 4-1 at 6.) 15 Plaintiff therefore seeks leave to serve a Rule 45 subpoena on Webpass requesting the name 16 and address associated with IP address 136.26.17.74. (Id. at 7.) 17 II. LEGAL STANDARD 18 Discovery is not permitted before the parties have conferred pursuant to Federal Rule 19 of Civil Procedure 26(f) unless authorized by court order. Fed. R. Civ. P. 26(d)(1). 20 “[H]owever, in rare cases, courts have made exceptions, permitting limited discovery to 21 ensue after filing of the complaint to permit the plaintiff to learn the identifying facts 22 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 23 24 25 cv-00067-LAB (LL); 20-cv-00068-BAS (JLB); 20-cv-00209-BAS (JLB); 20-cv-00308- GPC (RBB); 20-cv-00309-AJB (MDD); 20-cv-00414-BAS (KSC). 26 2 Plaintiff does not specifically allege this infringement period in the Complaint but 27 attaches as an exhibit to the Complaint a table reflecting that the subscriber assigned IP address 136.26.17.74 engaged in allegedly infringing activity between December 3, 2018, 28 1 F.R.D. 573, 577 (N.D. Cal. 1999). Requests to conduct discovery prior to a Rule 26(f) 2 conference are granted upon a showing of good cause by the moving party, which may be 3 found “where the need for expedited discovery, in consideration of the administration of 4 justice, outweighs the prejudice to the responding party.” Semitool, Inc. v. Tokyo Electron 5 Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 2002). “A district court’s decision to grant 6 discovery to determine jurisdictional facts is a matter of discretion.” Columbia Ins. Co., 7 185 F.R.D. at 578. 8 District courts in the Ninth Circuit apply a three-factor test to determine whether 9 good cause exists to allow for expedited discovery to identify Doe defendants. Id. at 578– 10 80. “First, the plaintiff should identify the missing party with sufficient specificity such 11 that the Court can determine that [the] defendant is a real person or entity who could be 12 sued in federal court.” Id. at 578. Second, the plaintiff “should identify all previous steps 13 taken to locate the elusive defendant” to ensure that the plaintiff has made a good faith 14 effort to identify and serve process on the defendant. Id. at 579. Third, the plaintiff “should 15 establish to the Court’s satisfaction that [the] plaintiff’s suit against [the] defendant could 16 withstand a motion to dismiss.” Id. “Lastly, the plaintiff should file a request for discovery 17 with the Court, along with a statement of reasons justifying the specific discovery requested 18 as well as identification of a limited number of persons or entities on whom discovery 19 process might be served and for which there is a reasonable likelihood that the discovery 20 process will lead to identifying information about [the] defendant that would make service 21 of process possible.” Id. at 580. 22 III. DISCUSSION 23 Plaintiff seeks leave to serve a Rule 45 subpoena on Webpass before the Rule 26(f) 24 conference so that Plaintiff may obtain “the true name and address of Defendant.” (ECF 25 No. 4-1 at 7.) Plaintiff represents that it “will only use this information to prosecute the 26 claims made in its Complaint,” and “[w]ithout this information, Plaintiff cannot serve 27 Defendant nor pursue this lawsuit and protect its copyrights.” (Id.) 28 /// 1 In light of certain allegations in the Complaint, the Court will first analyze the second 2 factor—whether Plaintiff has identified all steps it took to locate Defendant to ensure the 3 Court that it has made a good faith effort to identify and serve process on Defendant. See 4 Columbia Ins. Co., 185 F.R.D. at 579. The Court finds that Plaintiff has not met its burden 5 with respect to this factor. 6 In the pending motion, Plaintiff states that it has diligently attempted to locate 7 Defendant by searching for Defendant’s IP address using online search engines and 8 “various web search tools.” (ECF No. 4-1 at 12–13.) Plaintiff further states that it has also 9 “review[ed] numerous sources of authority,” such as “legislative reports, agency websites, 10 [and] informational technology guides” regarding whether it is possible to identify such a 11 defendant by other means and has “discussed the issue at length with computer 12 investigators and cyber security consultants.” (Id. at 13.) Plaintiff concludes that it cannot 13 determine any other means of obtaining Defendant’s identity other than through 14 subpoenaing the information from Defendant’s ISP. 15 However, Plaintiff makes no reference in its motion to the following allegation in its 16 Complaint: 17 In an effort to conserve Federal judicial resources, Strike 3 originally moved 18 to discover Defendant’s identity utilizing a state court procedure in Florida 19 where Strike 3’s infringement detection servers are located. Defendant objected asserting that the action is more properly litigated in the federal court 20 of his or her domicile. Because Plaintiff is amenable to litigating the matter 21 in either forum, this suit was initiated[.] 22 (ECF No. 1 ¶ 6.) A fair reading of this allegation suggests that Defendant appeared in a 23 prior action filed by Plaintiff concerning the infringement alleged herein and identified the 24 Southern District of California as his, her, or its domicile. If Defendant did make such an 25 appearance, it seems to the Court that Plaintiff is aware of Defendant’s identity or, at a 26 minimum, may have an available mechanism to determine Defendant’s identity. As such, 27 based on this record, the Court cannot conclude that the “need for expedited discovery, in 28 consideration of the administration of justice, outweighs the prejudice to the responding 1 || party.” Semitool, Inc., 208 F.R.D. at 275-76. 2 ||IV. CONCLUSION 3 For the reasons stated above, the Court DENIES Plaintiff's ex parte motion. This 4 ||denial is WITHOUT PREJUDICE to Plaintiff re-filing its motion if it can resolve the 5 || discrepancy between the allegations in its Complaint and the present motion. 6 IT IS SO ORDERED. 7 Dated: March 11, 2020 . 8 pibedodt on. Jill L. Burkhardt 7 nited States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28