Strike 3 Holdings, LLC v. Doe

Opinion

2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 STRIKE 3 HOLDINGS, LLC, Case No.: 21cv147-AJB (MSB)

11 Plaintiff, ORDER DENYING SUBSCRIBER’S 12 v. ASSIGNED IP ADRESS 70.95.140.20 MOTION FOR RECONSIDERATION 13 JOHN DOE subscriber assigned IP address [ECF NO. 13] 70.95.140.20, 14 Defendant. 15 16 17 On March 11, 2021, Plaintiff Strike 3 Holdings, LLC filed an “Ex Parte Application 18 for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference.” (ECF No. 19 4.) Plaintiff moved to subpoena Defendant John Doe’s Internet Service Provider (“ISP”) 20 Spectrum for “limited, immediate discovery . . . so that Plaintiff may learn Defendant’s 21 identity, further investigate Defendant’s role in the infringement, and effectuate 22 service.” (ECF No. 4-1 at 7.) On April 5, 2021, the Court issued an “Order Granting 23 Plaintiff’s Ex Parte Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 24 26(f) Conference.” (ECF No. 9.) 25 On May 28, 2021, the Court accepted on discrepancy a letter from a unanimous 26 “subscriber associated with IP address (70.95.140.20)” (“the Subscriber”), dated May 20, 27 2021, and referencing the instant case name and number. (See ECF Nos. 12 & 13.) The 2 which includes my IP address (70.95.140.20).” (Id. at 1.) The Subscriber further 3 contends the following: “I object to the release by [the ISP] to the plaintiff of my 4 personal information (name and address) in the above referenced case.” (Id.) The 5 Subscriber does not otherwise provide any other facts, arguments, or legal authority. 6 (See id.) 7 On June 2, 2021, Plaintiff filed an Opposition to the Subscriber’s filing. (ECF No. 8 14.) Plaintiff argues that the Subscriber has not presented any grounds to quash the 9 subpoena, and a protective order will safeguard any privacy concerns the Subscriber 10 might have. (Id. at 4–5.) 11 Having reviewed the Subscriber’s letter, the Court construes it as a Motion for 12 Reconsideration of its April 5, 2021 “Order Granting Plaintiff’s Ex Parte Application for 13 Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference.” “The Federal 14 Rules of Civil Procedure do not expressly provide for motions for reconsideration.” 15 Soares v. Paramo, Case No.: 3:13-cv-02971-BTM-RBB, 2016 WL 3997594, at *1 (S.D. Cal. 16 July 25, 2016). Courts permit motions for reconsideration to be brought under Federal 17 Rule of Civil Procedure 59(e) or 60(b). Victorino v. FCA US LLC, Case No.: 16-cv-01617- 18 GPC-JLB, 2017 WL 4557193, at *1 (S.D. Cal. Oct. 12, 2017). A motion for reconsideration 19 is treated as a motion to alter or amend judgment under Rule 59(e) if it is filed after the 20 entry of judgment; otherwise, it is treated as a Rule 60(b) motion for relief from a 21 judgment or order. See Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 22 892, 898-99 (9th Cir. 2001); see also Hupp v. San Diego Cnty., Civil No. 12cv0492 GPC 23 (RBB), 2014 WL 2865729, at *1 (S.D. Cal. June 24, 2014) (providing that a court can 24 construe a motion for reconsideration as a motion for relief from a judgment or order 25 under Federal Rule of Civil Procedure 60.) Under Rule 60, a party can obtain relief from 26 a court order for the following reasons: (1) mistake, inadvertence, surprise, or 27 excusable neglect; (2) newly discovered evidence which by reasonable diligence could 2 judgment has been satisfied; or (6) any other reason that justifies relief. Fed. R. Civ. P. 3 60(b). 4 Further, Civil Local Rule 7.1(i)(1) provides that a party may apply for 5 reconsideration “[w]henever any motion or any application or petition for any order or 6 other relief has been made to any judge and has been refused in whole or in part . . . .” 7 S.D. Cal. Civ.L.R. 7.1(i)(1). The party seeking reconsideration must show “what new or 8 different facts and circumstances are claimed to exist which did not exist, or were not 9 shown, upon such prior application.” Id. Motions for reconsideration may be brought 10 within “twenty-eight (28) days after the entry of the ruling, order or judgment sought to 11 be reconsidered.” S.D. Cal. Civ.L.R. 7.1(i)(2). 12 “[A] motion for reconsideration is not a chance at a second bite.” Golden Bridge 13 Tech., Inc. v. Apple Inc., 758 F.3d 1362, 1369 (Fed. Cir. 2014) (quoting Senza–Gel Corp. v. 14 Seiffhart, 803 F.2d 661, 663-64 (Fed. Cir. 1986)). “The overwhelming weight of authority 15 is that the failure to file documents in an original motion or opposition does not turn the 16 late filed documents into ‘newly discovered evidence.’” School Dist. No. 1J, Multnomah 17 Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Motions to reconsider are 18 appropriate only in rare circumstances to correct manifest errors of law or fact or to 19 present newly discovered evidence. See id. Whether to grant or deny a motion for 20 reconsideration is within the sound discretion of the court. Navajo Nation v. 21 Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 22 2003). 23 In its April 5, 2021 order, the Court found that “Plaintiff has provided sufficient 24 information about infringing activity tied to Defendant’s unique IP address, the specific 25 date and time associated with the activity, and the location of the activity[,]” and 26 Plaintiff has therefore “demonstrated with sufficient specificity that Defendant is a real 27 person or entity, likely subject to the jurisdiction of this Court.” (ECF No. 9 at 7.) The 1 || serve the Defendant[,]” and “has sufficiently alleged a prima facie elements of copyright 2 || infringement, and its Complaint will likely withstand a motion to dismiss.” (Id. at 8, 10.) 3 || The Court also found that if Defendant’s ISP “provides Plaintiff with Defendant’s name 4 || and address, this will likely lead to information making it possible for Plaintiff to 5 || effectuate service on Defendant.” (Id. at 10.) The Court allowed Plaintiff to “serve a 6 ||subpoena pursuant to Federal Rule of Civil Procedure 45 on Spectrum, seeking only the 7 name and address of the subscriber assigned to the IP address 70.95.140.20.” (Id.) 8 || Notably, the Court specifically stated that Plaintiff “may not subpoena additional 9 ||information about the subscriber”; “may only use the disclosed information to protect 10 |/its copyrights in the instant litigation”; and that “[n]o other discovery is authorized at 11 || this time.” (Id. at 10-11.) 12 The Subscriber’s filing does not establish any new or different facts and 13 || circumstances that did not exist at the time the Court issued its “Order Granting 14 || Plaintiff’s Ex Parte Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 15 || 26(f) Conference.” (See ECF No. 13.) The Subscriber also does not articulate any other 16 || reasons that would justify reconsideration. (See id.) Accordingly, the Court DENIES 17 || without prejudice the Subscriber’s Motion for Reconsideration. 18 To alleviate the Subscriber’s privacy concerns, the Court ORDERS that any 19 || filing containing his or her name, address, or similar identifying information be 20 || accompanied by a motion to seal. If and when the Complaint is served and Doe 21 || Defendant enters an appearance, the Court will consider whether Defendant’s identity 22 || may be sealed in light of the applicable legal standards. 23 IT IS SO ORDERED. 24 ||Dated: June 28, 2021 _ Sx. 25 4 L <—{—\. Honorable Michael S. Berg United States Magistrate Judge 27 28