Strike 3 Holdings, LLC v. Doe ( 2021 )

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.: 21-cv-889-DMS (DEB) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD- 14 JOHN DOE, subscriber assigned IP PARTY SUBPOENA PRIOR TO A address 99.184.254.136, 15 RULE 26(f) CONFERENCE Defendant. 16 [DKT. NO. 4] 17 18 Before the Court is Plaintiff’s Ex Parte Application for Leave to Serve a Third- 19 Party Subpoena Prior to Rule 26(f) Conference. Dkt. No. 4. Plaintiff has sued only a 20 fictitious “Doe” defendant; thus, no party has filed an opposition to Plaintiff’s Application. 21 For the reasons set forth below, the Court GRANTS Plaintiff’s Application. 22 I. BACKGROUND 23 On May 7, 2021, Plaintiff filed a Complaint against Defendant “John Doe,” who 24 Plaintiff alleges is a subscriber of AT&T U-verse and assigned Internet Protocol (“IP”) 25 address 99.184.254.136. Dkt No. 1 at 2. Plaintiff alleges it “is the owner of award-winning, 26 critically acclaimed adult motion pictures.” Id. at 1. Plaintiff asserts Defendant is 27 committing “rampant and wholesale copyright infringement” by downloading, recording, 28 1 and distributing copies of Plaintiff’s copyrighted motion pictures without authorization 2 using the BitTorrent file distribution network. Id. at 2, 4–6. 3 On May 19, 2021, Plaintiff filed the instant Application. Dkt. No. 4. Plaintiff seeks 4 an order from the Court allowing it to serve a subpoena pursuant to Federal Rule of Civil 5 Procedure 45 on Internet Service Provider (“ISP”) AT&T U-verse seeking Defendant’s 6 “true name and address” to “prosecute the claims made in its Complaint.” Dkt. No. 4-1 7 at 8.1 8 II. LEGAL STANDARD 9 The Court may grant a request for early or expedited discovery upon a showing of 10 good cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–76 (N.D. 11 Cal. 2002) (applying “the conventional standard of good cause in evaluating Plaintiff’s 12 request for expedited discovery”). To determine whether “good cause” exists to permit 13 expedited discovery to identify Doe defendants, the Court considers whether a plaintiff: 14 (1) “identif[ies] the missing party with sufficient specificity such that the Court can 15 determine that the defendant is a real person or entity who could be sued in federal court”; 16 (2) “identif[ies] all previous steps taken to locate the elusive defendant” to ensure plaintiff 17 has made a good faith effort to identify the defendant; and (3) “establish[es] to the Court’s 18 satisfaction that plaintiff’s suit against defendant could withstand a motion to dismiss.” 19 Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999). 20 Additionally, the plaintiff should demonstrate the discovery will likely lead to identifying 21 information that will permit service of process. Id. at 580. 22 “A district court’s decision to grant discovery to determine jurisdictional facts is a 23 matter of discretion.” Id. at 578 (citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 24 F.2d 406, 430 n.24 (9th Cir. 1977)). 25 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. 28 1 III. DISCUSSION 2 Plaintiff has shown in affidavits attached to its Application that Defendant is real 3 and can be sued and has—through the identification of the unique IP address, the dates and 4 times 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. 4-2 at 22, 26; 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 7; see also Malibu Media, LLC, 2016 WL 13 1618227 (relying on a plaintiff’s efforts to locate IP address and declaration stating, “the 14 only entity able to correlate an IP address to a specific individual at a given date and time 15 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. No. 19 1-2. 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 22 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 1 || 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. 4-2 at 22, 26. Accordingly, Plaintiff has established good 9 ||cause and may serve a subpoena upon the AT&T U-verse ISP. 10 IV. CONCLUSION 11 For the reasons set forth above, Plaintiff's Application (Dkt. No. 4) is GRANTED. 12 || Plaintiff may serve a subpoena on the ISP seeking only the true name and address of the 13 individual identified. Plaintiff may not seek any further information or propound any other 14 || discovery without leave of Court, and may not use the information gathered through the 15 ||subpoena for any purpose except to identify and serve the Doe defendant in the instant 16 || litigation. Ifthe ISP seeks to quash the subpoena, it must do so before the subpoena’s return 17 which must be at least 45 days from service. In the event the subpoena is challenged, 18 || the ISP must preserve the data sought until the dispute is adjudicated. Plaintiff must attach 19 ||a copy of this order to the subpoena. 20 IT IS SO ORDERED. 21 ||Dated: May 26, 2021 — ‘ Dok PT 73 Honorable Daniel E. Butcher United States Magistrate Judge 24 25 26 27 28