1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 STRIKE 3 HOLDINGS, LLC, Case No. 21-cv-03946-VKD

9 Plaintiff, ORDER GRANTING PLAINTIFF’S 10 v. MOTION FOR LEAVE TO SERVE SUBPOENA 11 JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 73.241.158.210, Re: Dkt. No. 8 12 Defendant. 13 14 Plaintiff Strike 3 Holdings, LLC (“Strike 3”) seeks leave to serve a third-party subpoena on 15 Comcast Cable prior to a Rule 26(f) conference. 16 Strike 3 has established that good cause exists for it to serve a third-party subpoena on 17 Comcast Cable, the above-referenced subscriber’s internet service provider. See Gillespie v. 18 Civiletti,

(9th Cir. 1980); UMG Recording, Inc. v. Doe, No. C08-1193 SBA, 19

, at *4 (N.D. Cal. Sept. 3, 2008). Strike 3 has demonstrated that (1) it can 20 identify the defendant with sufficient specificity such that the Court can determine that the 21 defendant is a real person or entity who could be sued in federal court, (2) it has identified previous 22 steps taken to locate the elusive defendant, (3) its action against the defendant could withstand a 23 motion to dismiss, and (4) there is a reasonable likelihood of being able to identify the defendant 24 through discovery such that service of process would be possible. See Columbia Ins. Co. v. 25 Seescandy.com,

(N.D. Cal. 1999). Additionally, Strike 3’s application 26 indicates that Strike 3 has satisfied the registration requirements under 17 U.S.C. 27 § 411(a) for commencing a copyright infringement lawsuit. Fourth Estate Public Benefit Corp. v. 1 cannot rely on a bare allegation that a defendant is the registered subscriber of an internet protocol 2 address associated with infringing activity to state a plausible claim for direct or contributory 3 copyright infringement. Cobbler Nevada, LLC v. Gonzales,

(9th Cir. 2018). 4 || However, at this stage of these proceedings, and upon the record presented, Strike 3 properly may 5 serve discovery to ascertain the defendant’s identity. See generally Glacier Films (USA), Inc. v. 6 || Turchin,

(9th Cir. 2018) (observing that the district court’s case 7 || management order permitting “limited discovery from an Internet Service Provider to establish a 8 || potential infringer’s identity” was “a sensible way to manage its dockets... .”). 9 Accordingly, the Court grants Strike 3’s application and orders as follows: 10 1. Strike 3 may serve a Rule 45 subpoena on Comcast Cable commanding Comcast 11 Cable to provide Strike 3 with the true name and address of the subscriber to whom Comcast Cable 12 assigned IP address 73.241.158.210. Strike 3 shall attach a copy of this order to any such subpoen: 5 13 2. Comcast Cable shall serve a copy of the subpoena and a copy of this order on the 14 subscriber within 30 days of the date of service of the subpoena on Comcast Cable. Comcast Cabl 3 15 may serve the subscriber using any reasonable means, including written notice sent to the a 16 || subscriber’s last known address, transmitted either by first-class mail or via overnight service. 3 17 3. Strike 3 may only use the information disclosed in response to a Rule 45 subpoena 18 || served on Comcast Cable for the purpose of protecting and enforcing Strike 3’s rights as set forth i 19 its complaint. 20 4. Comcast Cable may object to the Rule 45 subpoena, and may also seek a protective 21 order. 22 If Comcast Cable produces information regarding the identity of the subscriber to Strike 3, 23 Strike 3 shall not publicly disclose that information absent consent of the subscriber or leave of 24 court. 25 IT IS SO ORDERED. 26 Dated: June 16, 2021

28 VIRGINIA K. DEMARCHI United States Magistrate Judge