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.: 22-cv-00124-JO-KSC

12 Plaintiff, ORDER GRANTING EX PARTE 13 v. APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY 14 JOHN DOE subscriber assigned IP SUBPOENA PRIOR TO A RULE address 104.188.23.251, 15 26(f) CONFERENCE Defendant. 16 [Doc. No. 4] 17 18 Before the Court is plaintiff Strike 3 Holdings, LLC’s (“plaintiff”) Ex Parte 19 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference. 20 Doc. No. 4. For the reasons stated below, plaintiff’s application is GRANTED. 21 I. BACKGROUND 22 On January 28, 2022, plaintiff filed a Complaint against defendant John Doe 23 subscriber assigned IP address 104.188.23.251 (“defendant”), asserting a claim for direct 24 copyright infringement. See Doc. No. 1. Plaintiff alleges it is the owner of certain adult- 25 content films that defendant is “stealing … on a grand scale” by downloading these films 26 and distributing them to others without plaintiff’s authorization, permission or consent. Id. 27 at ¶¶ 1-4, 51. Defendant’s identity is known to plaintiff only by defendant’s IP address: 28 104.188.23.251. Id. at ¶ 13; Doc. No. 4-1 at 7. Plaintiff therefore seeks the Court’s leave 1 to serve a subpoena pursuant to Fed. R. Civ. P. 45 on defendant’s internet service provider 2 (“ISP”), AT&T U-Verse, to learn defendant’s identity. Id. at 7. Plaintiff asserts that 3 “[w]ithout this information,” it cannot serve defendant, “nor pursue this lawsuit and protect 4 its copyrights.” Id. at 8. 5 II. LEGAL STANDARDS 6 Federal Rule of Civil Procedure 26 provides that “a party may not seek discovery 7 from another source before the parties have conferred as required by Rule 26(f)” unless 8 such discovery is “authorized” by the Court. Fed. R. Civ. P. 26(d)(1). “[I]n rare cases,” 9 however, courts allow “limited discovery to ensue after filing of the complaint to permit 10 the plaintiff to learn the identifying facts necessary to permit service on the defendant.” 11 Columbia Ins. Co. v. Seescandy.com,

(N.D. Cal. 1999) (citing 12 Gillespie v. Civiletti,

(9th Cir. 1980)). Courts authorize such “expedited 13 discovery” where the need for the information “outweighs the prejudice to the responding 14 party.” Semitool, Inc. v. Tokyo Elec. Am., Inc.,

(N.D. Cal. 2002) 15 (applying “the conventional standard of good cause in evaluating [a] request for expedited 16 discovery”). “A district court’s decision to grant discovery to determine jurisdictional facts 17 is a matter of discretion.” Columbia Ins. Co.,

(citation omitted). 18 The Ninth Circuit holds that when the defendant’s identity is unknown at the time 19 the complaint is filed, a court may grant leave to take early discovery to determine the 20 defendant’s identity “unless it is clear that discovery would not uncover the identit[y], or 21 that the complaint would be dismissed on other grounds.” Gillespie,

. “[T]o 22 prevent abuse of this extraordinary application of the discovery process and to ensure that 23 the plaintiff has standing to pursue an action against defendant,” the plaintiff must “make 24 some showing that an act giving rise to civil liability actually occurred and that the 25 requested discovery is specifically aimed at … identifying … the person who committed 26 the act.” Columbia Ins. Co.,

. 27 /// 28 /// 1 III. DISCUSSION 2 Courts apply a three-factor test when considering motions for early discovery to 3 identify the defendant.

. First, the plaintiff should “identify the missing party 4 with sufficient specificity such that the Court can determine that defendant is a real person 5 or entity who could be sued in federal court.”

. Second, the movant must describe 6 “all previous steps taken to locate the elusive defendant” to ensure that the plaintiff has 7 made a good faith effort to identify and serve process on the defendant.

. Third, 8 the plaintiff should establish that its “suit against the defendant could withstand a motion 9 to dismiss.”

The Court considers each of these factors as applied to the instant request 10 for expedited discovery. 11 A. Identification of Missing Parties with Sufficient Specificity 12 A plaintiff can satisfy its burden of identifying the missing party with specificity by 13 “identify[ing] the unique IP addresses” of the allegedly infringing individuals and then 14 “us[ing] geolocation technology to trace these IP addresses to a point of origin.” See Pink 15 Lotus Entm’t, LLC v. Does 1-46, No. C-11-02263 HRL,

, at *3 (N.D. 16 Cal. June 21, 2011) (finding plaintiff satisfied first factor). Here, plaintiff determined that 17 AT&T U-Verse provided the subject IP address associated with defendant and used 18 geolocation technology to trace the IP address to an address located within this District. 19 See Doc. No. 4-1 at 12; Doc. No. 4-2 at 29. Plaintiff confirmed the information before 20 filing its Complaint and again before filing the instant ex parte application. Doc. No. 4-2 21 at 29. The Court finds plaintiff has “sufficiently shown” that defendant is a “real person[] 22 likely residing in California who may be sued in this Court.” Pink Lotus,

2470986, at *3; see also Malibu Media, LLC v. Doe,

(E.D. Cal. 2016) 24 (finding that “IP address identification is sufficient, at this stage, to indicate a real person 25 used the network to download the copyrighted files”). 26 B. Previous Attempts to Locate Defendant 27 Next, plaintiff must identify all previous steps taken to identify the Doe defendant 28 in a good faith effort to locate and serve it. See Columbia Ins. Co.,

. 1 Plaintiff reports it attempted to “correlate” defendant’s IP address to defendant by using 2 web search tools, conducted research on other methods of identifying and locating 3 defendant, and consulted with computer investigators and cyber security consultants. Doc. 4 No. 4-1 at 14. Despite these efforts, plaintiff has been unable to identify defendant and 5 represents it cannot do so without the requested discovery.

Accordingly, the Court finds 6 that plaintiff has made a good-faith effort to identify and locate defendant before filing the 7 instant application. 8 C. Ability to Withstand a Motion to Dismiss 9 Plaintiff’s Complaint alleges a single cause of action against defendant for direct 10 copyright infringement. See Doc. No. 1 at ¶¶ 48-53. Plaintiff alleges it owns the subject 11 intellectual property, which defendant copied and distributed without plaintiff’s 12 authorization, permission or consent. See Doc. No. 4-1 at 16; Doc. No. 1 at ¶ 51. The Court 13 finds plaintiff has alleged a prima facie case of direct copyright infringement against 14 defendant that would likely withstand a motion to dismiss for failure to state a claim. See 15 Malibu Media,

(finding, on similar facts, that adult-entertainment 16 company had established a prima facie claim for copyright infringement). 17 Plaintiff also bears the burden of establishing jurisdictional facts. See Columbia Ins. 18 Co.,

. Plaintiff, using geolocation technology, traced defendant’s IP 19 address to a point of origin within this District before filing its Complaint and again before 20 filing the instant ex parte application. See Doc. No. 4-1 at 12; Doc. No. 4-2 at 29. These 21 facts are sufficient to show “that it is likely that the [d]efendant is located within the 22 Southern District of California and is subject to the personal jurisdiction of the Court.” 23 Criminal Prods., Inc. v. Doe, No. 16-cv-02353-DMS-MDD,

, at *3 24 (S.D. Cal. Oct. 17, 2016). The Court therefore finds plaintiff has alleged enough facts to 25 show it can likely withstand a motion to dismiss for lack of personal jurisdiction. 26 For the same reason, venue appears proper. Civil actions for copyright infringement 27 “may be instituted in the district in which defendant or his agent resides or may be found.” 28

(a). Plaintiff alleges defendant committed the infringing acts 1 complained of in this District. Doc. No. 1 at ¶ 11. The Court finds that the Complaint could 2 likely withstand a motion to dismiss for improper venue. 3 Accordingly, the Court finds that plaintiff has adequately demonstrated that the 4 Complaint can likely survive a motion to dismiss. 5 ORDER 6 For the reasons stated above, plaintiff’s Ex Parte Application for Leave to Serve a 7 Third-Party Subpoena Prior to a Rule 26(f) Conference [Doc. No. 4] is GRANTED. It is 8 hereby further ORDERED that: 9 1. Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45 upon AT&T U- 10 Verse for the sole purpose of obtaining the name and address only of 11 defendant John Doe, based on the IP address listed in the Complaint: 12 104.188.23.251. The subpoena shall not seek defendant’s telephone number, 13 email address, or Media Access Control (MAC) address, as this information 14 is not necessary for plaintiff to identify and serve defendant. 15 2. The return date of the subpoena must allow for at least forty-five (45) days 16 from service to production. If AT&T U-Verse intends to move to quash the 17 subpoena, it must do so prior to the return date of the subpoena. If a motion 18 to quash or other customer challenge is brought, AT&T U-Verse must 19 preserve the information sought by plaintiff pending resolution of the motion 20 or challenge. 21 3. AT&T U-Verse shall have fourteen (14) calendar days after service of the 22 subpoena upon it to notify its subscriber that his/her identity has been 23 subpoenaed by plaintiff. The subscriber whose identity has been subpoenaed 24 shall have thirty (30) calendar days from the date of such 25 notice to challenge the disclosure to plaintiff by filing an appropriate pleading 26 with this Court contesting the subpoena. 27 4. Plaintiff shall serve a copy of this Order with any subpoena served upon 28 AT&T U-Verse pursuant to this Order. AT&T U-Verse, in turn, must provide 1 a copy of this Order along with the required notice to the subscriber whose 2 identity is sought pursuant to this Order. 3 5. Plaintiff may use the information disclosed pursuant to the subpoena only in 4 pursuing this litigation. 5 6. No other discovery is authorized at this time. 6 || IT ISSO ORDERED. 7 || Dated: February 22, 2022 Me Uf; 8 VC LA “EEE 9 Hori. Karen S. Crawford United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28