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.: 23-cv-00093-H-DDL

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 15 address 99.121.254.104, 26(f) CONFERENCE Defendant. 16 [Dkt. 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 Dkt. No. 4. For the reasons stated below, Plaintiff’s application is GRANTED. 21 I. 22 BACKGROUND 23 On January 18, 2023, Plaintiff filed a Complaint against Defendant John Doe 24 subscriber assigned IP address 99.121.254.104 (“Defendant”), asserting a single claim for 25 direct copyright infringement. See Dkt. No. 1. Plaintiff alleges it is the owner of certain 26 adult-content films and that Defendant “is committing rampant and wholesale copyright 27 infringement” by downloading and distributing 24 of Plaintiff’s works without Plaintiff’s 28 authorization, permission, or consent. Id. at ¶¶ 1-4, 48-53. Defendant’s identity is known 1 to Plaintiff only by Defendant’s IP address: 99.121.254.104. Id. at ¶ 13; see Dkt. No. 4-1 2 at 17.1 Using geolocation technology, Plaintiff has identified AT&T U-verse, an internet 3 service provider (“ISP”), as the owner of Defendant’s IP address. Dkt. No. 4-1 at 17. 4 Plaintiff therefore seeks the Court’s leave to serve a subpoena pursuant to Federal Rule of 5 Civil Procedure 45 on AT&T U-verse to learn Defendant’s “true name and address.” Id. 6 at 8. Plaintiff asserts that “[w]ithout this information,” it cannot serve Defendant, “nor 7 pursue this lawsuit and protect its copyrights.” Id. 8 II. 9 LEGAL STANDARDS 10 Federal Rule of Civil Procedure 26 provides that “a party may not seek discovery 11 from another source before the parties have conferred as required by Rule 26(f)” unless 12 such discovery is “authorized” by the Court. Fed. R. Civ. P. 26(d)(1). “[I]n rare cases,” 13 however, courts allow “limited discovery to ensue after filing of the complaint to permit 14 the plaintiff to learn the identifying facts necessary to permit service on the defendant.” 15 Columbia Ins. Co. v. Seescandy.com,

(N.D. Cal. 1999) (citing 16 Gillespie v. Civiletti,

(9th Cir. 1980)). Courts authorize such “expedited 17 discovery” where the need for the information “outweighs the prejudice to the responding 18 party.” Semitool, Inc. v. Tokyo Electron Am., Inc.,

(N.D. Cal. 2002) 19 (applying “the conventional standard of good cause in evaluating [a] request for expedited 20 discovery”). “A district court’s decision to grant discovery to determine jurisdictional facts 21 is a matter of discretion.” Columbia Ins. Co.,

(citation omitted). 22 The Ninth Circuit holds that when the Defendant’s identity is unknown at the time 23 the complaint is filed, a court may grant leave to take early discovery to determine the 24 Defendant’s identity “unless it is clear that discovery would not uncover the identit[y], or 25 that the complaint would be dismissed on other grounds.” Gillespie,

. “[T]o 26 27 1 All page citations herein are to the page numbers generated by the Court’s CM/ECF 28 1 prevent abuse of this extraordinary application of the discovery process and to ensure that 2 [the] plaintiff has standing to pursue an action against [the] defendant,” the applicant must 3 “make some showing that an act giving rise to civil liability actually occurred and that the 4 requested discovery is specifically aimed at . . . identifying . . . the person who committed 5 the act.” Columbia Ins. Co.,

. 6 III. 7 DISCUSSION 8 Courts apply a three-factor test when considering motions for early discovery to 9 identify the Defendant. Columbia Ins. Co.,

. First, the applicant 10 should “identify the missing party with sufficient specificity such that the Court can 11 determine that the defendant is a real person or entity who could be sued in federal court.” 12

. Second, the applicant must describe “all previous steps taken to locate the 13 elusive defendant.”

. Third, the applicant should establish that its “suit . . . could 14 withstand a motion to dismiss.”

The Court considers each of these factors as applied to 15 the instant request for expedited discovery. 16 A. Identification of Missing Parties with Sufficient Specificity 17 A plaintiff can satisfy its burden of identifying the missing party with specificity by 18 “identify[ing] the unique IP addresses” of the allegedly infringing individuals and then 19 “us[ing] ‘geolocation’ technology to trace these IP addresses to a point of origin . . . .” See 20 Pink Lotus Entm’t, LLC v. Does 1-46, No. C-11-02263 HRL,

, at *3 21 (N.D. Cal. June 21, 2011) (finding plaintiff satisfied first factor). Here, Plaintiff used 22 geolocation technology to trace the IP address to an address in San Diego, California, 23 which is within this District. See Dkt. No. 4-1 at 12-13; Dkt. No. 4-2 at 29. Plaintiff 24 confirmed the information before filing its Complaint and again before filing the instant ex 25 parte application. Dkt. No. 4-2 at 29. The Court finds Plaintiff has “sufficiently shown” 26 that Defendant is a “real person[] likely residing in California who may be sued in this 27 Court.” Pink Lotus,

, at *3; see also Malibu Media, LLC v. Doe, 319 28 / / /

, 305 (E.D. Cal. 2016) (finding that “IP address identification is sufficient, at 2 this stage, to indicate a real person used the network to download the copyrighted files”). 3 B. Attempts to Locate Defendant 4 Next, Plaintiff must identify all steps taken to identify and effect service upon 5 Defendant. See Columbia Ins. Co.,

. Plaintiff reports it attempted to 6 “correlate” Defendant’s IP address to Defendant by using web search tools, conducted 7 research on other methods of identifying and locating Defendant, and consulted with 8 computer investigators and cyber security consultants. See Dkt. No. 4-1 at 14. Despite 9 these efforts, Plaintiff has been unable to identify Defendant and represents it cannot do so 10 without the requested discovery. See id. at 17. Accordingly, the Court finds that Plaintiff 11 has made a good-faith effort to identify and locate Defendant before filing the instant 12 application. 13 C. Ability to Withstand a Motion to Dismiss 14 Plaintiff’s Complaint alleges a single cause of action against Defendant for direct 15 copyright infringement. See Dkt. No. 1 at ¶¶ 48-53. Plaintiff alleges it owns the subject 16 intellectual property, which Defendant copied and distributed without Plaintiff’s 17 authorization, permission, or consent. Id. at ¶¶ 49-51; see also Dkt. No. 4-1 at 16. The 18 Court finds Plaintiff has alleged a prima facie case of direct copyright infringement against 19 Defendant that would likely withstand a motion to dismiss for failure to state a claim. See 20 Malibu Media, 319 F.R.D. at 305 (finding, on similar facts, that adult-entertainment 21 company had established a prima facie claim for copyright infringement). 22 Plaintiff also bears the burden of establishing jurisdictional facts. See Columbia Ins. 23 Co.,

(citation omitted). As noted, using geolocation technology, Plaintiff 24 traced Defendant’s IP address to a point of origin within this District before filing its 25 Complaint and again before filing the instant ex parte application. See Dkt. No. 4-1 at 12- 26 13; Dkt. No. 4-2 at 29. These facts are sufficient to show “that it is likely that the 27 [d]efendant is located within the Southern District of California and is subject to the 28 personal jurisdiction of the Court.” Criminal Prods., Inc. v. Doe, No. 16-cv-02353-DMS- 1 MDD,

, at *3 (S.D. Cal. Oct. 17, 2016). The Court therefore finds 2 Plaintiff has alleged enough facts to show it can likely withstand a motion to dismiss for 3 lack of personal jurisdiction. 4 For the same reason, venue appears proper. Civil actions for copyright infringement 5 “may be instituted in the district in which the defendant or his agent resides or may be 6 found.”

(a). Plaintiff alleges Defendant committed the alleged acts of 7 infringement in this District. Dkt. No. 1 at ¶ 11. The Court finds that the Complaint could 8 likely withstand a motion to dismiss for improper venue. 9 In sum, and for the reasons stated above, the Court finds that Plaintiff has established 10 good cause to pursue expedited discovery. Plaintiff’s request for leave to subpoena 11 Defendant’s ISP provider is accordingly GRANTED. 12 IV. 13 CONCLUSION 14 For the reasons stated above, Plaintiff’s Ex Parte Application for Leave to Serve a 15 Third-Party Subpoena Prior to a Rule 26(f) Conference [Dkt. No. 4] is GRANTED. It is 16 hereby further ORDERED that: 17 1. Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45 upon AT&T U- 18 verse for the sole purpose of obtaining the name and address only of Defendant John Doe, 19 based on the IP address listed in the Complaint: 99.121.254.104. The subpoena shall not 20 seek Defendant’s telephone number, email address, or Media Access Control (MAC) 21 address, as none of this information is necessary for Plaintiff to identify and serve 22 Defendant. 23 2. The return date of the subpoena must allow for at least forty-five (45) days 24 from service to production. If AT&T U-verse intends to move to quash the subpoena, it 25 must do so prior to the return date of the subpoena. If a motion to quash or other customer 26 challenge is brought, AT&T U-verse must preserve the information sought by Plaintiff 27 pending resolution of the motion or challenge. 28 3. AT&T U-verse shall have fourteen (14) calendar days after service of the 1 ||subpoena upon it to notify its subscriber that his/her identity has been subpoenaed by 2 || Plaintiff. The subscriber whose identity has been subpoenaed shall have thirty (30) 3 || calendar days from the date of such notice to challenge the disclosure to Plaintiff by filing 4 || an appropriate pleading with this Court contesting the subpoena. 5 4. Plaintiff shall serve a copy of this Order with any subpoena served upon 6 || AT&T U-verse pursuant to this Order. AT&T U-verse, in turn, must provide a copy of this 7 || Order along with the required notice to the subscriber whose identity is sought pursuant to 8 || this Order. 9 5. Plaintiff may use the information disclosed pursuant to the subpoena only in 10 || pursuing this litigation. 11 6. No other discovery is authorized at this time. 12 || IT IS SO ORDERED. 13 Dated: February 17, 2023 it 14 Tb Lh,

16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28