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-00477-BAS-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 76.93.137.95, 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 (“Application”). Dkt. No. 4. For the reasons stated below, Plaintiff’s Application is 21 GRANTED. 22 I. 23 BACKGROUND 24 On March 15, 2023, Plaintiff filed a Complaint against Defendant John Doe 25 subscriber assigned IP address 76.93.137.95 (“Defendant”), asserting a single claim for 26 direct copyright infringement. See Dkt. No. 1. Plaintiff alleges it is the owner of certain 27 adult-content films and that Defendant “is committing rampant and wholesale copyright 28 infringement” by downloading and distributing 112 of Plaintiff’s works without Plaintiff’s 1 authorization, permission, or consent. Id. at ¶¶ 1-4, 48-53. Defendant’s identity is known 2 to Plaintiff only by Defendant’s IP address: 76.93.137.95. Id. at ¶ 13; see Dkt. No. 4-1 at 3 17.1 Using geolocation technology, Plaintiff has identified Spectrum, an internet service 4 provider (“ISP”), as the owner of Defendant’s IP address. Dkt. No. 4-1 at 17. Plaintiff 5 therefore seeks the Court’s leave to serve a subpoena pursuant to Federal Rule of Civil 6 Procedure 45 on Spectrum to learn Defendant’s “true name and address.” Id. at 8. Plaintiff 7 asserts that “[w]ithout this information,” it cannot serve Defendant, “nor pursue this lawsuit 8 and protect its copyrights.” Id. 9 II. 10 LEGAL STANDARDS 11 Federal Rule of Civil Procedure 26 provides that “a party may not seek discovery 12 from another source before the parties have conferred as required by Rule 26(f)” unless 13 such discovery is “authorized” by the Court. Fed. R. Civ. P. 26(d)(1). “[I]n rare cases,” 14 however, courts allow “limited discovery to ensue after filing of the complaint to permit 15 the plaintiff to learn the identifying facts necessary to permit service on the defendant.” 16 Columbia Ins. Co. v. Seescandy.com,

(N.D. Cal. 1999) (citing 17 Gillespie v. Civiletti,

(9th Cir. 1980)). Courts authorize such “expedited 18 discovery” where the need for the information “outweighs the prejudice to the responding 19 party.” Semitool, Inc. v. Tokyo Electron Am., Inc.,

(N.D. Cal. 2002) 20 (applying “the conventional standard of good cause in evaluating [a] request for expedited 21 discovery”). “A district court’s decision to grant discovery to determine jurisdictional facts 22 is a matter of discretion.” Columbia Ins. Co.,

(citation omitted). 23 The Ninth Circuit holds that when the Defendant’s identity is unknown at the time 24 the complaint is filed, a court may grant leave to take early discovery to determine the 25 Defendant’s identity “unless it is clear that discovery would not uncover the identit[y], or 26 27 1 All page citations herein are to the page numbers generated by the Court’s CM/ECF 28 1 that the complaint would be dismissed on other grounds.” Gillespie,

. “[T]o 2 prevent abuse of this extraordinary application of the discovery process and to ensure that 3 [the] plaintiff has standing to pursue an action against [the] defendant,” the applicant must 4 “make some showing that an act giving rise to civil liability actually occurred and that the 5 requested discovery is specifically aimed at . . . identifying . . . the person who committed 6 the act.” Columbia Ins. Co.,

. 7 III. 8 DISCUSSION 9 Courts apply a three-factor test when considering motions for early discovery to 10 identify the Defendant. Columbia Ins. Co.,

. First, the applicant 11 should “identify the missing party with sufficient specificity such that the Court can 12 determine that the defendant is a real person or entity who could be sued in federal court.” 13

. Second, the applicant must describe “all previous steps taken to locate the 14 elusive defendant.”

. Third, the applicant should establish that its “suit . . . could 15 withstand a motion to dismiss.”

The Court considers each of these factors as applied to 16 the instant request for expedited discovery. 17 A. Identification of Missing Parties with Sufficient Specificity 18 A plaintiff can satisfy its burden of identifying the missing party with specificity by 19 “identify[ing] the unique IP addresses” of the allegedly infringing individuals and then 20 “us[ing] ‘geolocation’ technology to trace these IP addresses to a point of origin . . . .” See 21 Pink Lotus Entm’t, LLC v. Does 1-46, No. C-11-02263 HRL,

, at *3 22 (N.D. Cal. June 21, 2011) (finding plaintiff satisfied first factor). Here, Plaintiff used 23 geolocation technology to trace the IP address to an address in San Diego, California, 24 which is within this District. See Dkt. No. 4-1 at 12-13; Dkt. No. 4-2 at 29. Plaintiff 25 confirmed the information before filing its Complaint and again before filing the instant ex 26 parte application. Dkt. No. 4-2 at 29. The Court finds Plaintiff has “sufficiently shown” 27 that Defendant is a “real person[] likely residing in California who may be sued in this 28 Court.” Pink Lotus,

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

, 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 Spectrum 18 for the sole purpose of obtaining the name and address only of Defendant John Doe, based 19 on the IP address listed in the Complaint: 76.93.137.95. The subpoena shall not seek 20 Defendant’s telephone number, email address, or Media Access Control (MAC) address, 21 as none of this information is necessary for Plaintiff to identify and serve Defendant. 22 2. The return date of the subpoena must allow for at least forty-five (45) days 23 from service to production. If Spectrum intends to move to quash the subpoena, it must do 24 so prior to the return date of the subpoena. If a motion to quash or other customer challenge 25 is brought, Spectrum must preserve the information sought by Plaintiff pending resolution 26 of the motion or challenge. 27 3. Spectrum shall have fourteen (14) calendar days after service of the subpoena 28 upon it to notify its subscriber that his/her identity has been subpoenaed by Plaintiff. The 1 subscriber whose identity has been subpoenaed shall have thirty (30) calendar days from 2 ||the date of such notice to challenge the disclosure to Plaintiff by filing an appropriate 3 || pleading with this Court contesting the subpoena. 4 4. Plaintiff shall serve a copy of this Order with any subpoena served upon 5 ||Spectrum pursuant to this Order. Spectrum, in turn, must provide a copy of this Order 6 || along with the required notice to the subscriber whose identity 1s sought pursuant to this 7 || Order. 8 5. Plaintiff may use the information disclosed pursuant to the subpoena only in 9 || pursuing this litigation. 10 6. No other discovery is authorized at this time. 11 IT IS SO ORDERED. 12 Dated: April 14, 2023 ene 13 Tb hohe Hon. David D. Leshner SS I5 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28