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.: 24-cv-160-MMA-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 address 75.80.20.114, 15 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 23, 2024, Plaintiff filed a Complaint against Defendant John Doe 24 subscriber assigned IP address 75.80.20.114 (“Defendant”), asserting a single cause of 25 action for direct copyright infringement. See Dkt. No. 1. Plaintiff alleges it is the owner 26 of certain adult-content films and that Defendant has willfully infringed its copyrighted 27 works “on a grand scale” by downloading and distributing 75 of them without Plaintiff’s 28 authorization, permission, or consent. Id. at ¶¶ 1-4, 48-53. Defendant’s name and address 1 are unknown to Plaintiff, who can identify Defendant only by Defendant’s IP address: 2 75.80.20.114. Id. at ¶ 13; Dkt. No. 4-1 at 7.1 Plaintiff has identified Spectrum, an internet 3 service provider (“ISP”), as the owner of Defendant’s IP address. Id. at 7, 17. Plaintiff 4 therefore seeks the Court’s leave to serve a subpoena on Spectrum which will “demand the 5 true name and address of Defendant” and nothing more. Id. at 8. Plaintiff asserts that 6 “[w]ithout this information,” it cannot serve Defendant, “nor pursue this lawsuit and 7 protect its copyrights.” Id. at 8. 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)).2 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.,

. 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 26 27 1 All page citations are to the page numbers generated by the Court’s CM/ECF system. 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 ex parte application. 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 Pink 21 Lotus Entm’t, LLC v. Does 1-46, No. C-11-02263 HRL,

, at *3 (N.D. 22 Cal. June 21, 2011) (finding plaintiff satisfied first factor). Before filing the complaint, 23 Plaintiff used geolocation technology to trace the IP address to an address in San Marcos, 24 California, which is within this District. See Dkt. No. 4-2 at 29. This information was 25 confirmed before the instant motion was filed. See

The Court finds Plaintiff has 26 “sufficiently shown” that Defendant is a “real person[] likely residing in California who 27 may be sued in this Court.” Pink Lotus,

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

(E.D. Cal. 2016) (finding that “IP address identification 1 is sufficient, at this stage, to indicate a real person used the network to download the 2 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.” Dkt. No. 4-1 at 14. Despite these 9 efforts, Plaintiff has been unable to identify Defendant and represents it cannot do so 10 without the requested discovery. See

“Good cause [to permit early discovery] exists 11 where a plaintiff has exhausted its means to identify the defendant through publicly 12 available information and has no other way to identify” the defendant. Amazon.com Inc. 13 v. Vivcic, No. C23-486-JHC-MLP,

, at *2 (W.D. Wash. Sept. 22, 2023). 14 Accordingly, the Court finds that Plaintiff endeavored to identify and locate Defendant 15 before filing the instant application. 16 C. Ability to Withstand a Motion to Dismiss 17 Plaintiff’s Complaint alleges a single cause of action against Defendant for direct 18 copyright infringement. See Dkt. No. 1 at ¶¶ 48-53. Plaintiff alleges it owns the subject 19 intellectual property, which Defendant copied and distributed without Plaintiff’s 20 authorization, permission, or consent. Id. at ¶¶ 49-51. The Court finds Plaintiff has alleged 21 a prima facie case of direct copyright infringement against Defendant that would likely 22 withstand a motion to dismiss for failure to state a claim. See Malibu Media,

(finding, on similar facts, that adult-entertainment company had established a prima 24 facie claim for copyright infringement). 25 Plaintiff also bears the burden of establishing jurisdictional facts. See Columbia Ins. 26 Co.,

. As noted, using geolocation technology, Plaintiff traced 27 Defendant’s IP address to a point of origin within this District before filing its Complaint 28 and again before filing the instant ex parte application. See Dkt. No. 4-2 at 29. These facts 1 are sufficient to show “that it is likely that the [d]efendant is located within the Southern 2 District of California and is subject to the personal jurisdiction of the Court.” Criminal 3 Prods., Inc. v. Doe, No. 16-cv-02353-DMS-MDD,

, at *3 (S.D. Cal. 4 Oct. 17, 2016). The Court therefore finds Plaintiff has alleged enough facts to show it can 5 likely withstand a motion to dismiss for lack of personal jurisdiction. 6 For the same reason, venue appears proper. Civil actions for copyright infringement 7 “may be instituted in the district in which Defendant or his agent resides or may be found.” 8

(a). Plaintiff alleges “a substantial part” of the alleged wrongful acts 9 occurred in this District, and further that Defendant resides in this District. Dkt. No. 1 at 10 ¶ 11. The Court finds that the Complaint could likely withstand a motion to dismiss for 11 improper venue. 12 In sum, and for the reasons stated above, the Court finds that Plaintiff has established 13 good cause to pursue expedited discovery. Plaintiff’s ex parte application for leave to 14 subpoena Defendant’s ISP provider is accordingly GRANTED. 15 IV. 16 CONCLUSION 17 For the reasons stated above, Plaintiff’s Ex Parte Application for Leave to Serve a 18 Third-Party Subpoena Prior to a Rule 26(f) Conference [Dkt. No. 4] is GRANTED. It is 19 hereby further ORDERED that: 20 1. Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45 upon Spectrum 21 for the purpose of obtaining the name and address only of Defendant John Doe, based on 22 the IP address listed in the Complaint: 75.80.20.114. The subpoena shall not seek 23 Defendant’s telephone number, email address, or Media Access Control (MAC) address, 24 as none of this information is necessary for Plaintiff to identify and serve Defendant. 25 2. The return date of the subpoena must allow for at least forty-five (45) days 26 from service to production. If Spectrum intends to move to quash the subpoena, it must do 27 so prior to the return date of the subpoena. If a motion to quash or other customer challenge 28 / / / 1 brought, Spectrum must preserve the information sought by Plaintiff pending resolution 2 || of the motion or challenge. 3 3. Spectrum shall have fourteen (14) calendar days after service of the subpoena 4 ||upon it to notify its subscriber that his/her identity has been subpoenaed by Plaintiff. The 5 || subscriber whose identity has been subpoenaed shall have thirty (30) calendar days from 6 ||the date of such notice to challenge the disclosure to Plaintiff by filing an appropriate 7 || pleading with this Court contesting the subpoena. 8 4. Plaintiff shall serve a copy of this Order with any subpoena served upon 9 ||Spectrum pursuant to this Order. Spectrum, in turn, must provide a copy of this Order 10 || along with the required notice to the subscriber whose identity is sought pursuant to this 11 || Order. 12 5. Plaintiff may use any information disclosed pursuant to the subpoena only in 13 || pursuing this litigation. 14 6. No other discovery is authorized at this time. 15 | IT IS SO ORDERED. 16 || Dated: February 13, 2024 it 17 Tb hohe A

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