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-162-GPC-KSC

12 Plaintiff, ORDER GRANTING EX PARTE 13 v. APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY 14 JOHN DOE, IP address 172.117.163.114, SUBPOENA PRIOR TO A RULE 15 Defendant. 26(f) CONFERENCE [Doc. No. 4] 16 17 I. BACKGROUND 18 On January 23, 2024, plaintiff filed a Complaint against defendant John Doe 19 subscriber assigned IP address 172.117.163.114, asserting a single claim for direct 20 copyright infringement. Doc. No. 1. Plaintiff alleges it is the owner of certain adult-content 21 films and that defendant “is committing rampant and wholesale copyright infringement” 22 by downloading and distributing plaintiff’s works without plaintiff’s authorization, 23 permission, or consent. Id. at ¶¶ 1-4. Defendant’s name and address are unknown to 24 plaintiff, who can identify defendant only by IP address 172.117.163.114. Id. at ¶ 13. This 25 IP address was used to upload a piece or pieces of plaintiff’s intellectual property as 26 27 28 1 recently as December 24, 2023. Doc. No. 4-2 at 4, 19-22, 25-26. Using geolocation 2 technology, plaintiff has identified Spectrum, an internet service provider (“ISP”), as the 3 owner of defendant’s IP address. Doc. No. 4-1 at 17. Plaintiff seeks the Court’s leave to 4 serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on Spectrum to learn 5 defendant’s “true name and address.” Id. at 8. Plaintiff asserts that “[w]ithout this 6 information,” it can neither serve defendant “nor pursue this lawsuit and protect its 7 copyrights.” Id. 8 II. LEGAL STANDARDS 9 “A party may not seek discovery from another source before the parties have 10 conferred as required by Rule 26(f)” unless such discovery is “authorized” by the Court. 11 Fed. R. Civ. P. 26(d)(1). A court may allow “limited discovery to ensue after filing of the 12 complaint to permit the plaintiff to learn the identifying facts necessary to permit service 13 on the defendant.” Columbia Ins. Co. v. Seescandy.com,

(N.D. Cal. 14 1999) (citing Gillespie v. Civiletti,

(9th Cir. 1980)). Courts authorize 15 such “expedited discovery” where the need for the information “outweighs the prejudice 16 to the responding party.” Semitool, Inc. v. Tokyo Electron Am., Inc.,

, 276 17 (N.D. Cal. 2002). “A district court’s decision to grant discovery to determine jurisdictional 18 facts is a matter of discretion.” Columbia Ins. Co.,

(citation omitted). 19 When the defendant’s identity is unknown at the time the complaint is filed, a court 20 may grant leave to take early discovery to determine the defendant’s identity “unless it is 21 clear that discovery would not uncover the identit[y], or that the complaint would be 22 dismissed on other grounds.” Gillespie,

. “[T]o prevent abuse of this 23 extraordinary application of the discovery process and to ensure that [the] plaintiff has 24 standing to pursue an action against [the] defendant,” the applicant must “make some 25 showing that an act giving rise to civil liability actually occurred and that the requested 26 27 28 1 1 discovery is specifically aimed at . . . identifying . . . the person who committed the act.” 2 Columbia Ins. Co.,

. 3 III. DISCUSSION 4 Courts apply a three-factor test when considering motions for early discovery to 5 identify the defendant. Columbia Ins. Co.,

. First, the applicant should 6 “identify the missing party with sufficient specificity such that the Court can determine 7 that the defendant is a real person or entity who could be sued in federal court.”

. 8 Second, the applicant must describe “all previous steps taken to locate the elusive 9 defendant.”

. Third, the applicant should establish that its “suit . . . could withstand 10 a motion to dismiss.”

The Court considers each of these factors as applied to the instant 11 request for expedited discovery. 12 A. Identification of Missing Parties with Sufficient Specificity 13 A plaintiff can satisfy its burden of identifying the missing party with specificity by 14 “identify[ing] the unique IP addresses” of the allegedly infringing individuals and then 15 “us[ing] geolocation technology to trace these IP addresses to a point of origin.” See Pink 16 Lotus Entm’t, LLC v. Does 1-46, No. C-11-02263 HRL,

, at *3 (N.D. 17 Cal. June 21, 2011); see also Malibu Media, LLC v. Doe,

(E.D. Cal. 18 2016) (noting a specific IP address is sufficient to identify a real person). Here, plaintiff 19 used geolocation technology to trace the IP address to an address in San Diego, California, 20 which is within this District. Doc. No. 4-1 at 12-13; Doc. No. 4-2 at 29. 2 The Court finds 21 plaintiff has “sufficiently shown” defendant is a “real person[] likely residing in California 22 who may be sued in this Court.” Pink Lotus,

, at *3. 23 B. Attempts to Locate Defendant 24 Next, plaintiff must identify all steps taken to identify and effect service upon 25 defendant. See Columbia Ins. Co.,

. “Good cause [to permit early 26 discovery] exists where a plaintiff has exhausted its means to identify the defendant 27 through publicly available information and has no other way to identify” the defendant. 28 Amazon.com Inc. v. Vivcic, No. C23-486-JHC-MLP,

, at *2 (W.D. 1 Wash. Sept. 22, 2023). Plaintiff reports it attempted to “correlate” defendant’s IP address 2 to defendant by using web search tools, conducted research on other methods of identifying 3 and locating defendant, and consulted with “computer investigators and cyber security 4 consultants.” Doc. No. 4-1 at 14. Despite these efforts, plaintiff has been unable to identify 5 defendant and represents it cannot do so without the requested discovery. See

6 Accordingly, the Court finds plaintiff made a good-faith effort to identify and locate 7 defendant before filing the instant application. 8 C. Ability to Withstand a Motion to Dismiss 9 An entertainment company can state a prima facie claim for copyright infringement 10 by alleging unlawful downloading of its copyrighted works. See Malibu Media,

at 305 Plaintiff’s Complaint alleges a single cause of action against defendant for direct 12 copyright infringement. See generally Doc. No. 1. Plaintiff alleges it owns the subject 13 intellectual property, which defendant copied and distributed without plaintiff’s 14 authorization, permission, or consent. Id. at ¶¶ 49-51. The Court finds plaintiff has alleged 15 a prima facie case of direct copyright infringement against defendant that would likely 16 withstand a motion to dismiss for failure to state a claim. 17 Plaintiff also bears the burden of establishing jurisdictional facts. See Columbia Ins. 18 Co.,

(citation omitted). Identifying a defendant with geolocation 19 technology makes a prima facie showing of jurisdiction over that defendant. Criminal 20 Prods., Inc. v. Doe, No. 16-cv-02353-DMS-MDD,

, at *3 (S.D. Cal. 21 Oct. 17, 2016). As noted, using geolocation technology, plaintiff traced defendant’s IP 22 address to a point of origin within this District before filing its Complaint and again before 23 filing the instant ex parte application. See Doc. No. 4-1 at 12- 13; Doc. No. 4-2 at 29. The 24 geolocation data show the IP address traced to this district continuously and right up to the 25 time plaintiff filed the instant ex parte application. See Doc. No. 4-2 at 29. These facts are 26 sufficient to show “that it is likely that the [d]efendant is located within the Southern 27 District of California and is subject to the personal jurisdiction of the Court.” Criminal 28 1 Prods,

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

(a). Plaintiff alleges “a substantial part” of the alleged wrongful acts 6 occurred in this District, and further that defendant resides in this District. Doc. No. 1 at ¶ 7 11. The Court finds the Complaint could likely withstand a motion to dismiss for improper 8 venue. In sum, and for the reasons stated above, the Court finds plaintiff has established 9 good cause to pursue expedited discovery. Plaintiff’s request for leave to subpoena 10 defendant’s ISP provider is accordingly GRANTED. 11 IV. CONCLUSION 12 For the reasons stated above, plaintiff’s Ex Parte Application for Leave to Serve a 13 Third-Party Subpoena Prior to a Rule 26(f) Conference [Doc. No. 4] is GRANTED. It is 14 hereby further ORDERED: 15 1. Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45 on Spectrum for the 16 sole purpose of obtaining the name and address only of defendant John Doe, based on the 17 IP address listed in the Complaint: 172.117.163.114. The subpoena shall not seek 18 defendant’s telephone number, email address, or Media Access Control (MAC) address, as 19 none of this information is necessary for plaintiff to identify and serve defendant. 20 2. The return date of the subpoena must allow for at least forty-five (45) days from 21 service to production. If Spectrum intends to move to quash the subpoena, it must do so 22 prior to the return date of the subpoena. If a motion to quash or other customer challenge 23 is brought, Spectrum must preserve the information sought by plaintiff pending resolution 24 of the motion or challenge. 25 3. Spectrum, shall have fourteen (14) calendar days after service of the subpoena 26 upon it to notify its subscriber their identity has been subpoenaed by plaintiff. The 27 subscriber whose identity has been subpoenaed shall have thirty (30) calendar days from 28 1 date of such notice to challenge the disclosure to plaintiff by filing an appropriate 2 || pleading with this Court contesting the subpoena. 3 4. Plaintiff shall serve a copy of this Order with any subpoena served on Spectrum 4 || pursuant to this Order. Spectrum, in turn, must provide a copy of this Order along with the 5 required notice to the subscriber whose identity is sought pursuant to this Order. 6 5. Plaintiff may use the information disclosed pursuant to the subpoena only in 7 || pursuing this litigation. 8 6. No other discovery is authorized at this time. 9 IT IS SO ORDERED. 10 || Dated: February 14, 2024 JE. Le

D Hori. Karen 8S. Crawford United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28