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-332-MMA-KSC

12 Plaintiff, ORDER DENYING EX PARTE 13 v. APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY 14 JOHN DOE, IP address 71.150.87.4, SUBPOENA PRIOR TO A RULE 15 Defendant. 26(f) CONFERENCE [Doc. No. 5] 16 17 18 19 20 I. BACKGROUND 21 On February 21, 2024, plaintiff filed a Complaint against defendant John Doe 22 subscriber assigned IP address 71.150.87.4, asserting a single claim for direct copyright 23 infringement. Doc. No. 1. Plaintiff alleges it is the owner of certain adult-content films and 24 that defendant “is stealing these works on a grand scale” by downloading and distributing 25 plaintiff’s works without plaintiff’s authorization, permission, or consent. Id. ¶¶ 1-4. 26 Defendant’s name and address are unknown to plaintiff, who can identify defendant only 27 by IP address 71.150.87.4. Id. ¶ 5. This IP address was used to upload a piece or pieces of 28 plaintiff’s intellectual property as recently as February 3, 2024. Doc. No. 5-2 at 4, 19-22, 1 25-26. Using geolocation technology, plaintiff has identified AT&T, an internet service 2 provider (“ISP”), as the owner of defendant’s IP address. Doc. No. 5-1 at 17. Plaintiff seeks 3 the Court’s leave to serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on 4 AT&T to learn defendant’s “true name and address.” Id. at 8. Plaintiff asserts that 5 “[w]ithout this information,” it can neither serve defendant “nor pursue this lawsuit and 6 protect its copyrights.” Id. 7 II. LEGAL STANDARDS 8 “A party may not seek discovery from another source before the parties have 9 conferred as required by Rule 26(f)” unless such discovery is “authorized” by the Court. 10 Fed. R. Civ. P. 26(d)(1). A court may allow “limited discovery to ensue after filing of the 11 complaint to permit the plaintiff to learn the identifying facts necessary to permit service 12 on the defendant.” Columbia Ins. Co. v. Seescandy.com,

(N.D. Cal. 13 1999) (citing Gillespie v. Civiletti,

(9th Cir. 1980)). Courts authorize 14 such “expedited discovery” where the need for the information “outweighs the prejudice 15 to the responding party.” Semitool, Inc. v. Tokyo Electron Am., Inc.,

, 276 16 (N.D. Cal. 2002). “A district court’s decision to grant discovery to determine jurisdictional 17 facts is a matter of discretion.” Columbia Ins. Co.,

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

. “[T]o prevent abuse of this 22 extraordinary application of the discovery process and to ensure that [the] plaintiff has 23 standing to pursue an action against [the] defendant,” the applicant must “make some 24 showing that an act giving rise to civil liability actually occurred and that the requested 25 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 Chula Vista, California, 20 which is within this District. Doc. No. 5-1 at 12-13; Doc. No. 5-2 at 29. 2 The Court finds 21 plaintiff has “sufficiently shown” defendant is a “real person[] . . . who may be sued in this 22 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 claims 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. 5-1 at 14. Despite these efforts, plaintiff claims it has been unable 5 to identify defendant and represents it cannot do so without the requested discovery. See 6

However, plaintiff’s statements in the ex parte application do not cite any evidence 7 supporting these claims, and the Court’s independent review of the supporting declarations 8 does not reveal any such information. Plaintiff must make a threshold evidentiary showing 9 of satisfying this prong of the test before it can proceed. Such a showing may be made by 10 non-conclusory declaration testimony establishing the necessary facts; but plaintiff has 11 made no such showing here. According, plaintiff has not met the second-prong of the three- 12 part test. 13 C. Ability to Withstand a Motion to Dismiss 14 An entertainment company can state a prima facie claim for copyright infringement 15 by alleging unlawful downloading of its copyrighted works. See Malibu Media,

. Plaintiff’s Complaint alleges a single cause of action against defendant for direct 17 copyright infringement. See generally Doc. No. 1. Plaintiff alleges it owns the subject 18 intellectual property, which defendant copied and distributed without plaintiff’s 19 authorization, permission, or consent. Id. at ¶¶ 49-51. The Court finds plaintiff has alleged 20 a prima facie case of direct copyright infringement against defendant that would likely 21 withstand a motion to dismiss for failure to state a claim. 22 Plaintiff also bears the burden of establishing jurisdictional facts. See Columbia Ins. 23 Co.,

(citation omitted). Identifying a defendant with geolocation 24 technology makes a prima facie showing of jurisdiction over that defendant. Criminal 25 Prods., Inc. v. Doe, No. 16-cv-02353-DMS-MDD,

, at *3 (S.D. Cal. 26 Oct. 17, 2016). As noted, using geolocation technology, plaintiff traced defendant’s IP 27 address to a point of origin within this District before filing its Complaint and again before 28 filing the instant ex parte application. See Doc. No. 5-1 at 12-13; Doc. No. 5-2 at 29. The 1 || geolocation data show the IP address traced to this district continuously and right up to the 2 || time plaintiff filed the instant ex parte application. See Doc. No. 5-2 at 29. These facts are 3 sufficient to show “that it is likely that the [d]efendant is located within the Southern 4 || District of California and is subject to the personal jurisdiction of the Court.” Criminal 5 || Prods,

, at *3. The Court, therefore, finds plaintiff has alleged enough 6 || facts to show it can likely withstand a motion to dismiss for lack of personal jurisdiction. 7 For the same reason, venue appears proper. Civil actions for copyright infringement 8 ‘“may be instituted in the district in which defendant or his agent resides or may be found.” 9 1/

(a). Plaintiff alleges “a substantial part” of the alleged wrongful acts 10 || occurred in this District, and further that defendant resides in this District. Doc. No. | atf 11 The Court finds the Complaint could likely withstand a motion to dismiss for improper 12 || venue. 13 IV. CONCLUSION 14 Plaintiff has identified the missing person with sufficient specificity, and □□□□□□□□□□□ 15 ||Complaint could withstand a motion to dismiss. However, plaintiff has not made a non- 16 |}conclusory showing of efforts to locate defendant short of filing the instant ex parte 17 || application. Plaintiff's Ex Parte Application for Leave to Serve a Third-Party Subpoena 18 ||Prior to a Rule 26(f) Conference [Doc. No. 5] is therefore DENIED WITHOUT 19 || PREJUDICE. 20 IT IS SO ORDERED. 21 Dated: March 18, 2024 MA

3 Hori. Karen 8S. Crawford United States Magistrate Judge 24 25 26 27 28