Bungie, Inc. v. Thorpe

• Court: District Court, N.D. California
• Decided: November 8, 2021
• Docket: 3:21-cv-05677
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BUNGIE, INC., et al., Case No. 21-cv-05677-EMC (DMR)

8 Plaintiffs, ORDER DENYING WITHOUT 9 v. PREJUDICE EX PARTE APPLICATION FOR LEAVE TO TAKE 10 ANDREW THORPE, et al., LIMITED EARLY DISCOVERY 11 Defendants. Re: Dkt. No. 11

12 13 Plaintiffs Bungie, Inc. (“Bungie”), Ubisoft Entertainment, and Ubisoft, Inc. (together, 14 “Ubisoft”) own and publish two popular online multiplayer video games. They claim that 15 Defendants Andrew Thorpe, Jonathan Agueda, Wesam Mohammed, Ahmad Mohammed, and a 16 number of unnamed defendants (the “Doe Defendants”) operate an online business venture called 17 Ring-1 that sells software that provides cheats and hacks to Plaintiffs’ games. Plaintiffs allege 18 violations of copyright, trademark, and related laws. 19 Plaintiffs make this ex parte application for leave to take limited early discovery pursuant 20 to Federal Rule of Civil Procedure 26(d) and Civil Local Rule 7-10 to identify nine anonymous 21 Doe Defendants. Application for Leave (“Appl.”) [Docket No. 11]. The Honorable Edward M. 22 Chen referred this matter to the undersigned for resolution. This matter is suitable for 23 determination without oral argument. Civil L.R. 7-1(b). The court denies Plaintiffs’ application 24 without prejudice. 25 I. BACKGROUND 26 Plaintiffs are the owners and publishers of the online multiplayer video games “Destiny 2” 27 and “Tom Clancy’s Rainbow Six: Siege” (“R6S”) (the “Games”). Compl. ¶ 1 [Docket No. 1]. 1 against computer-controlled opponents or fight against one another. Id. ¶¶ 22-23. Bungie offers 2 Destiny 2 to the public for free; players simply download the software online. Id. ¶ 43. Players 3 must purchase in-game currency to acquire optional items, unlock new characters, or gain access 4 to exclusive content. Id. Bungie owns all rights to Destiny 2 and multiple trademarks associated 5 with that software franchise. Id. ¶¶ 29-30. Bungie is incorporated in Delaware with its principal 6 place of business in Bellevue, Washington. Id. ¶ 9. 7 R6S, created by Ubisoft, is a game in which a player assumes the role of an elite special 8 forces operative. Id. ¶ 27. Each player must cooperate with other team members against a 9 competing team to complete certain military-themed objectives. Id. Players must purchase a copy 10 of the game or a license from a digital retailer. Id. ¶ 44. Players may acquire more items in game 11 either on a “free” track or a “premium” track, the latter of which is available for purchase and that 12 unlocks access to new benchmarks in the game and additional items. Id. ¶¶ 44-45. Ubisoft owns 13 all rights to R6S and multiple trademarks associated with that software franchise. Id. ¶¶ 12, 35-36. 14 Ubisoft Entertainment is incorporated and organized in France, while Ubisoft, Inc. is organized in 15 California. Id. ¶¶ 10-11. 16 Plaintiffs claim that Defendants are engaged in developing, selling, and supporting 17 software for sale to the public on the Ring-1 website that allows players to manipulate the Games 18 to their own advantage (the “Cheating Software”). Id. ¶ 2. Defendants are software developers, 19 operators or moderators of the Ring-1 website and its community forum, customer support and 20 technical assistance providers, and/or resellers who acquire and resell keys for the Ring-1 21 software. Id. ¶ 64. They sell weekly and monthly access to the Cheating Software for both 22 Games. Id. ¶ 65. Licenses for the Cheating Software are also available for purchase at authorized 23 resellers. Id. ¶ 66. Defendants provide extensive and ongoing customer support for the Cheating 24 Software. Id. ¶ 68. Plaintiffs allege the Defendants have made tens or hundreds of thousands of 25 dollars from distribution and sale of the Cheating Software. Id. ¶ 67. 26 Plaintiffs claim that Defendants unlawfully accessed Plaintiffs’ software code to develop 27 the Cheating Software, which modifies and alters the way players engage with the games and 1 reproduce and use an array of images and artworks from the Games to market the Cheating 2 Software on the Ring-1 website. Id. ¶¶ 64-69. 3 According to Plaintiffs, Defendants’ Cheating Software severely damages their business 4 model. Id. ¶ 47. Plaintiffs generate revenue from the sale of game content, virtual currencies, 5 digital enhancements or expansions, and other so-called Battle Passes (which Plaintiffs describe as 6 a “microtransaction system” in R6S). Id. ¶¶ 44, 46. Plaintiffs say that “[i]f players perceive others 7 are cheating or have an unfair advantage, they may grow frustrated with the Games and stop 8 playing them,” which will disrupt the online player community. Id. ¶ 47. Despite Plaintiffs’ use 9 of anti-cheat technologies that are installed on players’ computers when the software is installed, 10 entities like Ring-1 devise methods to avoid the detection of their cheating software, thereby 11 generating an “arms race” of sorts between game developers like Plaintiffs and architects of 12 cheating software like Defendants. Id. ¶¶ 52-56. 13 The complaint names four Defendants who are allegedly Ring-1 staff members or 14 community members: (1) Andrew Thorpe, known by his online alias “Krypto,” who is based in 15 the United Kingdom; (2) Jonathan Agueda, a/k/a “Overpowered,” based in Florida; (3) Wesam 16 Mohammed, a/k/a “Grizzy,” based in Indiana, and (4) Ahmad Mohammed, also based in Indiana. 17 Compl. ¶¶ 13-16. The complaint also names Doe Defendants who are involved with the Ring-1 18 operation and who provide customer support, are moderators and/or administrators of the Ring-1 19 website, resell the Cheating Software, and/or develop and maintain the Cheating Software. Id. 20 ¶ 19; Appl. at 4-5. Plaintiffs allege violations of the Digital Media Copyright Act, 17 U.S.C. 21 § 1201(a)(2), the federal Copyright Act, the Lanham Act, the Computer Fraud and Abuse Act, 22 California’s Unfair Competition Law, and intentional interference with contractual relations. 23 Plaintiffs request early discovery to ascertain the identities of nine Doe Defendants 24 allegedly involved in the Ring-1 venture, known only by their online aliases “Berserker,” 25 “Cypher,” “Admin,” “Calc,” “Overseer,” “Tralepo,” “Frost,” “Dove,” and “Pingu.” Appl. at 4-5. 26 Plaintiffs seek to issue third-party subpoenas to the following eleven entities that they suspect 27 have information that will help identify the Doe Defendants: NameSilo, LLC; Cloudflare, Inc.; 1 Google LLC; Apple Inc.; PayPal, Inc.; and Vimeo.com, Inc. Appl. at 5. These entities are 2 possible domain name registrars, content distributors, web hosts, communication applications, and 3 payment processors. Id. at 5-7. The subpoenas seek the names, addresses, email addresses, and 4 other identifying information of persons or entities who registered and use the aliases at issue with 5 accounts administered by the third parties, as well as the Internet Protocol (IP) addresses used to 6 access these accounts. Id. at 7. 7 II. LEGAL STANDARD 8 In the Ninth Circuit, “exceptions to the general rule” that discovery may not be initiated 9 prior to the Federal Rule of Civil Procedure 26(f) conference are “generally 10 disfavored.” Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing 11 Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). However, a court may authorize earlier 12 discovery “for the parties’ and witnesses’ convenience and in the interests of justice.” Fed. R. Civ. 13 P. 26(d)(3). Courts have permitted “limited discovery . . . after [the] filing of the complaint to 14 permit the plaintiff to learn the identifying facts necessary to permit service on the 15 defendant.” Columbia, 185 F.R.D. at 577; see also Gillespie, 629 F.2d at 642 (“[W]here the true 16 identity of the defendants will not be known prior to the filing of a complaint . . . the plaintiff 17 should be given an opportunity through discovery to identify the unknown defendants, unless it is 18 clear that discovery would not uncover the identities, or that the complaint would be dismissed on 19 other grounds”). The plaintiff must show good cause for early discovery. Semitool, Inc. v. Tokyo Electron 20 Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be found where the need for 21 expedited discovery, in consideration of the administration of justice, outweighs the prejudice to 22 the responding party.” Id.; see also Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1066 23 (C.D. Cal. 2009) (“The party seeking expedited discovery . . . has the burden of showing good 24 cause for the requested departure from usual discovery procedures” (quoting Qwest Commc’ns 25 Int’l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003)). 26 In evaluating whether a plaintiff establishes good cause to learn the identity of Doe 27 1 only be employed in cases where the plaintiff has in good faith exhausted traditional avenues for 2 identifying a civil defendant pre-service, and will prevent use of [early discovery] to harass or 3 intimidate.” Columbia, 185 F.R.D. at 578. Courts examine whether the plaintiff (1) has 4 “identif[ied] the missing party with sufficient specificity such that the Court can determine that the 5 defendant is a real person or entity who can be sued in federal court,” (2) recounted “all previous 6 steps taken to locate the elusive defendant,” (3) established that the action can withstand a motion 7 to dismiss, and (4) demonstrated a “reasonable likelihood that the discovery process will lead to 8 identifying information about [the] defendant that would make service of process possible.” Id. at 9 578-80. 10 “Generally, ex parte applications for early discovery are accompanied by declarations 11 which explain the party’s efforts to determine the individual’s identity and why the plaintiff 12 believes that subpoenas to particular service providers would yield information regarding a 13 defendant’s identity.” Bellwether Coffee Co. v. Does 1-5, No. 21-03612-JSC, 2021 WL 2333848, 14 at *1 (N.D. Cal. June 8, 2021); see Columbia, 185 F.R.D. at 580 (calling for “a statement of 15 reasons justifying the specific discovery requested as well as identification of a limited number of 16 persons or entities on whom discovery process might be served”). The court considers the moving 17 papers along with the complaint to determine if the plaintiff made a satisfactory showing of good 18 cause. See Columbia, 185 F.R.D. at 580-81; Am. Legalnet, 673 F. Supp. 2d at 1071 (considering 19 declarations filed in support of a motion for preliminary injunction for purposes of deciding 20 application for early discovery); see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. 21 O’Connor, 194 F.R.D. 618, 624 (N.D. Ill. 2000) (courts must examine expedited discovery 22 requests on the “entirety of the record”). 23 III. DISCUSSION 24 The first requirement, to identify the unknown parties with “sufficient specificity,” is 25 “necessary to ensure that federal requirements of jurisdiction and justiciability can be satisfied.” 26 Columbia, 185 F.R.D. at 578. Plaintiffs must make a “satisfactory showing that there is an actual 27 person behind the [challenged] acts who would be amenable to suit in federal court.” Id. at 578. 1 likely have personal jurisdiction over the defendant. See, e.g., id. (finding that the first factor was 2 met where there was evidence most of the unknown defendants had a California domicile); Lik v. 3 Doe, No. 20-cv-255-DMR, 2020 WL 1984281 (N.D. Cal. Apr. 27, 2020); JT Foxx Org. v. Palmer, 4 No. 17-cv-2661-DMR, 2017 WL 3617111, at *4 (N.D. Cal. Aug. 23, 2017) (determining that the 5 first factor was not met because the plaintiff did not demonstrate that the court likely had personal 6 jurisdiction over the defendant). Plaintiffs bear the burden of establishing jurisdictional facts. 7 Columbia, 185 F.R.D. at 578 (citing Wells Fargo & Co v. Wells Fargo Exp. Co., 556 F.3d 406, 8 430 n.24 (9th Cir. 1977)). “A court need not grant discovery based on “‘purely speculative 9 allegations of attenuated jurisdictional contacts.’” Graco Minnesota Inc. v. PF Brands, Inc., No. 10 18-cv-1690, 2019 WL 1746580, at *7 (S.D. Cal. Apr. 17, 2019) (quoting Getz v. Boeing Co., 654 11 F.3d 852, 860 (9th Cir. 2011)). The court examines Plaintiffs’ complaint, application, and 12 accompanying declaration to determine if they have made a sufficient showing of good cause as to 13 jurisdiction. See Bellwether Coffee, 2021 WL 2333848, at *1; Malibu Media, LLC v. Doe, 319 14 F.R.D. 299, 305 (E.D. Cal. 2016) (allegation in complaint that plaintiff traced Doe defendant’s IP 15 address to physical address located within court’s jurisdiction established good cause to serve 16 immediate discovery). 17 Plaintiffs have sufficiently identified Defendants’ online aliases to establish that they are 18 real persons and entities that may be sued. Compl. ¶¶ 17-21; Appl. at 4-5. However, they have 19 not sufficiently shown that they may be sued in this court. In the complaint, Plaintiffs summarily 20 allege that “[t]his Court has personal jurisdiction over Defendants because they have purposefully 21 directed their activities at the United States, and at California in particular, have purposefully 22 availed themselves of the benefits of doing business in California, and have established a 23 continuing presence in California.” Compl. ¶ 7. They allege that Defendants “conduct extensive 24 and ongoing business with users in the United States and the State of California”; they “distribute . 25 . . advertise and market the Cheating Software . . . and communicate directly with users” in these 26 locations; they “have entered into, and continue to enter into, contracts with individuals” in these 27 locations and receive “recurring daily, weekly, or monthly payments” from them; they “contract 1 and they “engage in conduct that they know is likely to cause harm to Plaintiffs in the United 2 States and the State of California.” Id. Elsewhere, they allege that, on information and belief, 3 “players residing in the United States and in the California” have downloaded and used the 4 Cheating Software. Id. ¶ 67. In their application, Plaintiffs assert that Doe Defendants, “a 5 mixture of U.S. and foreign individuals,” are “subject to personal jurisdiction in U.S. federal 6 courts.” Appl. at 9. 7 Plaintiffs do not provide concrete information supporting personal jurisdiction in 8 California in their application or the supporting declaration from their counsel. See id.; 9 Declaration of Marc E. Mayer (“Mayer Decl.”) [Docket No. 11-1]. Altogether, the conclusory 10 statements in their pleadings and moving papers do not meet the standard sufficient to show good 11 cause to depart from normal discovery procedures. See Columbia Ins., 185 F.R.D. at 577. 12 A. Legal Standard for Personal Jurisdiction 13 Personal jurisdiction is proper if it is “consistent with [California’s] long-arm statute and if 14 it comports with due process of law.” Boschetto v. Hansing, 539 F.3d 1011, 1020-21 (9th Cir. 15 2008). Under California’s long-arm statute, a federal court may exercise personal jurisdiction 16 over a defendant to the extent permitted by the Due Process Clause of the Constitution. Cal. Code 17 Civ. Proc. § 410.10; Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800-01 (9th Cir. 18 2004). “A district court’s exercise of jurisdiction over a nonresident defendant comports with due 19 process when the defendant has at least ‘minimum contacts’ with the forum and subjecting the 20 defendant to an action in that forum would ‘not offend traditional notions of fair play and 21 substantial justice.’” Ayla, LLC v. Alya Skin Pty. Ltd., 11 F.4th 972, 979 (9th Cir. 2021) (quoting 22 Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “A defendant’s minimum contacts can 23 give rise to either general or specific jurisdiction.” Id. Parties may also consent to jurisdiction 24 through a forum selection clause. S.E.C. v. Ross, 504 F.3d 1120, 1149 (9th Cir. 2007). The 25 court’s “primary concern” is “the burden on the defendant.” Axiom Foods, Inc. v. Acerchem Int’l, 26 Inc., 874 F.3d 1064, 1068 (9th Cir. 2017) (quoting Bristol-Meyers Squibb Co. v. Super. Ct, 137 S. 27 Ct. 1773, 1780 (2017)). “Although lack of personal jurisdiction is a defense that may be waived 1 against an absent defendant.” U.S. Olympic Comm. v. Does 1-10, No. 08-03514-JSW, 2008 WL 2 2948280, at *1 (N.D. Cal. July 25, 2008) (citing In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999)). 3 The court considers all three bases for personal jurisdiction and finds that none are satisfied. 4 B. General Jurisdiction 5 Plaintiffs have not shown the existence of general jurisdiction. “For an individual, the 6 paradigm forum for the exercise of general jurisdiction is the individual’s domicile; for a 7 corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home.” 8 Bristol-Myers, 137 S. Ct. at 1780. Plaintiffs state that the nine Doe Defendants whose identity 9 they seek to discover are all individuals involved with Ring-1’s operation. Compl. ¶¶ 17-20; 10 Appl. at 4-5. However, they do not offer any facts in their complaint, application, or declaration 11 from which the court may infer that these unnamed individuals are domiciled in California. Other 12 courts in this district have allowed early discovery to go forward to identify online Doe defendants 13 after the plaintiffs demonstrated that they used geolocation technology to trace the defendants’ IP 14 addresses to physical locations in California. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 21- 15 CV-00294-SI, 2021 WL 493395, at *1 (N.D. Cal. Feb. 10, 2021); Dallas Buyers Club LLC v. 16 Doe-69.181.52.57, No. 16-cv-1156-JSC, 2016 WL 4259116, at *2 (N.D. Cal. Aug. 12, 2016); AF 17 Holdings LLC v. Doe, No. 12-04447 RMW, 2012 WL 12973140, at *2 (N.D. Cal. Nov. 6, 2012); 18 Braun v. Doe, No. 12-CV-3690-JSC, 2012 WL 3627640, at *2 (N.D. Cal. Aug. 21, 2012); Pac. 19 Century Int’l, Ltd. v. Does 1-48, No. C11-3823-MEJ, 2011 WL 4725243, at *2 (N.D. Cal. Oct. 7, 20 2011). There is no indication in Plaintiffs’ papers that they previously attempted to trace the Doe 21 Defendants’ IP addresses or other information to California addresses; indeed, Plaintiff seek the IP 22 addresses through their subpoenas. Accordingly, there is nothing from which the court can infer 23 the existence of general jurisdiction.1 24 C. Specific Jurisdiction 25 Plaintiffs appear to invoke specific personal jurisdiction by reciting the relevant legal 26 27 1 None of the named Defendants appear to be domiciled or “at home” in California but rather in 1 standard in their complaint, but they have not made a sufficient showing to infer jurisdiction on 2 that basis either. See Compl. ¶ 7. “There are three requirements for a court to exercise specific 3 jurisdiction over a nonresident defendant: (1) the defendant must either ‘purposefully direct his 4 activities’ toward the forum or ‘purposefully avail[ ] himself of the privileges of conducting 5 activities in the forum; (2) ‘the claim must be one which arises out of or relates to the defendant’s 6 forum-related activities’; and (3) ‘the exercise of jurisdiction must comport with fair play and 7 substantial justice, i.e. it must be reasonable.’” Axiom, 874 F.3d at 1068. The court’s “analysis 8 under the ‘purposeful availment or direction’ prong of the specific jurisdiction test turns on the 9 nature of the underlying claims.” Ayla, 11 F.4th at 979. Plaintiffs allege copyright and trademark 10 infringement claims which sound in tort, so the court applies the “purposeful direction” analysis 11 under Calder v. Jones, 465 U.S. 783 (1984). AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 12 1208 (9th Cir. 2020); see also Ayla, 11 F.4th at 979; Axiom, 874 F.3d at 1069. “Under this test, 13 ‘the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the 14 forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.’” 15 AMA Multimedia, 970 F.3d at 1209 (quoting Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 16 1218, 1228 (9th Cir. 2011)). The plaintiff bears the burden under the first two prongs. Ayla, 11 17 F.4th at 979. 18 With respect to the first prong, “a defendant acts intentionally when he acts with ‘an intent 19 to perform an actual, physical act in the real world, rather than an intent to accomplish a result or 20 consequence of that act.’” AMA Multimedia, 970 F.3d at 1209 (quoting Schwarzenegger, 374 21 F.3d at 806)). Plaintiffs allege that “Defendants collectively are engaged in developing, updating, 22 marketing, distributing, selling, deploying, and supporting the Cheating Software.” Compl. ¶ 64. 23 The complaint describes a concerted effort to access Plaintiffs’ software clients without 24 authorization, develop the Cheating Software, and publicly sell it through the Ring-1 website and 25 third-party resellers. Id. ¶¶ 64-73. These constitute intentional acts for the purposes of 26 establishing the first prong of the Calder test. See AMA Multimedia, 970 F.3d at 1209. 27 However, Plaintiffs do not meet the second prong because they have not sufficiently 1 the “express aiming” test requires a showing that “the defendant’s conduct connects him to the 2 forum in a meaningful way,” not merely to a forum resident. Walden v. Fiore, 571 U.S. 277, 290 3 (2014) (emphasis added); see also Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1148-49 (9th Cir. 4 2017) (“Plaintiffs were required to make a prima facie showing that Defendants’ alleged actions 5 were directed at [the forum state], not just at individuals who resided there.”). “Express aiming 6 requires more than the defendant’s awareness that the plaintiff it is alleged to have harmed resides 7 in or has strong ties to the forum, because ‘the plaintiff cannot be the only link between the 8 defendant and the forum.’” Ayla, 11 F.4th at 980 (quoting Walden, 571 U.S. at 285). 9 “‘[S]omething more—conduct directly targeting the forum’—is required to confer personal 10 jurisdiction.” Id. (quoting Mavrix, 647 F.3d at 1229). In the case of a nationally accessible 11 passive website, that “something more” could constitute the “interactivity of the defendant’s 12 website, the geographic scope of the defendant’s commercial ambitions, and whether the 13 defendant individually targeted a plaintiff known to be a forum resident.” Mavrix, 647 F.3d at 14 1228 (internal citations and quotations omitted). 15 District courts in California have “declined to find express aiming based on alleged sales 16 of products that infringe intellectual property rights through commercial, interactive websites 17 accessible to California consumers.” Graco, 2019 WL 1746580, at *4-6 (sale of allegedly 18 infringing products through online customers, at least some in California, and California-based 19 plaintiff insufficient to show California was “focal point” of the alleged harm). Recently, a court 20 in this district granted a Rule 12(b)(2) motion where the defendant had allegedly distributed an 21 app-based videogame that was a “blatant clone” of the plaintiff’s copyrighted videogame. Good 22 Job Games Bilism Yazilim Ve Pazarlama A.S. v. SayGames LLC, 458 F. Supp. 3d 1202, 1205 23 (N.D. Cal. May 7, 2020) (Chen, J.). There, the plaintiff argued that the defendant “expressly 24 aimed its infringing act to California by: (1) contracting to distribute its game through Apple and 25 Google, both of which have headquarters in California; (2) making its game available to users in 26 California; (3) advertising the game with California-based companies like Facebook; and (4) 27 offering the game in English.” Id. at 1207. The court held that “[t]he mere availability of 1 Id. at 1207. The allegedly infringing game had “no specific focus in California; the app-based 2 videogame is not about California or anything in/from California.” Id. at 1209. None of the 3 defendant’s advertisements were directed at California or even mentioned this state. Id. The court 4 also noted that there was no evidence that the downloads of the infringing game were 5 “concentrated in California” and no allegations that there was “anything unique about the 6 California-consumer market” that directed the defendant’s activities to this forum. See id. at 1210. 7 Here, Plaintiffs have not shown that each Doe Defendant sought to engage a significant 8 California user base for the Cheating Software. In fact, Plaintiffs “ha[ve] not identified anything 9 unique about California that caused [the Doe Defendants] to target this forum state.” Good Job 10 Games, 458 F. Supp. 3d at 1207. To begin with, all of Plaintiffs’ relevant allegations describe 11 Defendants’ aggregate conduct and activities with users “in the United States and the State of 12 California.” By lumping California together with the rest of the United States, it is impossible to 13 analyze whether each Doe Defendant expressly aimed their intentional acts at the forum state. 14 Plaintiffs allege, for example, that Defendants “communicate[d] directly with users in the United 15 States and California” and that “the Cheating Software has been downloaded and used . . . 16 including by players residing in the United States and in California.” Compl. ¶¶ 7, 67. 17 As was the case in Good Job Games, Plaintiffs’ non-specific allegations that the Doe 18 Defendants conduct business with and market to U.S. and California users, and contract with 19 forum-based third parties, are insufficient to establish purposeful direction. See id. Plaintiffs do 20 not specifically describe any users in California, any particular business dealings the Doe 21 Defendants had in California or with California-based entities, or any advertisements or content 22 focused on Game players in California. “The mere availability of downloading [the Cheating 23 Software] in California, by itself, does not create personal jurisdiction.” Good Job Games, 458 F. 24 Supp. 3d at 1208; see Compl. ¶ 67. 25 To the extent Plaintiffs seek to invoke jurisdiction based on contracts between the Ring-1 26 website and third-party entities such as NameSilo, Cloudfare, and PayPal, their efforts fall short. 27 Compl. ¶ 7(d). Plaintiffs fail to describe these contracts in sufficient detail for the court to infer 1 of each contract—for example, “Plaintiffs believe that NameSilo, LLC was the [domain name] 2 registrar used to register . . . the domain for the Ring-1 Website”—but they do not show that these 3 third-party entities are headquartered in California, that there are contracts between any of the 4 entities and any of the Doe Defendants, or that the contracts demonstrate express aiming by each 5 Doe Defendant at California. Appl. at 5-7; see Good Job Games, 458 F. Supp. 3d at 1208 (ruling 6 that plaintiff could not rely on relationships with “third parties headquartered in California to 7 establish that [defendant] directed its intentional acts toward this state because the focal of those 8 headquarters in California are unrelated to [defendant’s] interests in the transaction at issue.”).2 9 In sum, Plaintiffs must establish “something more” in how the Doe Defendants focused on 10 California to warrant jurisdiction here. Mavrix, 647 F.3d at 1228. Compare Ayla, 11 F.4th at 980 11 (specific jurisdiction where defendant’s specific marketing, sales, and operations that “reflect[ed] 12 significant focus” with an “intentional, explicit appeal” to consumers in forum), and Mavrix, 647 13 F.3d at 1230 (website maintained a “specific focus on the California-centered celebrity and 14 entertainment industries”), with AMA Multimedia, 970 F.3d at 1210-12 (pornography website’s 15 uploading features and advertisements lacked “forum-specific focus”), and Axiom, 874 F.3d at 16 1070-71 (no express aiming where only ten recipients of alleging infringing newspaper in 17 California). Because of Plaintiffs’ “purely speculative allegations of attenuated jurisdictional 18 contacts,” early discovery is not warranted at this stage. Getz, 654 F.3d at 860.

19 D. Consent Jurisdiction 20 Plaintiffs do not appear to argue that the Doe Defendants affirmatively consented to 21 jurisdiction in California through a forum selection clause. See, e.g., Binbit Argentina, S.A. v. 22 Does 1-25, No. 19-cv-5384-KAW, 2020 WL 4284816 at *2 (N.D. Cal. July 27, 2020) (granting 23 early discovery where unnamed defendants that contracted with California-based companies 24 assented to forum selection clause in websites’ terms of use). 25 In sum, the Plaintiffs have not established good cause to issue the subpoenas to discover 26 identities of the Doe Defendants because they have not met the jurisdictional requirement that the 27 1 Doe Defendants may be sued in this court. For the same reason, Plaintiffs would not be able to 2 || withstand a motion to dismiss. See Columbia Ins. Co., 185 F.R.D. at 578-79. 3 || IV. CONCLUSION 4 Because Plaintiffs have not met their burden of showing the existence of personal 5 jurisdiction over the Doe Defendants, the court need not reach the remaining Columbia 6 || requirements. However, it is worth noting that Plaintiffs may also have problems satisfying the 7 second element, which requires them to show they “ma[de] a good faith effort to comply with the 8 || requirements of service of process and specifically identify[] defendants.” Columbia, 185 F.R.D. 9 at 578. The cursory explanation in counsel’s declaration that Plaintiffs’ investigators made “best 10 efforts” to ascertain the Doe Defendants’ identities, Mayer Decl. §] 7, does not detail what steps 11 were taken. 12 For the foregoing reasons, the court denies Plaintiffs’ ex parte application for early 5 13 discovery without prejudice. See JT Foxx, 2017 WL 3617111, at *6 (denying ex parte application 14 || for early discovery on jurisdictional grounds alone); Berlin Media Art e.k. v. Does 1-654, No. 11- 3 15 || 03770-JSC, 2001 WL 36383080, at *3 (N.D. Cal. Oct. 18, 2011) (same). 16

= 17 IT IS SO ORDERED. 18 Dated: November 8, 2021 19 L □□ onna M. Ryu 20 nited States Magistrate Judge 21 22 23 24 25 26 27 28