Stebbins v. Doe

Opinion

DAVID A. STEBBINS, Case No. 23-cv-00321-DMR

Plaintiff, ORDER GRANTING IFP APPLICATION; DENYING PETITION v. FOR ISSUANCE OF SUBPOENA WITOUT PREJUDICE TO RE-FILING Defendant. Re: Dkt. Nos. 2, 6

Plaintiff David A. Stebbins filed an application for leave to proceed in forma pauperis (“IFP”). [Docket Nos. 1, 2.] The court also received Plaintiff’s “petition for issuance of subpoena duces tecum.” [Docket No. 6.] Plaintiff is an active user of streaming services YouTube and Twitch. Compl. ¶1. He alleges ten counts of defamation against an anonymous YouTube user known as “SidAlpha.” Id. ¶ 2. Specifically, Plaintiff contends that on February 12, 2022, SidAlpha posted a video on his YouTube channel “dedicated to smearing” him. Id. ¶ 7. Having considered Plaintiff’s papers, the court grants the IFP application. The court’s grant of Plaintiff’s application to proceed IFP does not mean that he may continue to prosecute the complaint. A court is under a continuing duty to dismiss a case filed without the payment of the filing fee whenever it determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Here, the court first reviews Plaintiff’s petition for issuance of subpoena duces tecum prior to screening the complaint under 28 U.S.C. § 1915 because the court’s determination as to the propriety of the requested subpoena will necessarily discuss Plaintiff’s allegations, which will then explained below, the petition for issuance of subpoena duces tecum is denied without prejudice to Plaintiff’s ability to re-file the request addressing the following issues. Plaintiff’s petition for issuance of subpoena duces tecum seeks leave to serve a subpoena on a third party, Google LLC, to determine the identity and address of Defendant John Doe. [Docket No. 6 at 1.] Plaintiff asserts that Defendant’s identity and address are “necessarily on file with Google LLC” because Defendant is a member of the YouTube Partner Program.” Id. He intends to serve a Rule 45 subpoena on Google LLC seeking “the name, current address, all IP addresses used for the past two (2) years, and all phone numbers used in the same time period, associated with the Google Adsense account affiliated with the YouTube channel www.youtube.com/@SidAlpha.” [Docket No. 6-1.] Plaintiff’s petition does not contain any legal argument. Under Federal Rule of Civil Procedure 26(d), “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.” In the Ninth Circuit, courts use the “good cause” standard to determine whether discovery should be allowed to proceed prior to a Rule 26(f) conference. UMG Recordings, Inc. v. Doe, No. C 08-1193 SBA, 2008 WL 4104214, at *4 (N.D. Cal. Sept. 3, 2008). Good cause may generally be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party. Id.; see also Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). When deciding if good cause exists, courts consider: “whether (1) the plaintiff can identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court; (2) the plaintiff has identified all previous steps taken to locate the elusive defendant; (3) the plaintiff’s suit against defendant could withstand a motion to dismiss; and (4) the plaintiff has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of process would be possible.” Hard Drive Prods., Inc. v. Does 1-90, No. C11-03825 HRL, 2012 WL F.R.D. 573 (N.D. Cal. 1999). Plaintiff’s petition does not address any of the factors enumerated in Hard Drive Prods., Inc.. Plaintiff’s petition is denied without prejudice. If Plaintiff files a new request to serve a third-party subpoena prior to a Rule 26(f) conference, the submission must address the deficiencies identified in this order. Specifically, Plaintiff must submit briefing and evidence addressing the factors enumerated in Hard Drive Prods., Inc.. As explained above, the court has determined that it makes sense to screen Plaintiff’s complaint pursuant to 28 U.S.C. § 1915 after it rules on Plaintiff’s petition. However, if the court does not receive a new request to serve a third- party subpoena by June 12, 2023, it will screen the complaint based on the current record. The court refers Plaintiff to the section “Representing Yourself” on the Court’s website, located at https://cand.uscourts.gov/pro-se-litigants/, as well as the Court’s Legal Help Centers for unrepresented parties. Parties may schedule an appointment by calling 415-782-8982 or emailing fedpro@sfbar.org. Dated: May 22, 2023 ______________________________________ Donna M. Ryu Chief Magistrate Judge