Strike 3 Holdings, LLC v. Doe

319 F. Supp. 3d 326
Procedural entryThis page is a short order in Strike 3 Holdings, LLC v. Doe. Read the opinion of the Court — 351 F. Supp. 3d 160
Court of Appeals for the D.C. Circuit·Decided August 3, 2018·No. Civil Action No. 18-cv-1430 (TJK)·Published

Opinion

TIMOTHY J. KELLY, United States District Judge

Before the Court is Plaintiff's Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. ECF No. 3. For the reasons stated herein, this Motion is GRANTED .

I. FACTUAL BACKGROUND

Plaintiff Strike 3 Holdings, LLC owns the rights to certain adult entertainment films. ECF No. 1 ("Compl.") ¶¶ 1-2. Plaintiff alleges that Defendant, currently identified as John Doe subscriber assigned IP address 100.15.230.159, has been downloading and distributing these films using a BitTorrent protocol in violation of the Copyright Act, 17 U.S.C. § 101 et seq. Compl. ¶¶ 4-6, 23-32. Plaintiff further alleges that it used geolocation technology to trace the IP address used by Defendant to a physical address in the District of Columbia. Id. ¶ 9.

Plaintiff has moved for leave to file a third-party subpoena on Defendant's internet service provider ("ISP") to "learn Defendant's identity, investigate Defendant's role in the infringement, and effectuate service." ECF No. 3-5 ("Pl.'s Mem.") at 1-2. Plaintiff asserts that the subpoena "will only demand the true name and address of Defendant" and that the information will only be used to prosecute claims in its complaint. Id. at 2.

II. LEGAL STANDARD

A party ordinarily "may not seek discovery from any source" prior to a conference under Rule 26(f) unless "authorized ... by court order." Fed. R. Civ. P. 26(d)(1). "To determine whether to authorize discovery prior to a Rule 26(f) conference in a particular case, this district has applied a 'good cause' standard." Malibu Media, LLC v. Doe , 64 F.Supp.3d 47, 49 (D.D.C. 2014) (quoting Warner Bros. Records v. Does 1-6 , 527 F.Supp.2d 1, 2 (D.D.C. 2007) ). "Good cause to take discovery prior to the Rule 26(f) conference exists where the discovery is necessary *329'before th[e] suit can progress further.' " Malibu Media, LLC v. Doe , No. 15-cv-986, 2015 WL 5173890, at *1 (D.D.C. Sept. 2, 2015) (alteration in original) (quoting Arista Records LLC v. Does 1-19 , 551 F.Supp.2d 1, 6 (D.D.C. 2008) ).

A plaintiff also "must 'have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant[s].' " AF Holdings, LLC v. Does 1-1058 , 752 F.3d 990, 995 (D.C. Cir. 2014) (alteration in original) (quoting Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC , 148 F.3d 1080, 1090 (D.C. Cir. 1998) ). "The Copyright Act does not provide for the exercise of personal jurisdiction over alleged infringers on any basis." Malibu Media, LLC v. Doe , 177 F.Supp.3d 554, 556 (D.D.C. 2016) (citing Exquisite Multimedia, Inc. v. Does 1-336 , No. 11-cv-1976, 2012 WL 177885, at *2 (D.D.C. Jan. 19, 2012) ). Thus, a plaintiff "must predicate this Court's jurisdiction over the infringers on the reach of District of Columbia law." Id. Under the District of Columbia's long-arm statute, "the only conceivable way that personal jurisdiction might properly be exercised" is if Defendant is a "resident[ ] of the District of Columbia or at least downloaded the copyrighted work in the District." AF Holdings , 752 F.3d at 996 (citing D.C. Code § 13-423(3), (4) ).

III. ANALYSIS

Plaintiff has satisfied the good cause standard to serve discovery prior to a Rule 26(f) conference. As an initial matter, "this suit cannot move forward without Plaintiff first being able to identify Defendant so that service can be effected." Malibu Media, LLC v. Doe , No. 16-cv-639, 2016 WL 1698263, at *2 (D.D.C. Apr. 27, 2016). According to a declaration provided by Plaintiff, Defendant's internet service provider is the only entity that can identify Defendant by correlating the IP address that has been linked to the alleged infringement with its subscriber. ECF No. 3-3 ¶ 10.

Plaintiff has also established a good faith belief that this Court has personal jurisdiction over Defendant. Plaintiff used geolocation technology to trace Defendant's IP address to a physical location within the District of Columbia. Pl.'s Mem. at 6. The D.C. Circuit "has suggested that reliance on 'geolocation services' of this sort is sufficient to justify a 'good faith belief' that a district court has personal jurisdiction over unknown defendants." Malibu Media , 2015 WL 5173890, at *2 (quoting A.F. Holdings , 752 F.3d at 996 ); see also Malibu Media , 2016 WL 1698263

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