Strike 3 Holdings, LLC v. Doe

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 STRIKE 3 HOLDINGS, LLC, Case No.: 19cv2452-JAH (LL)

9 Plaintiff, ORDER DENYING DEFENDANT’S: 10 v. (1) MOTION TO QUASH; (2) MOTION FOR SANCTIONS; AND 11 JOHN DOE subscriber assigned IP (3) MOTION TO DISMISS (Doc No. address 70.95.76.252 12 11) Defendant. 13

14 INTRODUCTION 15 Pending before the Court is Defendant John Doe’s (“Defendant”) motion to quash 16 the third-party subpoena that Plaintiff Strike 3 Holdings, LLC (“Plaintiff”) issued to 17 Defendant’s internet service provider (“ISP”). Additionally, Defendant moves to dismiss 18 Plaintiff’s Complaint under Fed. R. Civ. P. 41 and seeks sanctions under Fed. R. Civ. P. 19 11. Having carefully considered the pleadings in this action, and for the reasons set forth 20 below, the Court hereby DENIES Defendant’s motion to quash; motion for sanctions; and 21 motion to dismiss. 22 BACKGROUND 23 Plaintiff is the owner of adult-content movies distributed through websites and 24 DVDs. Doc. No. 1 at 1. Plaintiff alleges that Defendant has used the BitTorrent protocol to 25 download and distribute Plaintiff’s movies to others in violation of Plaintiff’s copyrights 26 in the material. Id. at 2. Specifically, Plaintiff asserts that Defendant anonymously 27 infringed its copyrights by illegally downloading and distributing 65 movies over an 28 1 extended period of time. Id. Plaintiff used an investigator to discover the IP address, where 2 its works were downloaded using BitTorrent, and found Defendant by his or her IP address 3 70.95.76.252, which is maintained by Defendant’s ISP. Id. 4 To establish Defendant’s identity, Plaintiff filed an equitable cause of action for a 5 bill of discovery in Florida state court, where Plaintiff’s servers are located. Doc. No. 1 at 6 2; Doc. No. 14 at 13. Defendant objected asserting that the action can be more properly 7 litigated in the federal court of his or her domicile. Doc. No. 1 at 2. Plaintiff dismissed the 8 Florida state action and agreed to litigate in federal court. Id. 9 On December 19, 2019, Plaintiff filed the complaint in this action. Shortly thereafter, 10 Plaintiff filed an ex parte application for leave to serve an early third-party subpoena on 11 Defendant’s ISP in order to identify the name and address of the subscriber associated with 12 the IP address. Doc. No. 5. In response to Plaintiff’s ex parte application for leave to serve 13 an early subpoena, Defendant responded, not with a motion to quash, but by simply 14 requesting the court to add personal privacy protections for John Does, along with draft 15 language, in the order. Plaintiff did not object to Defendant’s request to include 16 Defendant’s privacy provision. On February 19, 2020, in a detailed order, Judge Lopez 17 granted Plaintiff permission to serve the subpoena on Defendant’s ISP for the sole purpose 18 of obtaining the subscriber’s true name and address. Id. Judge Lopez found good cause to 19 permit early discovery and allowed Plaintiff to use the disclosed information only to protect 20 its rights in pursing this litigation in order to protect the subscriber’s privacy. Id. at 5. The 21 magistrate judge incorporated Defendant’s proposed provision verbatim in the order. 22 On March 1, 2020, Defendant filed a motion to quash the subpoena; motion for 23 sanctions; and a motion to dismiss Plaintiff’s complaint. Doc. No. 11. Plaintiff filed an 24 opposition and Defendant filed a reply. Doc. Nos. 14, 15. 25 /// 26 /// 27 /// 28 /// 1 DISCUSSION 2 I. Defendant’s Motion to Quash 3 A. Legal Standard 4 Under Federal Rule of Civil Procedure 45, any party may serve a subpoena 5 commanding a non-party “to attend and give testimony or to produce and permit inspection 6 [and] copying” of documents. Fed. R. Civ. P. 45(a)(1)(C). A party cannot simply object to 7 a subpoena served on a non-party, but rather must move to quash or seek a protective order. 8 Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005). Upon a timely motion, 9 the court may quash or modify the subpoena for any one of the reasons set forth in Rule 10 45(c)(3)(A), such as where the subpoena “requires disclosures of privileged or other 11 protected matter and no exception or waiver applies,” or it “subjects a person to undue 12 burden.” Fed. R. Civ. P. 45(c)(3)(A). In evaluating whether a subpoena is unduly 13 burdensome, “the court balances the burden imposed on the party subject to the subpoena 14 by the discovery request, the relevance of the information sought to the claims or defense 15 at issue, the breadth of the discovery request, and the litigants need for the information.” 16 Liberty Media Holdings v. Does 1-62, 2012 WL 628309, *2 (S.D. Cal. Feb. 24, 2012) 17 (citation omitted). “[T]he party who moves to quash a subpoena has the burden of 18 persuasion.” Moon, 232 F.R.D. at 637. 19 B. Discussion 20 Defendant makes three main arguments in support of his or her motion to quash: (1) 21 Defendant’s privacy rights are violated; the third-party subpoena subjects Defendant to 22 undue burden; and (3) Plaintiff’s complaint is subject to dismissal. 23 Generally, a party does not have standing to challenge a subpoena issued to a third 24 party, unless the party has some personal right or privilege relating to the information 25 sought. Vera v. O’Keefe, 2012 WL 909316, *1 (S.D. Cal. March 16, 2012). Defendant 26 contends that Plaintiff seeks to violate his or her privacy rights under the “Federal Cable 27 Privacy Act” by unmasking their identity “for the sole purpose of obtaining their name and 28 then harassing them in pursuit of a ‘shame settlement’ notwithstanding the fact [Plaintiff 1 has] no actual evidence.” Doc. No. 11-1 at 12. Defendant fails to provide any factual or 2 substantive evidence to support this allegation. In granting Plaintiff’s ex parte application 3 for expedited discovery, this Court specifically allowed Plaintiff to obtain “only the true 4 name and address of the subscriber” and prevented Plaintiff from obtaining any additional 5 information. Doc. No. 5 at 8. Additionally, Plaintiff is only allowed to use the information 6 obtained for the sole purpose “of protecting its rights in pursuing this litigation.” Id. Lastly, 7 Defendant’s motion for protective order was granted and prevents Plaintiff from revealing 8 the subscriber’s personally identifying information, unless the Court orders otherwise. 9 Doc. No. 8. As such, Defendant’s privacy concerns lack any merit as the Court took 10 precautionary measures to ensure Defendant’s privacy rights would not be violated. 11 Defendant next argues the subpoena should be quashed on the ground that it subjects 12 him or her to undue burden by forcing Defendant to first file a dismissal in the Florida 13 action, and now file a motion to quash in this action. Doc. No. 11-1 at 12. However, in the 14 context of copyrights cases, the “undue burden” contemplated by Rule 45 is the one placed 15 on the party to whom the subpoena is directed. See Liberty Media Holdings v. Does, 1-62, 16 2012 WL 628309, *2 (S.D. Cal. February 24, 2012) (holding that in evaluating whether a 17 subpoena is unduly burdensome, “the court balances the burden imposed on the party 18 subject to the subpoena by the discovery request”) (citations omitted); see also Mount Hope 19 Church v. Bash Back!, 705 F.3d 418, 428 (9th Cir. 2012) (holding that “undue burden” is 20 considered “the burden associated with compliance”). Here, Plaintiff’s subpoena was 21 issued to Defendant’s ISP, and not Defendant. Defendant is under no obligation to produce 22 any documents or information to Plaintiff. Furthermore, Defendant has not provided any 23 facts or evidence regarding the burden on the subpoenaed entity. The subpoena simply 24 requests only the name and address of the subscriber—which the Court finds egregious to 25 be considered “unduly burdensome.” 26 Lastly, Defendant argues the Court should quash the subpoena because Plaintiff’s 27 complaint is subject to dismissal. Doc. No. 11-1 at 3. Specifically, Defendant alleges 28 Plaintiff cannot satisfy the high-bar standards set by Cobbler Nevada LLC v. Gonzalez, 901 1 F.3d 1142 (9th Cir. 2018). Doc. No. 11-1 at 16. In Cobbler, the Ninth Circuit decided 2 “whether a bare allegation that a defendant is the registered subscriber of an [IP] address 3 associated with infringed activity is sufficient to state a claim for direct contributory 4 infringement.” Id. at 1144. The court concluded “[a] plaintiff must allege something more 5 to create a reasonable inference that a subscriber is also an infringer.” Id. Defendant argues 6 Plaintiff has failed to allege “something more” in the complaint to bypass the standard set 7 by Cobbler. However, as Plaintiff highlights, Defendant’s interpretation of Cobbler is 8 incorrect as the case was decided after early discovery occurred. The plaintiff in that case 9 was unable to plead “anything more” than the subscriber’s identity, even after obtaining 10 early discovery from the ISP. Id. at 1145-46. To have the Court now address some future 11 amended complaint that may be insufficient to overcome the Cobbler threshold is 12 premature. 13 Accordingly, for the foregoing reasons above, Defendant’s motion to quash is 14 DENIED. 15 II. Defendant’s Motion to Dismiss 16 Defendant alleges Plaintiff’s complaint should be involuntarily dismissed under 17 Rule 41(b) for failure to comply with Rule 8, as well as Rule 11. Doc. No. 11-1 at 16-17. 18 Additionally, Defendant contends a Rule 41(b) dismissal is warranted for Plaintiff’s 19 alleged delay and harassment caused to Defendant. Id. at 17. 20 A. Rule 8 21 Rule 8 of the Federal Rules of Civil Procedure requires only a “short and plain 22 statement of the claim showing that the pleader is entitled to relief,” in order to “give the 23 defendant fair notice of what the…claim is and the grounds upon which it rests.” Bell Atl. 24 Corp. v. Twombly, 550 U.S. 544, 545 (2007). Although styled as a motion under Rule 41, 25 Defendant seeks dismissal under Rule 8, on the grounds that Plaintiff fails to state a claim 26 for copyright infringement. Defendant continues to rely heavily upon Cobbler as a basis to 27 support the dismissal. However, as stated earlier, any motion to dismiss under Cobbler is 28 premature. A copyright plaintiff is permitted to seek early discovery from an ISP in order 1 to plead the “something more” necessary to satisfy a claim for copyright infringement 2 under Cobbler. 3 Here, Plaintiff has yet to obtain the subscriber’s information, and it is premature to 4 assume that the only fact Plaintiff will have after some discovery is conducted is the 5 subscriber’s identity. See Cobbler, 901 F.3d at 1145. District courts examining this exact 6 issue have held that “although an IP address and a subscriber’s name alone may be 7 insufficient to state a claim of infringement, Cobbler [] does not stand for the proposition 8 that subpoenas may not be used to determine a subscriber’s name.” Strike 3 Holdings, LLC 9 v. Doe, No. CV 19-00723 (JCS), 2019 WL 2996428, at *3 (N.D. Cal. July 9, 2019); see 10 also Strike 3 Holdings. LLC v. Does, No. 2:18-cv-0237-MCE-CKD, 2019 WL 935390, at 11 *2-3 (E.D. Cal. Feb. 26, 2019); Strike 3 Holdings, LLC v. Doe, No. 4:18-cv-04993-KAW, 12 2019 WL 468816, at *2 (N.D. Cal. Feb. 6, 2019). Lastly, a dismissal at this juncture would 13 prevent Plaintiff from protecting its copyright works, in that it would be prevented from 14 unveiling who is illegally downloading and distributing its content. Therefore, Defendant’s 15 motion for dismissal pursuant to a Rule 8 violation is DENIED. 16 B. Rule 11 17 Defendant seeks dismissal as a sanction for Plaintiff violating Rule 11. Doc. No. 11- 18 1 at 6, 22. District courts have a broad array of sanction options at their disposal, including 19 Rule 11 of the Federal Rules of Civil Procedure. See Christian v. Mattel, Inc., 286 F.3d 20 1118, 1131 (9th Cir. 2002). By signing, filing, submitting, or later advocating a pleading 21 or motion, an attorney has certified that it was not presented for an improper purpose, such 22 as to harass, cause unnecessary delay or needlessly increase the cost of litigation. Fed. R. 23 Civ. P. 11(b)(1). Rule 11(c) “place[s] stringent notice and filing requirements on parties 24 seeking sanctions.” Holgate v. Baldwin, 425 F.3d 671, 677 (9th Cir. 2005). “A Rule 11 25 motion for sanctions must be served on opposing counsel twenty-one days before filing the 26 motion with the court, providing the opposing counsel a ‘safe harbor…to give the 27 offending party the opportunity…to withdraw the offending pleading and thereby escape 28 sanctions.” Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815, 826 (9th Cir. 2009) 1 (citations omitted). “Failure to provide the required notice precludes an award of Rule 11 2 sanctions.’” Id. 3 First, Defendant alleges that Plaintiff’s complaint cannot meet the Cobbler standard 4 and is not “warranted by existing law.” Doc. No. 11-1 at 22-23. Second Defendant contends 5 Plaintiff “cause[d] unnecessary delay [and] needlessly increase[d] the cost of litigation” by 6 filing its motion for early discovery that cannot survive Cobbler. Id. However, Defendant’s 7 motion for sanction for failure to comply with Rule 11 does not abide by the stringent 8 notice and filing requirements. Plaintiff was not provided the 21-day safe harbor period for 9 correcting or withdrawing the challenged complaint or motion. In addition, Defendant 10 failed to file a separate motion for sanctions “describing the specific conduct that allegedly 11 violates Rule 11(b).” Fed. R. Civ. P. 11(c)(2). Furthermore, the Court rejects Defendant’s 12 contention that Plaintiff’s bill of discovery action in Florida state court to obtain the 13 subscriber’s identity as a means of harassing, increasing litigation costs, and a delay in this 14 action. Plaintiff filed the equitable action as a means to obtain the subscriber’s true identity 15 and Defendant has not proved otherwise. Reasonable litigants may consider Plaintiff’s 16 action in Florida as pre-copyright complaint discovery. Regardless, had Plaintiff been 17 successful in Florida, the request for early discovery, to quash a subpoena and sanctions 18 would not be before this court. It was Defendant who challenged the Florida equitable 19 action, and in doing so, contended the proper venue for the case was in this district. As a 20 result, Plaintiff did not dismiss the Florida action to harass Defendant, it did so at the urging 21 of Defendant and now has sought the relief (early discovery) here from the magistrate 22 judge. Any alleged delay cause by the Florida action does not fall at the feet of Plaintiff. 23 Finally, as stated above, the Cobbler action does not apply to this at this stage in the 24 proceedings. Therefore, Defendant’s Rule 11 motion for sanctions is DENIED. 25 C. Rule 41(b) 26 Rule 41(b) provides, in relevant part: “if the plaintiff fails to prosecute or to 27 comply with these rules or a court order, a defendant may move to dismiss the action or 28 any claim against it.” Fed. R. Civ. P. 41(b). A dismissal under Rule 41(b) serves as an 1 adjudication on the merits unless the dismissal states otherwise. Id. “[D]ismissal is a harsh 2 penalty and, therefore, it should only be imposed in extreme circumstances.” Ferdik v. 3 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Dismissal for failure to prosecute is solely 4 within the court’s discretion. Olivia v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992). 5 Pursuant to Federal Rule of Civil Procedure 41(b), Defendant seeks involuntary 6 dismissal of Plaintiff’s complaint. Doc. No. 11-1 at 16. Defendant alleges Plaintiff failed 7 to comply with Federal Rules 8 and 11 by filing the instant action when Plaintiff knew he 8 “cannot overcome the Cobbler precedent.” Id. at 18. Additionally, Defendant contends 9 Plaintiff’s complaint should be dismissed for causing “harm, prejudice, annoyance, and 10 harassment.” Id. at 17. 11 However, the Court disagrees as a Rule 41(b) dismissal is unwarranted. First, as 12 discussed above, Plaintiff can overcome the minimum Rule 8 threshold. Second, 13 Defendant’s motion for sanctions is meritless and Defendant failed to provide Plaintiff with 14 the proper notice prior to filing the motion. Finally, where defendant seeks dismissal 15 pursuant to Rule 41(b), plaintiff bears the initial burden of proof to show some excuse for 16 the delay in prosecution of the complaint. Nealy v. Transportacion Maritima Mexicana, 17 S.A., 662 F.2d 1275, 1280-81 (9th Cir. 1980). If plaintiff’s excuse is “anything but 18 frivolous,” the burden shifts to the defendant to show prejudice resulting from the delay. 19 Id. at 1281. 20 Here, Plaintiff originally filed the bill of discovery in Florida state court to obtain 21 the subscribers name and address, in which Defendant moved to dismiss that action. 22 Plaintiff filed the instant action and requested a subpoena to obtain the subscriber’s true 23 identity as Defendant suggested during the Florida litigation and, once again, Defendant 24 alleges Plaintiff is causing “harm prejudice, annoyance, and harassment.” Nevertheless, 25 Defendant has yet to explain any prejudice or harm caused to Defendant by Plaintiff filing 26 the instant action. The Court is unable to comprehend Defendant’s argument as Defendant 27 tactically, if not outrightly, consented to the issuance of the subpoena with only a 28 reservation as to privacy concerns. Defendant’s privacy concerns were not disputed by 1 || Plaintiff and were adopted by the court and incorporated into the court’s protective order 2 || were. Defendant has failed to show any prejudice resulting from any alleged delay by filing 3 ||the instant action or the third-party subpoena. Plaintiff is only seeking to obtain the 4 ||subscriber’s true name and address in order to proceed with the instant action, which is the 5 ||complete opposite of a delay. Lastly, there is no indication that Plaintiff has violated any 6 ||rules or Court order. 7 The Court is not convinced a harsh, involuntary dismissal of Plaintiffs complaint is 8 || warranted, and therefore, DENIES Defendant’s Rule 41(b) motion. 9 CONCLUSION 10 For the reasons set forth above, IT IS HEREBY ORDERED: 1] 1. Defendant’s Motion to Quash is DENIED. 12 2. Defendant’s Motion for Sanctions is DENIED. 13 3. Defendant’s Motion to Dismiss is DENIED. 14 IT IS SO ORDERED. 15 16 17 ||} DATED: May 13, 2020 | | | | | 18 19 H n. John A. Houston Jnited States District Judge 20 21 22 23 24 25 26 27 28