Strike 3 Holdings, LLC v. Doe

• Court: District Court, S.D. California
• Decided: February 24, 2025
• Docket: 3:24-cv-02483
• Status: Unknown

Opinion

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-2483-JES-DEB

12 Plaintiff, ORDERGRANTING PLAINTIFF’S 13 v. EX PARTE MOTION FOR LEAVE TO SERVE A THIRD-PARTY 14 JOHN DOE, subscriber assigned IP SUBPOENA PRIOR TO A RULE 26(f) address 172.14.53.224, 15 CONFERENCE Defendant. 16 [DKT. NO. 4] 17 18 Before the Court is Plaintiff’s Ex Parte Motion for Leave to Serve a Third-Party 19 Subpoena Prior to a Rule 26(f) Conference. Dkt. No. 4. Plaintiff has sued only a fictitious 20 “Doe” Defendant; thus, no party has filed an opposition to Plaintiff’s Motion. For the 21 reasons set forth below, the Court GRANTS Plaintiff’s Motion. 22 I. BACKGROUND 23 On December 27, 2024, Plaintiff filed a complaint against Defendant “John Doe” 24 whom Plaintiff alleges is an AT&T subscriber assigned Internet Protocol (“IP”) address 25 172.14.53.224. Dkt. No. 1 at 2.1 Plaintiff alleges it “is the owner of award-winning, 26 critically acclaimed adult motion pictures.” Id. at 1. Plaintiff asserts Defendant is 27 1 When referencing page numbers for documents filed with the Court, the Court’s citation 28 1 committing “rampant and wholesale copyright infringement” by downloading and 2 distributing copies of Plaintiff’s copyrighted motion pictures without authorization using 3 the BitTorrent file distribution network. Id. at 2, 4–7. 4 On January 16, 2025, Plaintiff filed the instant Motion. Dkt. No. 4. Plaintiff seeks 5 an order from the Court allowing it to serve a subpoena pursuant to Federal Rule of Civil 6 Procedure 45 on Internet Service Provider (“ISP”) AT&T Inc. seeking Defendant’s “true 7 name and address” so Plaintiff can serve a summons upon Defendant and litigate this 8 case. Dkt. No. 4-1 at 7–8. 9 II. LEGAL STANDARDS 10 Courts may grant a request for early or expedited discovery upon a showing of 11 good cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. 12 Cal. 2002) (applying “the conventional standard of good cause in evaluating Plaintiff’s 13 request for expedited discovery”). To determine whether “good cause” exists to permit 14 expedited discovery to identify Doe defendants, courts consider whether a plaintiff (1) 15 “identif[ies] the missing party with sufficient specificity such that the Court can 16 determine that the defendant is a real person or entity who could be sued in federal 17 court”; (2) “identif[ies] all previous steps taken to locate the elusive defendant” to ensure 18 plaintiff has made a good faith effort to identify the defendant; (3) “establish[es] to the 19 Court’s satisfaction that plaintiff’s suit against defendant could withstand a motion to 20 dismiss”; and (4) proves “there is a reasonable likelihood that the discovery process will 21 lead to identifying informant about defendant that would make service of process 22 possible.” Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999) 23 (citations omitted). 24 III. DISCUSSION 25 Plaintiff has shown in declarations attached to its Motion that Defendant is real and 26 can be sued and has—through the identification of the unique IP address, the date and 27 time of the alleged connection, and the name of the ISP—identified Defendant with the 28 requisite specificity to justify an early subpoena. See Dkt. No. 4-2 at 19–22, 29, 32; see 1 also Malibu Media, LLC v. Doe, No. 16-cv-444-GPC-BGS, 2016 WL 1618227, at *3 2 (S.D. Cal. Apr. 22, 2016) (“Based on . . . (1) the specific subscriber IP address at issue, 3 (2) the dates and times of connection, and (3) the name of internet service provider for 4 the IP address located, the Court finds the subscriber/doe defendant has been identified 5 with sufficient specificity.”). 6 Plaintiff also established it cannot identify the Defendant without the requested 7 information from the ISP. See Dkt. No. 4-1 at 14; see also Malibu Media, LLC, 2016 WL 8 1618227, at *3 (relying on a plaintiff’s efforts to locate an IP address and declaration 9 stating “the only entity able to correlate an IP address to a specific individual at a given 10 date and time is the Internet Service Provider” to establish “a good faith effort to identify 11 the subscriber/doe defendant”). 12 Moreover, Plaintiff’s complaint alleges Plaintiff owns the copyrights at issue and 13 specifically lists the registration numbers of the allegedly infringed works. See 14 Dkt. No. 1-2. Although the Court is not conclusively deciding the matter, it appears the 15 complaint could withstand a motion to dismiss. See Malibu Media, LLC, 2016 WL 16 1618227, at *4 (“Plaintiff’s complaint lists the copyrighted movie titles which it owns 17 and has registered, with a listing of the copyright registration numbers of the allegedly 18 infringed works at issue. . . . The plaintiff has also demonstrated . . . that an ISP maintains 19 the subscriber records that contain the name and address information they seek. 20 Accordingly, Plaintiff has made a prima facie showing of copyright ownership and a 21 violation of the copyright that could survive a motion to dismiss.”) (citations omitted). 22 Finally, Plaintiff has shown the requested discovery will lead to identifying 23 information, as it has identified a unique IP address that an ISP can, at least potentially, 24 tie to a specific individual. Dkt. No. 4-1 at 17; Dkt. No. 4-2 at 29, 32. Accordingly, 25 Plaintiff has established good cause and may serve a subpoena upon the ISP AT&T Inc. 26 IV. CONCLUSION 27 For the reasons set forth above, and for good cause shown, the Court GRANTS 28 Plaintiff’s Motion for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) 1 Conference. Dkt. No. 4. However, the Court is cognizant of the potential embarrassment 2 of being identified in this type of case and “shares the growing concern about 3 unscrupulous tactics used by certain plaintiffs, especially in the adult film industry, to 4 shake down the owners of IP addresses.” Malibu Media, LLC v. Does 1-5, No. 12-Civ- 5 2950-JPO, 2012 WL 2001968, at *1 (S.D.N.Y. June 1, 2012). Anticipating and sharing 6 these concerns, Plaintiff invites the Court to issue a protective order establishing 7 procedural safeguards if the Court finds such procedures appropriate, which the Court 8 does below. Dkt. No. 4-1 at 18. 9 Accordingly, the Court ORDERS as follows: 10 1. Plaintiff must attach a copy of this Order to any subpoena. 11 2. Plaintiff may serve the ISP with a Rule 45 subpoena commanding the ISP to 12 provide Plaintiff with only the true name and address of the Defendant to whom the ISP 13 assigned an IP address as set forth in Exhibit A to the complaint. The ISP must not 14 release the Defendant’s telephone number or email address. 15 3. Within fourteen (14) calendar days after service of the subpoena, the ISP must 16 notify the subscriber that his or her identity has been subpoenaed by Plaintiff. The ISP 17 must also provide a copy of this Order along with the required notice to the subscriber 18 whose identity is sought pursuant to this Order. 19 4. The subscriber whose identity has been subpoenaed must have thirty (30) 20 calendar days from the date of such notice to challenge the disclosure of his or her name 21 and contact information by filing an appropriate pleading with this Court contesting the 22 subpoena. A subscriber who moves to quash or modify the subpoena may proceed 23 anonymously as “John Doe,” and must remain anonymous until the Court orders that the 24 identifying information may be released. 25 5. If the ISP wishes to move to quash the subpoena, it must do so before the 26 subpoena’s return date, which must be at least forty-five (45) days from service. If a 27 motion to quash or other challenge is brought, the ISP must preserve the information 28 sought by Plaintiff in the subpoena pending resolution of such motion or challenge. 1 6. Plaintiff may only use the information disclosed in response to a Rule 45 2 ||subpoena served on the [SP for the purpose of protecting and enforcing Plaintiff's rights 3 ||as set forth in its complaint. If Defendant wishes to proceed anonymously, Plaintiff may 4 release any identifying information without a court order allowing the release of the 5 information. 6 IT IS SO ORDERED. 7 || Dated: February 24, 2025 — Daud aio 9 Honorable Daniel E. Butcher United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28