Strike 3 Holdings, LLC v. Doe

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STRIKE 3 HOLDINGS, LLC,

Plaintiff,

v. Civil Action No. 18-1426 (RDM)

JOHN DOE subscriber assigned IP address 73.213.163.189,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff’s motion for leave to serve a third party subpoena prior to a

Rule 26(f) conference. See Dkt. 4.

I. BACKGROUND

Plaintiff Strike 3 Holdings LLC, is the owner of certain motion pictures involved in this

action. See Dkt. 1. In the complaint, Plaintiff alleges that Defendant—who is identified by an IP

address—is “committing rampant and wholesale copyright infringement by downloading Strike

3’s motion pictures” and “distributing them to others.” Id. at 1–2 (Compl. ¶ 4). Plaintiff seeks

statutory damages and declaratory and injunctive relief prohibiting continued infringement. Id.

at 7–8 (Compl. ¶ 39).

Because Plaintiff is aware of Defendant’s IP address and Internet Service Provider but

not his or her identity, Plaintiff seeks leave to serve a third-party subpoena on Defendant’s

Internet Service Provider—Comcast Cable Communications, LLC—that would require Comcast

to identify Defendant. Dkt. 4-5 at 4–5. Because Defendant has not been named or served, no

response has been filed to Plaintiff’s motion. II. LEGAL STANDARD

A party ordinarily “may not seek discovery from any source” before a conference under

Rule 26(f) unless “authorized by . . . a 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). Good cause to take discovery prior to the Rule 26(f) conference exists where the

discovery is necessary “before th[e] suit can progress further.” Arista Records LLC v. Does 1–

19, 551 F. Supp. 2d 1, 6 (D.D.C. 2008) (internal quotation marks omitted). However, a plaintiff

seeking discovery of the identities of unknown defendants “must have at least a good faith belief

that such discovery will enable it to show that the court has personal jurisdiction over the

defendants.” AF Holdings, LLC v. Does 1–1058, 752 F.3d 990, 995 (D.C. Cir. 2014) (internal

quotation marks and alteration omitted).

III. ANALYSIS

Upon consideration of the relevant legal authorities and Plaintiff’s pleadings, the Court

finds that Plaintiff has demonstrated that good cause exists to take discovery prior to the Rule

26(f) conference. First, Plaintiff must serve Defendant before this lawsuit can progress, but, in

order to effect service, Plaintiff needs to know Defendant’s identity. See Arista Records LLC,

551 F. Supp. 2d at 6; see also Malibu Media, LLC v. Doe, No. 15-986, 2015 WL 5173890 at *1

(“[I]t is questionable whether the Court could dismiss the case without allowing Plaintiff the

opportunity for discovery of Defendant’s identity.”). Second, Plaintiff has established a good

faith basis for believing that Defendant is a District of Columbia resident. To establish personal

jurisdiction over a defendant under the District of Columbia’s long-arm statute, Plaintiff must

demonstrate that the defendant either is a “resident[] of the District of Columbia” or “at least

2 downloaded the copyrighted work in the District.” AF Holdings, 752 F.3d at 996. Plaintiff

alleges that “Defendant used an Internet Protocol address (‘IP address’) traced to a physical

address located within this District” using “geolocation technology.” Dkt. 1 at 2 (Compl. ¶¶ 8–

9); see AF Holdings, 752 F.3d at 996 (holding that “geolocation services” are “sufficiently

accurate” to establish “some basis for determining whether a particular subscriber might live in

the District of Columbia”). Accordingly, pursuant to its “broad discretion to . . . dictate the

sequence of discovery,” Watts v. SEC, 482 F.3d 501, 507 (D.C. Cir. 2007) (internal quotation

marks omitted), the Court will GRANT Plaintiff’s motion for leave to serve a Rule 45 subpoena

on Comcast Cable Communications, LLC, for the purposes of identifying Defendant’s identity

prior to a Rule 26(f) conference, Dkt. 4.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: July 24, 2018