Malibu Media, LLC v. Doe , 64 F. Supp. 3d 47 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MALIBU MEDIA, LLC,
Plaintiff
v. Civil No. 14-1324 (CKK)
JOHN DOE subscriber assigned IP address,
68.33.194.45,
Defendant.
MEMORANDUM OPINION
(August 15, 2014)
Presently before the Court is Plaintiff’s [3] Motion for Leave to Serve a Third Party
Subpoena Prior to a Rule 26(f) Conference. Plaintiff, Malibu Media, has filed an action against
Defendant, John Doe, under the Copyright Act of 1976, alleging that Defendant used BitTorrent
file sharing to copy and distribute Plaintiff’s copyrighted works. Plaintiff seeks leave of the
Court to serve a Rule 45 subpoena on John Doe Defendant’s Internet Service Provider, identified
in Exhibits A and B of the Complaint as Comcast Cable, so that Plaintiff may learn Defendant’s
true identity. Upon consideration of the pleadings, 1 the relevant legal authorities, and the record
for purposes of this motion, the Court GRANTS Plaintiff’s Motion for Expedited Discovery.
I. BACKGROUND
A. Factual Background
Plaintiff, Malibu Media LLC, operates a subscription based website comprised of its
copyrighted content. Pl.’s Mot., Ex. 1 (Colette Field Decl.) ¶¶ 8-13. Using Defendant John
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Compl., ECF No. [4]; Plaintiff’s Motion for Leave to Serve a Third Party Subpoena
Prior to a Rule 26(f) Conference (“Pl.’s Mot.”), ECF No. [3].
Doe’s Internet Protocol (“IP”) address (a series of numbers assigned to each Internet service
subscriber) and IP geolocation technology, Plaintiff’s investigator, IPP International UG (“IPP”),
identified Defendant John Doe’s IP address as using the BitTorrent file distribution network to
access and distribute copyrighted movies owned by Plaintiff. Compl. ¶¶ 2, 5, 18-21. IPP’s
software traced Defendant’s IP address to a physical address located within the District of
Columbia. Id. ¶ 5. Plaintiff now seeks relief against Defendant, but only knows Defendant by
his or her IP address. Id. ¶ 9.
B. Procedural Background
On August 4, 2014, Plaintiff filed suit in this Court, alleging that Defendant John Doe
committed tortious copyright infringement in violation of the United States Copyright Act of
1976, as amended, 17 U.S.C. §§ 101 et seq. The same day, Plaintiff filed a Motion to Expedite
Discovery so that it could identify and properly serve Defendant John Doe. Pl.’s Mot., ECF No.
[3]. Plaintiff alleges that the only way it may identify Defendant is to subpoena the Defendant’s
Internet Service Provider (ISP), Comcast Cable, pursuant to Federal Rule of Civil Procedure 45.
Id.
II. LEGAL STANDARD
A plaintiff who seeks to conduct expedited discovery prior to the Rule 26(f) Conference in
order to learn the identity of putative defendants is in essence seeking jurisdictional discovery.
See Exquisite Multimedia, Inc. v. Does 1-336, No. 11-1976, 2012 WL 177885, at *1 (D.D.C. Jan.
19, 2012). Federal Rule of Civil Procedure 26(d) explains that parties may generally seek
discovery only after a Rule 26(f) conference, “except . . . when authorized by . . . court order.”
Fed. R. Civ. P. 26(d)(1). This Circuit has held that Federal Rule of Civil Procedure 26 “vests the
trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of
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discovery.” Watts v. SEC, 482 F.3d 501, 507 (D.C. Cir. 2007) (quoting Crawford-El v. Britton,
523 U.S. 574, 598 (1998)). 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. See Warner
Bros. Records Inc. v. Does 1-6, 527 F. Supp. 2d 1, 2 (D.D.C. 2007) (“the Court finds that
plaintiffs have made a showing of good cause for the discovery they seek”). In order to obtain
jurisdictional discovery a “plaintiff 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.” Exquisite
Multimedia, Inc., 2012 WL 177885, at *1 (quoting Caribbean Broad. Sys. Ltd. v. Cable &
Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998)). See also Exponential Biotherapies, Inc. v.
Houthoff Buruma N.V., 638 F. Supp. 2d 1, 11 (D.D.C. 2009) (holding that while “as a general
matter, discovery should be freely permitted . . . [j]urisdictional discovery is justified only if the
plaintiff reasonably demonstrates that it can supplement its jurisdictional allegations through
discovery.”) (quoting Kopff v. Battaglia, 425 F. Supp. 2d 76, 89 (D.D.C. 2006)). “Mere
conjecture or speculation” is not enough to justify jurisdictional discovery. FC Investment
Group LC v. IFX Markets Ltd., 529 F.3d 1087, 1094 (D.C. Cir. 2008).
Plaintiff’s cause of action, tortious copyright infringement, is brought under a federal
statute, the Copyright Act. The Copyright Act does not provide for the exercise of personal
jurisdiction over alleged infringers on any basis. See Exquisite Multimedia, Inc., 2012 WL
177885, at *2. Therefore, Plaintiff must predicate this Court’s jurisdiction over the infringers on
the reach of District of Columbia law. Id. District of Columbia law provides for the exercise of
personal jurisdiction over a person domiciled in the District of Columbia as to “any claim for
relief.” Id. (quoting D.C. Code § 13–422 (2001)). The so-called “long arm” provision of the
personal jurisdiction statute provides, in pertinent part, as follows:
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(a) A District of Columbia court may exercise personal jurisdiction over a person,
who acts directly or by an agent, as to a claim for relief arising from the
person’s—
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(3) causing tortious injury in the District of Columbia by an act or omission in the
District of Columbia;
D.C. Code § 13–423 (2001). Personal jurisdiction might properly be exercised over Defendant
John Doe if he or she is a resident of the District of Columbia or at least downloaded the
copyrighted work in the District. AF Holdings LLC v. Cox Commc’ns Inc., 752 F.3d 990, 996
(D.C. Cir. 2014) (citing D.C. Code § 23-423(3), (4)). Thus, unless the infringer is domiciled in
the District of Columbia, the question presented is where the infringement occurred and whether
it occurred in the District of Columbia. It is especially important in cases involving allegations
of copyright infringement using an IP address that the plaintiff demonstrate a good faith basis to
believe a putative defendant may be a District of Columbia resident or that the injury occurred in
the District of Columbia. See Nu Image, Inc. v. Doe, 799 F. Supp. 2d 34, 39-40 (D.D.C. 2011).
In AF Holdings LLC the Court of Appeals for the District of Columbia Circuit found that
geolocation services which “enable anyone to estimate the location of Internet users based on
their IP addresses” are “sufficiently accurate to provide at least some basis for determining
whether a particular subscriber might live in the District of Columbia.” AF Holdings LLC, 752
F.3d at 996; see also Nu Image, Inc., 799 F. Supp. 2d at 41 (holding that “the Plaintiff has a good
faith basis to believe a putative defendant may be a District of Columbia resident if a geolocation
service places his/her IP address within the District of Columbia, or within a city located within
30 miles of the District of Columbia.”).
III. DISCUSSION
Upon consideration of the relevant legal authorities and Plaintiff’s pleadings, the Court
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finds that good cause exists for Plaintiff’s requested expedited discovery. First, Defendant must
be identified before this suit can progress further. See Arista Records LLC v. Does 1–19, 551
F. Supp. 2d 1, 6 (D.D.C. 2008). Second, the Plaintiff has established a good faith basis for
believing the putative defendant may be a District of Columbia resident. In Plaintiff’s
Complaint, Plaintiff alleges that it used “proven IP address geolocation technology which has
consistently worked in similar cases to ensure that the Defendant’s acts of copyright
infringement occurred using an Internet Protocol address . . . traced to a physical address located
within this District.” See Compl. ¶ 5. Cf. AF Holdings LLC, 752 F.3d at 996 (finding that “AF
Holdings’s refusal to cabin its suit and corresponding discovery requests to individuals whom it
has some realistic chance of successfully suing in this district demonstrates that it has not ‘sought
the information because of its relevance to the issues’ that might actually be litigated here.”)
(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978)). Accordingly, under
the broad discretion granted this Court under the Federal Rule of Civil Procedure 26, this Court
grants Plaintiff leave to serve a Rule 45 subpoena on the ISP identified in Exhibits A and B of
the Complaint, Comcast Cable, for the purpose of identifying the putative Defendant’s true
identity prior to a Rule 26(f) Conference. See Compl., Ex. A (File Hashes for IP Address
68.33.194.45); id., Ex. B (Copyrights-In-Suit for IP Address 68.33.194.45).
Plaintiff shall be allowed to serve immediate discovery on the identified ISP in order to
obtain the identity of John Doe Defendant by serving a Rule 45 subpoena that seeks information
sufficient to identify John Doe Defendant, including the individual’s name, current and
permanent address, telephone number, e-mail address, and Media Access Control address. Any
information disclosed to Plaintiff in response to a Rule 45 subpoena may be used by Plaintiff
solely for the purpose of protecting Plaintiff’s rights as set forth in the Complaint. If and when
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the ISP is served with a subpoena, the ISP shall give written notice, which may include e-mail
notice, to the subscriber in question within ten (10) business days prior to releasing the
subscriber’s identifying information to Plaintiff. If the ISP and/or Defendant want to move to
quash the subpoena, the party must do so before the return date of the subpoena, which shall be
no earlier than thirty (30) days from the date of service. The ISP shall preserve any subpoenaed
information pending the resolution of any timely filed motion to quash. Plaintiff shall provide
the ISP with a copy of this Memorandum Opinion and the accompanying Order with its
subpoenas. On or before October 14, 2014, Plaintiff shall file a Status Report with the Court
briefly outlining its progress, including providing an expected completion date of the discovery
allowed by the accompanying Order.
IV. CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has made a showing of “good
cause” for the expedited discovery it seeks. Accordingly, the Court shall GRANT Plaintiff’s [3]
Motion for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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