Strike 3 Holdings, LLC v. Doe

STRIKE 3 HOLDINGS, LLC, Plaintiff, v. JOHN DOE SUBSCRIBER ASSIGNED IPADDRESS 76.117.94.168, Defendants.

Civil Action No. 18-16593 (MAS)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

September 30, 2019

MEMORANDUM OPINION

BONGIOVANNI, Magistrate Judge

Pending before this Court is Defendant John Doe Subscriber Assigned IP Address 76.117.94.168's ("Defendant") motion to quash Plaintiff Strike 3 Holdings, LLC's ("Plaintiff") subpoena to Comcast, Defendant's Internet Service Provider ("ISP') or in the alternative, seeking an order permitting Defendant to proceed anonymously and for a protective order. (Docket Entry No. 6). Plaintiff opposes Defendant's motion to quash but does not oppose Defendant proceeding anonymously. (Docket Entry No. 8). The Court has fully reviewed all arguments raised in favor of and in opposition to Defendant's motion. The Court considers Defendant's motion to quash without oral argument pursuant to L. Civ. R. 78.1(b). For the reasons set forth below, Defendant's motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

This case is one of many in this District alleging copyright infringement for the unauthorized downloading and distributing of Plaintiff's adult motion pictures across the BitTorrent network. (Docket Entry No. 1). Plaintiff, who knows the Defendant only by Internet Protocol ("IP") address, moved before the Court pursuant to FED. R. CIV. P. ("Rule") 45 to issue a third-party subpoena on Comcast for Defendant's identifying information. (Docket Entry No. 3). The Court found, by Order on January 9, 2019, that good cause existed to issue and serve the subpoena on Comcast, despite the fact that a Rule 26(f) conference has not yet occurred. (Docket Entry No. 5). Plaintiff issued the subpoena and Defendant filed the instant motion to quash.

A. Defendant's Argument

Defendant argues Plaintiff's subpoena should be quashed because (1) Plaintiff has failed to establish jurisdiction over Defendant or proper venue in this District, (2) the subpoena would subject Defendant to undue burden, annoyance, harassment and expense, and (3) the subpoena will not succeed in identifying the alleged offender. (See Docket Entry No. 6-3).

First, Defendant argues that that Plaintiff has failed to supply any evidence demonstrating the accuracy of its geolocation tracking software and therefore fails to establish valid jurisdiction over the Defendant. Defendant asserts that Courts dealing with similar cases have denied early discovery requests based on concerns with the accuracy of the plaintiff's geolocation methods, specifically citing Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160 (D.D.C. 2018) for the proposition that Plaintiff's motion cannot survive a motion to dismiss without seeking more discovery than the limited request it has already made. (Id. at 17-18).

Second, Defendant argues that his or her privacy rights are implicated with the subpoena and he or she therefore has standing to challenge it even though it is addressed to a third party. Specifically, Defendant argues that subscribers in Defendant's position in other cases are often embarrassed about the prospect of being named in a suit involving pornographic film, thus leveraging the copyrighter's settlement position. Defendant describes that in similar cases, the Plaintiff will send a settlement demand to the IP subscriber whom the ISP identifies, putting Defendants in a position to retain legal assistance to fight the claim that he or she illegallydownloaded sexually explicit materials, or pay the settlement demand. Plaintiff cites out of District cases that discuss this coercive behavior.¹

Further, Defendant argues that Plaintiff's subpoena will not successfully identify the alleged offender, because Plaintiff will be unable to show that the actual infringer is the subscriber John Doe and "not some other person in this defendant's business or household, or a family guest or customer, or a neighbor, or a stranger driving by who may have hacked or leeched this defendant's internet access." (Id. at 26). Defendant cites cases that highlight that "[s]everal courts have found it troubling that the subscriber associated with a given IP address may not be the person responsible for conduct traceable to that IP address." (Id. at 28, citing Malibu Media, LLC v. Doe, No. 8:13-cv-00365 (ECF No. 60 at 7), 2014 WL 7188822, at *4 (D. MD. Dec. 16, 2014)). Therefore, Defendant argues, this Court should vacate Its prior Order and Quash the subpoena issued to Comcast because it is not likely to yield the correct information as to the person likely to have committed the infringement.

Lastly, Defendant argues that should the Court not grant its motion to quash, Defendant's identity should remain anonymous, as Defendant risks "embarrassment and ridicule" should his or her identity and personal information be revealed throughout the course of this litigation. (Docket Entry No. 6-3 at 34). Specifically, Defendant asks the Court to issue an order containing the following:

1. John Doe subscriber assigned IP address 76.117.94.168 shall proceed anonymously, as a "John Doe," in this matter;

2. Plaintiff will maintain confidential and not disclose publicly or in this Court (except ifunder seal) the identity and contact information of this John Doe or of his/her immediate family; and

3. Upon request or Order from the Court, after being served with process, John Doe shall submit his or her name under seal.

(Id. at 39).

B. Plaintiff's Argument

Plaintiff opposes Defendant's motion to quash on several grounds. (Docket Entry No. 8). Plaintiff argues that it has demonstrated a good faith basis for asserting personal jurisdiction and venue based on its reliance on a geolocation tracking software called "MaxMind" that is relied upon by law enforcement agencies and recognized as accurate by several courts. (Id. at 10-11). Plaintiff further argues that Defendant has submitted no evidence, despite clearly having it in his or her possession, to support the assertion that venue in this Court is inappropriate. (Id. at 10). Plaintiff notes that while it is its burden to demonstrate facts that support personal jurisdiction,

[c]ourts are to assist the plaintiff by allowing jurisdictional discovery unless the plaintiff's claim is 'clearly frivolous.' If a plaintiff presents factual allegations that suggest 'with reasonable particularity' the possible existence of the requisite 'contacts between [the party] and the forum state,' the plaintiff's right to conduct jurisdictional discovery should be sustained.

Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003) (internal citations omitted).

Plaintiff argues that MaxMind technology provides Plaintiff with an approximate location of the Defendant's IP address through its geolocation database, and that many courts around the country,² have found that tracing an IP address in this manner establishes a prima facie case of personal jurisdiction and venue. Plaintiff also notes that Defendant does not deny that he or shelives in New Jersey or provide any evidence to the contrary. Defendant contends that Plaintiff's reliance on the holding of Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160 (D.D.C. 2018) has little merit because it is out of district, rife with erroneous findings, is currently on appeal to the Court of Appeals for the District of Columbia, and, most notably, no District Court has yet to adopt its findings. (Id. at 16). Plaintiff further argues that while "[i]t is plausible that files downloaded using a particular IP address were downloaded by the subscriber of that address [and the] possibility that a family member, guest, or neighbor may have downloaded the [motion pictures] does not render Plaintiff's claims implausible." Malibu Media, LLC v. Doe, No. 16-1739, 2017 WL 1050573, at *2 (D.N.J. Mar. 20, 2017) (denying motion to dismiss).

Next, Plaintiff contends that its right to continue with this litigation outweighs Defendant's minimal privacy interests. Plaintiff states that "[c]ourts have consistently ruled that 'Internet subscribers do not have a reasonable expectation of privacy in their subscriber information.'" Id. (citing Sony Music Entm't v. Does 1-40, 326 F. Supp. 2d 556, at 566-67 (S.D.N.Y. 2004); see also Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. Kg. v. Does 1-4, 577, 736 F. Supp. 2d 212, 216 (D.D.C. 2010)). As Defendant voluntarily disclosed his or her information in order to set up the internet account, Plaintiff claims that Defendant cannot now claim it as so confidential to establish a basis for quashing the subpoena to Comcast.

Further, Plaintiff argues that this Court has repeatedly held that similar Defendants suffer no undue burden as a result of analogous subpoenas. Plaintiff expresses that there is no evidence that it has ever engaged in the type of abusive tactics suggested by Defendant, and that several Courts have noted this Plaintiff's good faith conduct in similar matters. (Docket Entry No. 8 at 22). Additionally, Plaintiff points out that Defendant's "parade of horribles" is not possible here because Defendant is represented, and a review of the docket shows the parties are activelyengaging in the litigation despite Defendant's concerns that this action was only brought to extort settlement.

Plaintiff also asserts that Defendant's denial of infringement is not a basis to quash the subpoena because the information sought is discoverable and Defendant's reliance on Cobbler Nevada, LLC v. Gonzales, 901 F.3d at 1147 ("Cobbler") is misplaced. Plaintiff stresses that "no court interpreting Cobbler or reviewing arguments similar to Defendant's have held that Cobbler closes the door on the early discovery sought here." (Id. at 28).

Lastly, while Plaintiff clearly opposes Defendant's motion to quash, Plaintiff does not object to allowing Defendant to proceed anonymously and states that it will work with Defendant to file an appropriate sealing motion providing same. (Id. at 28).

II....