Plaintiff contends that Defendants unlawfully downloaded and uploaded Plaintiff’scopyrighted works using BitTorrent. In each case, Defendants allegedly shared the samedigital copy of Plaintiff’s works with the other named-defendants and participated in the same“swarm” at some point during a one to two-month period.Upon discovering that its works were available through BitTorrent, Plaintiff hired IPP,Limited (“IPP”) to identify the internet protocol (“IP”) addresses associated with the infringingactivity. IPP connected to BitTorrent and downloaded various pieces of files containingPlaintiff’s works. In order to use BitTorrent, users are required to reveal their IP addresses toeach other, and thus, by downloading these pieces, IPP identified IP addresses associatedwith the infringing activity, and the date and time of the alleged infringement. (Pl. Compl., Ex.A.) Internet service providers (“ISP”), such as Time Warner Cable, assign IP addresses tosubscribers when they use the ISPs’ internet services. Plaintiff now seeks leave to subpoenathe ISPs to provide the subscriber information associated with the named Defendants’ IPaddresses.
III.JUDICIAL STANDARD1.Early Discovery
Federal Rule of Civil Procedure 26(d)(1) provides that “[a] party may not seek discoveryfrom any source before the parties have conferred as required by Rule 26(f), except in aproceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized bythese rules, by stipulation, or by court order.” A court order for early discovery is issued onlyupon a showing of “good cause.”
Hard Drive Prods., Inc. v. Does 1-90
, No. C 11-03825 HRL,2012 WL 1094653, at *2 (N.D. Cal. Mar. 30, 2012) (citations omitted). To determine whethergoods cause exists, courts consider whether: “(1) the plaintiff can identify the missing partywith sufficient specificity such that the Court can determine that defendant is a real entity thatcan be sued in federal court;” (2) the plaintiff has identified all prior steps taken to locate thedefendant; (3) the lawsuit against defendant could withstand a motion to dismiss; and “(4) theplaintiff has demonstrated that there is a reasonable likelihood of being able to identify thedefendant through discovery such that service of process would be possible.”
Generally, “the use of ‘John Doe’ to identify a defendant is not favored.”
, 629 F.2d 637, 642 (9th Cir. 1980). When a plaintiff does not know the defendant’sidentity at the time the complaint is filed, the Ninth Circuit provides that courts may grant leavefor early discovery, “unless it is clear that discovery would not uncover the identities, or that thecomplaint would be dismissed on other grounds.”
(finding that a plaintiff “should be given anopportunity through discovery to identify the unknown defendants” subject to certainexceptions);
Ingenuity13 LLC v. John Doe
, 12-cv-1843-MMA, 2012 WL 4108885, at *1 (S.D.Cal. Sept. 17, 2012). If early discovery would “very likely” disclose the identities of the “JohnDoe defendants,” courts must grant the requested early discovery.
Permissive joinder of defendants is proper if (A) any right to relief is asserted againstthe defendants “jointly, severally, or in the alternative with respect to or arising out of the sametransaction, occurrence, or series of transactions or occurrences; and (B) any question of lawor fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). The properremedy for misjoinder is to sever misjoined parties and dismiss claims against them, providedthat “no substantial right will be prejudiced by the severance.”
Coughlin v. Rogers
, 130 F.3d1348, 1350 (9th Cir. 1997). The determination of joinder “lies within the discretion of the district
CIVIL MINUTES - GENERAL
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