Case 1:23-cv-02103-SDG Document 11 Filed 06/26/23 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
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`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`71.59.3.125,
`Defendant.
`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`73.137.105.62,
`Defendant.
`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`24.240.23.76,
`Defendant.
`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`73.237.242.170,
`Defendant.
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`Civil Action No.
`1:23-cv-02096-SDG
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`Civil Action No.
`1:23-cv-02098-SDG
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`Civil Action No.
`1:23-cv-02099-SDG
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`Civil Action No.
`1:23-cv-02100-SDG
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`71.59.3.125,
`Defendant.
`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`73.137.105.62,
`Defendant.
`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`24.240.23.76,
`Defendant.
`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`73.237.242.170,
`Defendant.
`
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`Civil Action No.
`1:23-cv-02096-SDG
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`Civil Action No.
`1:23-cv-02098-SDG
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`Civil Action No.
`1:23-cv-02099-SDG
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`Civil Action No.
`1:23-cv-02100-SDG
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`Case 1:23-cv-02103-SDG Document 11 Filed 06/26/23 Page 2 of 10
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`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`73.137.234.124,
`Defendant.
`STRIKE 3 HOLDINGS, LLC,
`Plaintiff,
`
`v.
`JOHN DOE subscriber assigned IP address
`73.184.211.143,
`Defendant.
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`Civil Action No.
`1:23-cv-02102-SDG
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`Civil Action No.
`1:23-cv-02103-SDG
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`OPINION & ORDER
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`This matter is before the Court on Plaintiff Strike 3 Holdings, LLC’s
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`(Strike 3) motions to serve subpoenas on multiple Defendants pursuant to Fed. R.
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`Civ. P. 45 in the above-captioned cases [1:23-cv-02096-SDG, ECF 6; 1:23-cv-02098-
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`SDG, ECF 6; 1:23-cv-02099-SDG, ECF 6; 1:23-cv-02100-SDG, ECF 6; 1:23-cv-02100-
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`SDG, ECF 6; 1:23-cv-02103-SDG, ECF 6]. For the reasons that follow, the motions
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`to serve subpoenas are GRANTED. The application for admission pro hac vice is
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`DENIED as moot. See ECF 9.
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`Case 1:23-cv-02103-SDG Document 11 Filed 06/26/23 Page 3 of 10
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`I.
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`Background
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`The facts underpinning these cases are essentially the same.1 Strike 3 owns
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`a library of adult motion pictures, dozens of which the John Doe Defendants
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`allegedly copied and reproduced, infringing on Strike 3’s copyrights.2 According
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`to Strike 3, these motion pictures are “award-winning,” “critically acclaimed,”
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`“high-end,” “artistic,” and “performer-inspiring” owing to their “Hollywood[-
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`]style budget and quality.”3 Apparently, quality begets viewership: Strike 3’s
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`subscription-based websites boast a subscriber base that is purportedly one of the
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`highest of any adult content website.4 It also invites rampant infringement,
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`evidenced by Strike 3’s content allegedly “appearing among the most infringed
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`popular entertainment content on torrent websites.”5 Because of Defendants and
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`1 For this reason, the court refers only to documents from the case filed first in
`time, 1:23-cv-02096-SDG.
`2 ECF 1, ¶¶ 1–4.
`Id. ¶ 3.
`3
`Id. ¶ 13.
`4
`Id. ¶ 16.
`5
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`Case 1:23-cv-02103-SDG Document 11 Filed 06/26/23 Page 4 of 10
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`other alleged pirates, “Strike 3’s motion pictures are among the most pirated
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`content in the world.”6
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`Strike 3 maintains that Defendants “not only engage in illegal downloading,
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`but are also large[-]scale unauthorized distributors of Strike 3’s content.”7 They are
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`as yet unidentified because they cloaked their identities to evade detection. But,
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`Strike 3 reasons, Defendants’ internet providers might be able to identify
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`Defendants through their IP addresses, which Strike 3 uncovered using third-
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`party geolocation technology and their own proprietary infringement detection
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`system.8 For this reason, Strike 3 filed its many motions to serve Fed. R. Civ. P. 45
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`subpoenas on Defendants.
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`II. Discussion
`A.
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`Fictitious Party Pleading
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`Although fictitious party practice is not ordinarily allowed in federal court,
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`Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010), the Eleventh Circuit Court
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`of Appeals recognizes an exception when “the plaintiff’s description of the
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`defendant is so specific as to be ‘at the very worst, surplusage.’” Id. (citation
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`Id.
`6
`7 ECF 6-1, at 5 (citation omitted).
`8 ECF 1, ¶¶ 5, 9, 27–28.
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`Case 1:23-cv-02103-SDG Document 11 Filed 06/26/23 Page 5 of 10
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`omitted). This exception has been applied by courts in this Circuit, as in other
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`Circuits, to allow fictitious party pleading where discovery is necessary to
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`determine a defendant’s true identity. See, e.g., Roe v. Doe, 2019 WL 13215281, at *1
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`(N.D. Ga. Oct. 10, 2019) (finding fictitious party pleading was acceptable and
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`authorizing limited discovery where defendants allegedly used false names and
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`email accounts and could only be identified by those names and accounts).
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`Strike 3 has sufficiently identified Defendants by their IP addresses—unique
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`electronic signatures assigned to devices allegedly used by the infringers to pirate
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`Strike 3’s property. See, e.g., Breaking Glass Pictures, LLC v. Doe, 2013 WL 8336085,
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`at *5 (N.D. Ga. Apr. 12, 2013) (granting preliminary discovery where the plaintiff
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`only knew the defendant’s IP address and sought leave to serve a subpoena based
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`on this information to uncover the defendant’s identity). Without limited
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`discovery, Strike 3 would be precluded from pursuing its claims and obtaining
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`judicial relief related to the alleged infringement. Thus, in this case, the Court finds
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`that fictitious party pleading is warranted and excepted from the general
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`prohibition.
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`B.
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`Early Discovery Under Rule 26(d)(1)
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`Under Rule 26(d)(1) of the Federal Rules of Civil Procedure, “[a] party may
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`not seek discovery from any source before the parties have conferred as required
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`Case 1:23-cv-02103-SDG Document 11 Filed 06/26/23 Page 6 of 10
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`by Rule 26(f),” unless authorized by court order. So, Strike 3’s request to issue Rule
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`45 subpoenas must be evaluated through the lens of Rule 26(d)(1).
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`The rule is silent as to the standard that applies when a court weighs
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`whether to authorize discovery before the Rule 26(f) conference, but courts in this
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`district have applied a good cause standard to answer the Rule 26(d)(1) question.
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`See Breaking Glass Pictures, 2013 WL 8336085, at *5; Davis v. Collins, 2018 WL
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`6163154, at *2 (N.D. Ga. Aug. 24, 2018); Thompson Ins. Enters., Inc. v. LIPCA, Inc.,
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`2007 WL 9706825, at *6 (N.D. Ga. June 26, 2007). Whether good cause exists to grant
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`preliminary discovery in cases involving fictitious party defendants depends on:
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`“(1) whether the plaintiff has established a prima facie case; (2) whether the plaintiff
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`has explained the steps already taken to identify the defendant; (3) whether the
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`plaintiff has demonstrated that the requested discovery will likely uncover the
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`defendant’s identity; and (4) whether the plaintiff’s discovery request is narrowly
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`tailored.” Roe, 2019 WL 13215281, at *2 (cleaned up).
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`1.
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`Strike 3 Establishes a Prima Facie Case of Copyright
`Infringement.
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`To make out a prima facie case of copyright infringement, Strike 3 must
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`establish (1) that it is the owner of a valid copyright and (2) that Defendants copied
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`Case 1:23-cv-02103-SDG Document 11 Filed 06/26/23 Page 7 of 10
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`protected elements of that work. Oravec v. Sunny Isles Luxury Ventures, L.C., 527
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`F.3d 1218, 1223 (11th Cir. 2008). It does so.
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`Taking these elements in reverse, Strike 3 establishes the second element of
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`its copyright infringement claim because it (1) alleges that protected elements of
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`its copyrighted works were in fact infringed by Defendants, and (2) offers evidence
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`of its own digital monitoring and third-party investigation, which, together, traced
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`the infringement of its copyrighted content to Defendants’ IP addresses.
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`As to the first element, ownership of a copyright may be demonstrated
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`through registration with the Copyright Office pursuant to 17 U.S.C. § 411. Donald
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`Frederick Evans & Assocs., Inc. v. Continental Homes, Inc., 785 F.2d 897, 903
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`(11th Cir. 1986) (citing 17 U.S.C. § 410(c) and Nimmer on Copyright § 13.01[A], at 13-
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`4) (The grant of copyright protection by the Copyright Office, evidenced by
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`certificates of registration “constitute[s] prima facie evidence of the validity of the
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`copyright and of the facts stated in the certificate,” including the requirement of
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`originality.). Strike 3 has demonstrated just that by attaching to each of its motions
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`for discovery declarations that establish it is the owner of registered copyrights
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`associated with each digital file Defendants allegedly copied and distributed.
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`While the burden shifts to Defendants at the motion-to-dismiss stage to disprove
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`the presumption of valid copyright ownership to which Strike 3 is entitled on these
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`Case 1:23-cv-02103-SDG Document 11 Filed 06/26/23 Page 8 of 10
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`facts, id., Strike 3’s allegations are sufficient to make out its prima facie case of
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`copyright infringement for Rule 26(d)(1) purposes.
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`2.
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`Strike 3 Describes the Steps Taken to Identify Defendants.
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`Strike 3 has alleged facts demonstrating it (1) identified Defendants’
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`infringement and investigated it thoroughly using its own proprietary systems
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`and third-party resources, and (2) diligently attempted to match Defendants’ IP
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`addresses with Defendants before filing these motions. Strike 3 has not been able
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`to identify any other way to uncover Defendants’ identities, but Defendants’
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`internet providers are well-positioned to do what Strike 3 could not. Accordingly,
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`the Court is satisfied that Strike 3 adequately describes the steps it has taken to
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`identify Defendants—as well as how discovery will aid it to that end.
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`3.
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`Strike 3 Demonstrates that the Requested Discovery Will
`Likely Uncover Defendants’ Identities and Is Narrowly
`Tailored.
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`Taking the third and fourth elements together, Strike 3 has shown that the
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`requested discovery will likely uncover Defendants’ true identities and is
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`narrowly tailored to meet this goal. As another district court commented when
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`faced with a nearly identical inquiry, Strike 3 requests “only the name and
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`permanent address of the IP address subscribers . . . requesting no more than
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`would be required to identify the relevant individual.” Strike 3 Holdings, LLC v.
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`Case 1:23-cv-02103-SDG Document 11 Filed 06/26/23 Page 9 of 10
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`Doe, 2020 WL 3567282, at *8 (D.N.J. June 30, 2020) (collecting cases). This narrow
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`line of inquiry is reasonably calculated to obtain only Defendants’ names and
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`addresses, which will allow Strike 3 to effect service of process on them.
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`In light of the Court’s determinations about these elements and the others
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`detailed above, the Court finds that there is good cause under Rule 26(d)(1) to
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`grant Strike 3’s requests for early discovery in each of the above-captioned cases.
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`III. Conclusion
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`Strike 3’s motions to serve subpoenas on Defendants pursuant to Fed. R.
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`Civ. P. 45 [1:23-cv-02096-SDG, ECF 6; 1:23-cv-02098-SDG, ECF 6; 1:23-cv-02099-
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`SDG, ECF 6; 1:23-cv-02100-SDG, ECF 6; 1:23-cv-02100-SDG, ECF 6; 1:23-cv-02103-
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`SDG, ECF 6] are GRANTED. Attorney Jeremy Thompson’s application for
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`admission pro hac vice [1:23-cv-02096-SDG, ECF 8] is DENIED as moot. See ECF 9.
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`The Court acknowledges Strike 3’s submission that it does not oppose a
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`protective order; none is required at present. Any party seeking to maintain the
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`confidentiality of any discovery may move to do so with the proper showing at
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`any appropriate time during the pendency of these matters.
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`Finally, these actions present almost identical complaints and discovery
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`motions, and they appear substantially similar. Accordingly, within 5 days of
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`entry of this Order, Strike 3 is ORDERED TO SHOW CAUSE why these actions
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`Case 1:23-cv-02103-SDG Document 11 Filed 06/26/23 Page 10 of 10
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`should not be consolidated pursuant to Fed. R. Civ. P. 42(a). See Young v. City of
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`Augusta Through DeVaney, 59 F.3d 1160, 1168 (11th Cir. 1995) (citing Hendrix v.
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`Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985)). Alternatively, Strike
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`3 may indicate its consent to consolidation. The Clerk is DIRECTED to submit this
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`Order to undersigned in 5 days.
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`SO ORDERED this 26th day of June, 2023.
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`Steven D. Grimberg
`United States District Court Judge
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