Opinion
21-cv-05677-EMC (DMR)
11-08-2021
BUNGIE, INC., et al., Plaintiffs, v. ANDREW THORPE, et al., Defendants.
ORDER DENYING WITHOUT PREJUDICE EX PARTE APPLICATION FOR LEAVE TO TAKE LIMITED EARLY DISCOVERY
Re: Dkt. No. 11
DONNA M. RYU UNITED STATES MAGISTRATE JUDGE
Plaintiffs Bungie, Inc. (“Bungie”), Ubisoft Entertainment, and Ubisoft, Inc. (together, “Ubisoft”) own and publish two popular online multiplayer video games. They claim that Defendants Andrew Thorpe, Jonathan Agueda, Wesam Mohammed, Ahmad Mohammed, and a number of unnamed defendants (the “Doe Defendants”) operate an online business venture called Ring-1 that sells software that provides cheats and hacks to Plaintiffs' games. Plaintiffs allege violations of copyright, trademark, and related laws.
Plaintiffs make this ex parte application for leave to take limited early discovery pursuant to Federal Rule of Civil Procedure 26(d) and Civil Local Rule 7-10 to identify nine anonymous Doe Defendants. Application for Leave (“Appl.”) [Docket No. 11]. The Honorable Edward M. Chen referred this matter to the undersigned for resolution. This matter is suitable for determination without oral argument. Civil L.R. 7-1(b). The court denies Plaintiffs' application without prejudice.
I. BACKGROUND
Plaintiffs are the owners and publishers of the online multiplayer video games “Destiny 2” and “Tom Clancy's Rainbow Six: Siege” (“R6S”) (the “Games”). Compl. ¶ 1 [Docket No. 1]. Bungie is the owner and developer of Destiny 2, a game in which players can cooperate to fight 1 against computer-controlled opponents or fight against one another. Id. ¶¶ 22-23. Bungie offers Destiny 2 to the public for free; players simply download the software online. Id. ¶ 43. Players must purchase in-game currency to acquire optional items, unlock new characters, or gain access to exclusive content. Id. Bungie owns all rights to Destiny 2 and multiple trademarks associated with that software franchise. Id. ¶¶ 29-30. Bungie is incorporated in Delaware with its principal place of business in Bellevue, Washington. Id. ¶ 9.
R6S, created by Ubisoft, is a game in which a player assumes the role of an elite special forces operative. Id. ¶ 27. Each player must cooperate with other team members against a competing team to complete certain military-themed objectives. Id. Players must purchase a copy of the game or a license from a digital retailer. Id. ¶ 44. Players may acquire more items in game either on a “free” track or a “premium” track, the latter of which is available for purchase and that unlocks access to new benchmarks in the game and additional items. Id. ¶¶ 44-45. Ubisoft owns all rights to R6S and multiple trademarks associated with that software franchise. Id. ¶¶ 12, 35-36. Ubisoft Entertainment is incorporated and organized in France, while Ubisoft, Inc. is organized in California. Id. ¶¶ 10-11.
Plaintiffs claim that Defendants are engaged in developing, selling, and supporting software for sale to the public on the Ring-1 website that allows players to manipulate the Games to their own advantage (the “Cheating Software”). Id. ¶ 2. Defendants are software developers, operators or moderators of the Ring-1 website and its community forum, customer support and technical assistance providers, and/or resellers who acquire and resell keys for the Ring-1 software. Id. ¶ 64. They sell weekly and monthly access to the Cheating Software for both Games. Id. ¶ 65. Licenses for the Cheating Software are also available for purchase at authorized resellers. Id. ¶ 66. Defendants provide extensive and ongoing customer support for the Cheating Software. Id. ¶ 68. Plaintiffs allege the Defendants have made tens or hundreds of thousands of dollars from distribution and sale of the Cheating Software. Id. ¶ 67.
Plaintiffs claim that Defendants unlawfully accessed Plaintiffs' software code to develop the Cheating Software, which modifies and alters the way players engage with the games and circumvents the Game's anti-cheat technology. Id. ¶¶ 70-85. Defendants also unlawfully 2 reproduce and use an array of images and artworks from the Games to market the Cheating Software on the Ring-1 website. Id. ¶¶ 64-69.
According to Plaintiffs, Defendants' Cheating Software severely damages their business model. Id. ¶ 47. Plaintiffs generate revenue from the sale of game content, virtual currencies, digital enhancements or expansions, and other so-called Battle Passes (which Plaintiffs describe as a “microtransaction system” in R6S). Id. ¶¶ 44, 46. Plaintiffs say that “[i]f players perceive others are cheating or have an unfair advantage, they may grow frustrated with the Games and stop playing them, ” which will disrupt the online player community. Id. ¶ 47. Despite Plaintiffs' use of anti-cheat technologies that are installed on players' computers when the software is installed, entities like Ring-1 devise methods to avoid the detection of their cheating software, thereby generating an “arms race” of sorts between game developers like Plaintiffs and architects of cheating software like Defendants. Id. ¶¶ 52-56.
The complaint names four Defendants who are allegedly Ring-1 staff members or community members: (1) Andrew Thorpe, known by his online alias “Krypto, ” who is based in the United Kingdom; (2) Jonathan Agueda, a/k/a “Overpowered, ” based in Florida; (3) Wesam Mohammed, a/k/a “Grizzy, ” based in Indiana, and (4) Ahmad Mohammed, also based in Indiana. Compl. ¶¶ 13-16. The complaint also names Doe Defendants who are involved with the Ring-1 operation and who provide customer support, are moderators and/or administrators of the Ring-1 website, resell the Cheating Software, and/or develop and maintain the Cheating Software. Id. ¶ 19; Appl. at 4-5. Plaintiffs allege violations of the Digital Media Copyright Act, 17 U.S.C. § 1201(a)(2), the federal Copyright Act, the Lanham Act, the Computer Fraud and Abuse Act, California's Unfair Competition Law, and intentional interference with contractual relations.
Plaintiffs request early discovery to ascertain the identities of nine Doe Defendants allegedly involved in the Ring-1 venture, known only by their online aliases “Berserker, ” “Cypher, ” “Admin, ” “Calc, ” “Overseer, ” “Tralepo, ” “Frost, ” “Dove, ” and “Pingu.” Appl. at 4-5. Plaintiffs seek to issue third-party subpoenas to the following eleven entities that they suspect have information that will help identify the Doe Defendants: NameSilo, LLC; Cloudflare, Inc.; Hostwinds, LLC; DigitalOcean, LLC; Lex Holdings Group, LLC; Namecheap, Inc.; Discord Inc.; 3 Google LLC; Apple Inc.; PayPal, Inc.; and Vimeo.com, Inc. Appl. at 5. These entities are possible domain name registrars, content distributors, web hosts, communication applications, and payment processors. Id. at 5-7. The subpoenas seek the names, addresses, email addresses, and other identifying information of persons or entities who registered and use the aliases at issue with accounts administered by the third parties, as well as the Internet Protocol (IP) addresses used to access these accounts. Id. at 7.
II. LEGAL STANDARD
In the Ninth Circuit, “exceptions to the general rule” that discovery may not be initiated prior to the Federal Rule of Civil Procedure 26(f) conference are “generally disfavored.” Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). However, a court may authorize earlier discovery “for the parties' and witnesses' convenience and in the interests of justice.” Fed.R.Civ.P. 26(d)(3). Courts have permitted “limited discovery . . . after [the] filing of the complaint to permit the plaintiff to learn the identifying facts necessary to permit service on the defendant.” Columbia, 185 F.R.D. at 577; see also Gillespie, 629 F.2d at 642 (“[W]here the true identity of the defendants will not be known prior to the filing of a complaint . . . the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds”).
The plaintiff must show good cause for early discovery. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.” Id.; see also Am. LegalNet, Inc. v. Davis, 673 F.Supp.2d 1063, 1066 (C.D. Cal. 2009) (“The party seeking expedited discovery . . . has the burden of showing good cause for the requested departure from usual discovery procedures” (quoting Qwest Commc'ns Int'l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003)).
In evaluating whether a plaintiff establishes good cause to learn the identity of Doe defendants through early discovery, courts employ safeguards to ensure that such discovery “will 4 only be employed in cases where the plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant pre-service, and will prevent use of [early discovery] to harass or intimidate.” Columbia, 185 F.R.D. at 578. Courts examine whether the plaintiff (1) has “identif[ied] the missing party with sufficient specificity such that the Court can determine that the defendant is a real person or entity who can be sued in federal court, ” (2) recounted “all previous steps taken to locate the elusive defendant, ” (3) established that the action can withstand a motion to dismiss, and (4) demonstrated a “reasonable likelihood that the discovery process will lead to identifying information about [the] defendant that would make service of process possible.” Id. at 578-80.
“Generally, ex parte applications for early discovery are accompanied by declarations which explain the party's efforts to determine the individual's identity and why the plaintiff believes that subpoenas to particular service providers would yield information regarding a defendant's identity.” Bellwether Coffee Co. v. Does 1-5, No. 21-03612-JSC, 2021 WL 2333848, at *1 (N.D. Cal. June 8, 2021); see Columbia, 185 F.R.D. at 580 (calling for “a statement of reasons justifying the specific discovery requested as well as identification of a limited number of persons or entities on whom discovery process might be served”). The court considers the moving papers along with the complaint to determine if the plaintiff made a satisfactory showing of good cause. See Columbia, 185 F.R.D. at 580-81; Am. Legalnet, 673 F.Supp.2d at 1071 (considering declarations filed in support of a motion for preliminary injunction for purposes of deciding application for early discovery); see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. O'Connor, 194 F.R.D. 618, 624 (N.D. Ill. 2000) (courts must examine expedited discovery requests on the “entirety of the record”).
III. DISCUSSION
The first requirement, to identify the unknown parties with “sufficient specificity, ” is “necessary to ensure that federal requirements of jurisdiction and justiciability can be satisfied.” Columbia, 185 F.R.D. at 578. Plaintiffs must make a “satisfactory showing that there is an actual person behind the [challenged] acts who would be amenable to suit in federal court.” Id. at 578. Courts examining this factor have considered whether the plaintiff has shown that the court will 5 likely have personal jurisdiction over the defendant. See, e.g., id. (finding that the first factor was met where there was evidence most of the unknown defendants had a California domicile); Lik v. Doe, No. 20-cv-255-DMR, 2020 WL 1984281 (N.D. Cal. Apr. 27, 2020); JT Foxx Org. v. Palmer, No. 17-cv-2661-DMR, 2017 WL 3617111, at *4 (N.D. Cal. Aug. 23, 2017) (determining that the first factor was not met because the plaintiff did not demonstrate that the court likely had personal jurisdiction over the defendant). Plaintiffs bear the burden of establishing jurisdictional facts. Columbia, 185 F.R.D. at 578 (citing Wells Fargo & Co v. Wells Fargo Exp. Co., 556 F.3d 406, 430 n.24 (9th Cir. 1977)). “A court need not grant discovery based on “‘purely speculative allegations of attenuated jurisdictional contacts.'” Graco Minnesota Inc. v. PF Brands, Inc., No. 18-cv-1690, 2019 WL 1746580, at *7 (S.D. Cal. Apr. 17, 2019) (quoting Getz v. Boeing Co., 654 F.3d 852, 860 (9th Cir. 2011)). The court examines Plaintiffs' complaint, application, and accompanying declaration to determine if they have made a sufficient showing of good cause as to jurisdiction. See Bellwether Coffee, 2021 WL 2333848, at *1; Malibu Media, LLC v. Doe, 319 F.R.D. 299, 305 (E.D. Cal. 2016) (allegation in complaint that plaintiff traced Doe defendant's IP address to physical address located within court's jurisdiction established good cause to serve immediate discovery).
Plaintiffs have sufficiently identified Defendants' online aliases to establish that they are real persons and entities that may be sued. Compl. ¶¶ 17-21; Appl. at 4-5. However, they have not sufficiently shown that they may be sued in this court. In the complaint, Plaintiffs summarily allege that “[t]his Court has personal jurisdiction over Defendants because they have purposefully directed their activities at the United States, and at California in particular, have purposefully availed themselves of the benefits of doing business in California, and have established a continuing presence in California.” Compl. ¶ 7. They allege that Defendants “conduct extensive and ongoing business with users in the United States and the State of California”; they “distribute . . . advertise and market the Cheating Software . . . and communicate directly with users” in these locations; they “have entered into, and continue to enter into, contracts with individuals” in these locations and receive “recurring daily, weekly, or monthly payments” from them; they “contract with entities in the United States and the State of California in connection with their businesses, ” 6 and they “engage in conduct that they know is likely to cause harm to Plaintiffs in the United States and the State of California.” Id. Elsewhere, they allege that, on information and belief, “players residing in the United States and in the California” have downloaded and used the Cheating Software. Id. ¶ 67. In their application, Plaintiffs assert that Doe Defendants, “a mixture of U.S. and foreign individuals, ” are “subject to personal jurisdiction in U.S. federal courts.” Appl. at 9.
Plaintiffs do not provide concrete information supporting personal jurisdiction in California in their application or the supporting declaration from their counsel. See id.; Declaration of Marc E. Mayer (“Mayer Decl.”) [Docket No. 11-1]. Altogether, the conclusory statements in their pleadings and moving papers do not meet the standard sufficient to show good cause to depart from normal discovery procedures. See Columbia Ins., 185 F.R.D. at 577.
A. Legal Standard for Personal Jurisdiction
Personal jurisdiction is proper if it is “consistent with [California's] long-arm statute and if it comports with due process of law.” Boschetto v. Hansing, 539 F.3d 1011, 1020-21 (9th Cir. 2008). Under California's long-arm statute, a federal court may exercise personal jurisdiction over a defendant to the extent permitted by the Due Process Clause of the Constitution. Cal. Code Civ. Proc. § 410.10; Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800-01 (9th Cir. 2004). “A district court's exercise of jurisdiction over a nonresident defendant comports with due process when the defendant has at least ‘minimum contacts' with the forum and subjecting the defendant to an action in that forum would ‘not offend traditional notions of fair play and substantial justice.'” Ayla, LLC v. Alya Skin Pty. Ltd., 11 F.4th 972, 979 (9th Cir. 2021) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “A defendant's minimum contacts can give rise to either general or specific jurisdiction.” Id. Parties may also consent to jurisdiction through a forum selection clause. S.E.C. v. Ross, 504 F.3d 1120, 1149 (9th Cir. 2007). The court's “primary concern” is “the burden on the defendant.” Axiom Foods, Inc. v. Acerchem Int'l, Inc., 874 F.3d 1064, 1068 (9th Cir. 2017) (quoting Bristol-Meyers Squibb Co. v. Super. Ct, 137 S.Ct. 1773, 1780 (2017)). “Although lack of personal jurisdiction is a defense that may be waived by a party, the Court has an obligation to consider this issue sua sponte before entering an order 7 against an absent defendant.” U.S. Olympic Comm. v. Does 1-10, No. 08-03514-JSW, 2008 WL 2948280, at *1 (N.D. Cal. July 25, 2008) (citing In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999)). The court considers all three bases for personal jurisdiction and finds that none are satisfied.
B. General Jurisdiction
Plaintiffs have not shown the existence of general jurisdiction. “For an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home.” Bristol-Myers, 137 S.Ct. at 1780. Plaintiffs state that the nine Doe Defendants whose identity they seek to discover are all individuals involved with Ring-1's operation. Compl. ¶¶ 17-20; Appl. at 4-5. However, they do not offer any facts in their complaint, application, or declaration from which the court may infer that these unnamed individuals are domiciled in California. Other courts in this district have allowed early discovery to go forward to identify online Doe defendants after the plaintiffs demonstrated that they used geolocation technology to trace the defendants' IP addresses to physical locations in California. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 21-CV-00294-SI, 2021 WL 493395, at *1 (N.D. Cal. Feb. 10, 2021); Dallas Buyers Club LLC v. Doe-69.181.52.57, No. 16-cv-1156-JSC, 2016 WL 4259116, at *2 (N.D. Cal. Aug. 12, 2016); AF Holdings LLC v. Doe, No. 12-04447 RMW, 2012 WL 12973140, at *2 (N.D. Cal. Nov. 6, 2012); Braun v. Doe, No. 12-CV-3690-JSC, 2012 WL 3627640, at *2 (N.D. Cal. Aug. 21, 2012); Pac. Century Int'l, Ltd. v. Does 1-48, No. C11-3823-MEJ, 2011 WL 4725243, at *2 (N.D. Cal. Oct. 7, 2011). There is no indication in Plaintiffs' papers that they previously attempted to trace the Doe Defendants' IP addresses or other information to California addresses; indeed, Plaintiff seek the IP addresses through their subpoenas. Accordingly, there is nothing from which the court can infer the existence of general jurisdiction.
None of the named Defendants appear to be domiciled or “at home” in California but rather in the United Kingdom, Florida, or Indiana.
C. Specific Jurisdiction
Plaintiffs appear to invoke specific personal jurisdiction by reciting the relevant legal 8 standard in their complaint, but they have not made a sufficient showing to infer jurisdiction on that basis either. See Compl. ¶ 7. “There are three requirements for a court to exercise specific jurisdiction over a nonresident defendant: (1) the defendant must either ‘purposefully direct his activities' toward the forum or ‘purposefully avail[ ] himself of the privileges of conducting activities in the forum; (2) ‘the claim must be one which arises out of or relates to the defendant's forum-related activities'; and (3) ‘the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.'” Axiom, 874 F.3d at 1068. The court's “analysis under the ‘purposeful availment or direction' prong of the specific jurisdiction test turns on the nature of the underlying claims.” Ayla, 11 F.4th at 979. Plaintiffs allege copyright and trademark infringement claims which sound in tort, so the court applies the “purposeful direction” analysis under Calder v. Jones, 465 U.S. 783 (1984). AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1208 (9th Cir. 2020); see also Ayla, 11 F.4th at 979; Axiom, 874 F.3d at 1069. “Under this test, ‘the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.'” AMA Multimedia, 970 F.3d at 1209 (quoting Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1228 (9th Cir. 2011)). The plaintiff bears the burden under the first two prongs. Ayla, 11 F.4th at 979.
With respect to the first prong, “a defendant acts intentionally when he acts with ‘an intent to perform an actual, physical act in the real world, rather than an intent to accomplish a result or consequence of that act.'” AMA Multimedia, 970 F.3d at 1209 (quoting Schwarzenegger, 374 F.3d at 806)). Plaintiffs allege that “Defendants collectively are engaged in developing, updating, marketing, distributing, selling, deploying, and supporting the Cheating Software.” Compl. ¶ 64. The complaint describes a concerted effort to access Plaintiffs' software clients without authorization, develop the Cheating Software, and publicly sell it through the Ring-1 website and third-party resellers. Id. ¶¶ 64-73. These constitute intentional acts for the purposes of establishing the first prong of the Calder test. See AMA Multimedia, 970 F.3d at 1209.
However, Plaintiffs do not meet the second prong because they have not sufficiently shown that the acts were expressly aimed at California. The Supreme Court has established that 9 the “express aiming” test requires a showing that “the defendant's conduct connects him to the forum in a meaningful way, ” not merely to a forum resident. Walden v. Fiore, 571 U.S. 277, 290 (2014) (emphasis added); see also Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1148-49 (9th Cir. 2017) (“Plaintiffs were required to make a prima facie showing that Defendants' alleged actions were directed at [the forum state], not just at individuals who resided there.”). “Express aiming requires more than the defendant's awareness that the plaintiff it is alleged to have harmed resides in or has strong ties to the forum, because ‘the plaintiff cannot be the only link between the defendant and the forum.'” Ayla, 11 F.4th at 980 (quoting Walden, 571 U.S. at 285). “‘[S]omething more-conduct directly targeting the forum'-is required to confer personal jurisdiction.” Id. (quoting Mavrix, 647 F.3d at 1229). In the case of a nationally accessible passive website, that “something more” could constitute the “interactivity of the defendant's website, the geographic scope of the defendant's commercial ambitions, and whether the defendant individually targeted a plaintiff known to be a forum resident.” Mavrix, 647 F.3d at 1228 (internal citations and quotations omitted).
District courts in California have “declined to find express aiming based on alleged sales of products that infringe intellectual property rights through commercial, interactive websites accessible to California consumers.” Graco, 2019 WL 1746580, at *4-6 (sale of allegedly infringing products through online customers, at least some in California, and California-based plaintiff insufficient to show California was “focal point” of the alleged harm). Recently, a court in this district granted a Rule 12(b)(2) motion where the defendant had allegedly distributed an app-based videogame that was a “blatant clone” of the plaintiff's copyrighted videogame. Good Job Games Bilism Yazilim Ve Pazarlama A.S. v. SayGames LLC, 458 F.Supp.3d 1202, 1205 (N.D. Cal. May 7, 2020) (Chen, J.). There, the plaintiff argued that the defendant “expressly aimed its infringing act to California by: (1) contracting to distribute its game through Apple and Google, both of which have headquarters in California; (2) making its game available to users in California; (3) advertising the game with California-based companies like Facebook; and (4) offering the game in English.” Id. at 1207. The court held that “[t]he mere availability of downloading [the infringing content] in California, by itself, does not create personal jurisdiction.” 10 Id. at 1207. The allegedly infringing game had “no specific focus in California; the app-based videogame is not about California or anything in/from California.” Id. at 1209. None of the defendant's advertisements were directed at California or even mentioned this state. Id. The court also noted that there was no evidence that the downloads of the infringing game were “concentrated in California” and no allegations that there was “anything unique about the California-consumer market” that directed the defendant's activities to this forum. See Id. at 1210.
Here, Plaintiffs have not shown that each Doe Defendant sought to engage a significant California user base for the Cheating Software. In fact, Plaintiffs “ha[ve] not identified anything unique about California that caused [the Doe Defendants] to target this forum state.” Good Job Games, 458 F.Supp.3d at 1207. To begin with, all of Plaintiffs' relevant allegations describe Defendants' aggregate conduct and activities with users “in the United States and the State of California.” By lumping California together with the rest of the United States, it is impossible to analyze whether each Doe Defendant expressly aimed their intentional acts at the forum state. Plaintiffs allege, for example, that Defendants “communicate[d] directly with users in the United States and California” and that “the Cheating Software has been downloaded and used . . . including by players residing in the United States and in California.” Compl. ¶¶ 7, 67.
As was the case in Good Job Games, Plaintiffs' non-specific allegations that the Doe Defendants conduct business with and market to U.S. and California users, and contract with forum-based third parties, are insufficient to establish purposeful direction. See Id. Plaintiffs do not specifically describe any users in California, any particular business dealings the Doe Defendants had in California or with California-based entities, or any advertisements or content focused on Game players in California. “The mere availability of downloading [the Cheating Software] in California, by itself, does not create personal jurisdiction.” Good Job Games, 458 F.Supp.3d at 1208; see Compl. ¶ 67.
To the extent Plaintiffs seek to invoke jurisdiction based on contracts between the Ring-1 website and third-party entities such as NameSilo, Cloudfare, and PayPal, their efforts fall short. Compl. ¶ 7(d). Plaintiffs fail to describe these contracts in sufficient detail for the court to infer the existence of specific jurisdiction for each Doe Defendant. Plaintiffs briefly explain the nature 11 of each contract-for example, “Plaintiffs believe that NameSilo, LLC was the [domain name] registrar used to register . . . the domain for the Ring-1 Website”-but they do not show that these third-party entities are headquartered in California, that there are contracts between any of the entities and any of the Doe Defendants, or that the contracts demonstrate express aiming by each Doe Defendant at California. Appl. at 5-7; see Good Job Games, 458 F.Supp.3d at 1208 (ruling that plaintiff could not rely on relationships with “third parties headquartered in California to establish that [defendant] directed its intentional acts toward this state because the focal of those headquarters in California are unrelated to [defendant's] interests in the transaction at issue.”).
In fact, one of the third-party entities, Lex Holdings Group, is based in Michigan or the United Kingdom, not California. Appl. at 5-6.
In sum, Plaintiffs must establish “something more” in how the Doe Defendants focused on California to warrant jurisdiction here. Mavrix, 647 F.3d at 1228. Compare Ayla, 11 F.4th at 980 (specific jurisdiction where defendant's specific marketing, sales, and operations that “reflect[ed] significant focus” with an “intentional, explicit appeal” to consumers in forum), and Mavrix, 647 F.3d at 1230 (website maintained a “specific focus on the California-centered celebrity and entertainment industries”), with AMA Multimedia, 970 F.3d at 1210-12 (pornography website's uploading features and advertisements lacked “forum-specific focus”), and Axiom, 874 F.3d at 1070-71 (no express aiming where only ten recipients of alleging infringing newspaper in California). Because of Plaintiffs' “purely speculative allegations of attenuated jurisdictional contacts, ” early discovery is not warranted at this stage. Getz, 654 F.3d at 860.
D. Consent Jurisdiction
Plaintiffs do not appear to argue that the Doe Defendants affirmatively consented to jurisdiction in California through a forum selection clause. See, e.g., Binbit Argentina, S.A. v. Does 1-25, No. 19-cv-5384-KAW, 2020 WL 4284816 at *2 (N.D. Cal. July 27, 2020) (granting early discovery where unnamed defendants that contracted with California-based companies assented to forum selection clause in websites' terms of use).
In sum, the Plaintiffs have not established good cause to issue the subpoenas to discover identities of the Doe Defendants because they have not met the jurisdictional requirement that the 12 Doe Defendants may be sued in this court. For the same reason, Plaintiffs would not be able to withstand a motion to dismiss. See Columbia Ins. Co., 185 F.R.D. at 578-79.
IV. CONCLUSION
Because Plaintiffs have not met their burden of showing the existence of personal jurisdiction over the Doe Defendants, the court need not reach the remaining Columbia requirements. However, it is worth noting that Plaintiffs may also have problems satisfying the second element, which requires them to show they “ma[de] a good faith effort to comply with the requirements of service of process and specifically identify[] defendants.” Columbia, 185 F.R.D. at 578. The cursory explanation in counsel's declaration that Plaintiffs' investigators made “best efforts” to ascertain the Doe Defendants' identities, Mayer Decl. ¶ 7, does not detail what steps were taken.
For the foregoing reasons, the court denies Plaintiffs' ex parte application for early discovery without prejudice. See JT Foxx, 2017 WL 3617111, at *6 (denying ex parte application for early discovery on jurisdictional grounds alone); Berlin Media Art e.k. v. Does 1-654, No. 11-03770-JSC, 2001 WL 36383080, at *3 (N.D. Cal. Oct. 18, 2011) (same).
IT IS SO ORDERED. 13