Case 1:19-cv-20761-UU Document 11 Entered on FLSD Docket 05/08/2019 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:19-cv-20761-UU
STRIKE 3 HOLDINGS, LLC,
Plaintiff,
v.
JOHN DOE subscriber assigned IP address
72.28.136.217,
Defendant.
____________________________________/
ORDER
THIS CAUSE is before the Court upon Plaintiff’s Motion for Leave to Serve a Third-Party
Subpoena Prior to Rule 26(f) Conference (the “Motion”). D.E. 6. The Court has reviewed the
pertinent portions of the record and is otherwise fully advised in the premises.
In the instant Motion Plaintiff seeks leave to serve Cogeco Communications, Inc., LLC, an
Internet Service Provider (“ISP”), with a subpoena pursuant to Federal Rule of Civil Procedure 45
in order to obtain the identifying information for the subscriber associated with Internet Protocol
(“IP”) address 72.28.136.217.
On April 17, 2019, the Court ordered Plaintiff to show good cause as to why the Court may
reasonably rely on Plaintiff’s usage of geolocation or other technologies to establish: (1) the
identity of the Defendant; and (2) that the Defendant may be found within this district. D.E. 8.
Additionally, the Court ordered Plaintiff to show good cause as to why this case should not be
dismissed for improper venue. Id.
On April 23, 2019, Plaintiff filed its response to the Court’s order. D.E. 9. Plaintiff has
shown that the geolocation software can provide a location for an infringing IP address. However,
other than stating that it is “plausible” that Plaintiff could identify the infringer via his or her IP
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address, Plaintiff has not shown how this geolocation software can establish the identity of the
Defendant or that he or she may be found in this district and therefore Plaintiff has not shown good
cause as to why this case should not be dismissed for improper venue. There is nothing that links
the IP address location to the identity of the person actually downloading and viewing Plaintiff’s
videos, and establishing whether that person lives in this district. For example, it is entirely
possible that the IP address belongs to a coffee shop or open Wi-Fi network, which the alleged
infringer briefly used on a visit to Miami. Even if the IP address were located within a residence
in this district, the geolocation software cannot identify who has access to that residence’s
computer and who actually used it to infringe Plaintiff’s copyright. See In re BitTorrent Adult Film
Copyright Infringement Cases, 296 F.R.D. 80, 84 (E.D.N.Y. 2012) (“[I]t is no more likely that the
subscriber to an IP address carried out a particular computer function—here the purported illegal
downloading of a single pornographic film—than to say an individual who pays the telephone bill
made a specific telephone call.”).
Plaintiff makes much of the fact that many courts in this circuit have permitted this limited
discovery to confirm venue. D.E. 9 at 2-3, but “several 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.” Malibu Media, LLC v. Doe, No. PWG-13-365, 2014 WL 7188822,
at *4 (D. Md. Dec. 16, 2014); see Patrick Collins, Inc. v. Doe 1, 288 F.R.D. 233, 237-39 (E.D.N.Y.
2012) (finding an IP address insufficient to identify an infringer because “the actual device that
performed the allegedly infringing activity could have been owned by a relative or guest of the
account owner, or even an interloper without the knowledge of the owner”); Patrick Collins, Inc.
v. John Does 1-4, No. 12 Civ. 2962(JB), 2012 WL 2130557, at *1 (S.D.N.Y. June 12, 2012) (“The
fact that a copyrighted work was illegally downloaded from a certain IP address does not

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necessarily mean that the owner of that IP address was the infringer Pursuant to Rule 26(d)(1),
absent a court order a party may not propound discovery in advance of a Rule 26(f) conference.”)
“And some courts have adopted the view that an IP address is not-or may not be-a sufficient
basis on which a plausible claim can lie against a subscriber.” Malibu Media, LLC, 2014 WL
7188822, at *4; see Elf-Man, LLC v. Cariveau, No. C13-0507RSL, 2014 WL 202096, at *2 (W.D.
Wash. Jan. 17, 2014) (“While it is possible that one or more of the named defendants was
personally involved in the download, it is also possible that they simply failed to secure their
connection against third-party interlopers.”); Malibu Media, LLC v. Tsanko, No. 12-3899, 2013
WL 6230482, at *10 (D.N.J. Nov. 30, 2013) (“The Court questions whether these allegations are
sufficient to allege copyright infringement stemming from the use of peer-to-peer file sharing
systems where the Defendant-corporation is connected to the infringement solely based on its IP
address. It may be possible that Defendant is the alleged infringer that subscribed to this IP address,
but plausibility is still the touchstone of Iqbal and Twombly.”); AF Holdings LLC v. Rogers, No.
12cv1519, 2013 WL 358292, at *3 (S.D. Cal. Jan. 29, 2013) (“Due to the risk of ‘false positives,’
an allegation that an IP address is registered to an individual is not an allegation that an IP address
is registered to an individual is not sufficient in and of itself to support a claim that the individual
is guilty of infringement.”);
Thus, the Court finds that Plaintiff has not established good cause for the Court to
reasonably rely on Plaintiff’s usage of geolocation to establish the identity of the Defendant. The
Court also finds that Plaintiff has not established good cause as to why this case should not be
dismissed for improper venue. See Otis Clapp & Son, Inc. v. Filmore Vitamin Co., 754 F.2d 738,
743 (7th Cir.1985) (recognizing that district court judges are given broad discretion to supervise

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the discovery process, and their decisions are subject to review only for abuse of discretion).
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Motion, D.E. 6, is DENIED. it is further
ORDERED AND ADJUDGED that the action is DISMISSED WITH PREJUDICE. it is
further
ORDERED AND ADJUDGED that the Clerk of Court SHALL administratively close this
case. All future hearings are CANCELLED and all pending motions are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this __7th_ day of May, 2019.

_______________________________
URSULA UNGARO
UNITED STATES DISTRICT JUDGE
copies provided: counsel of record

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