Nu Image, Inc v. 1–23,322, Civil Action No. 11–cv–00301 (RLW).

• Decision Date: 29 July 2011
• Docket Number: Civil Action No. 11–cv–00301 (RLW).
• Citation: 102 U.S.P.Q.2d 1114,799 F.Supp.2d 34
• Parties: NU IMAGE, INC, Plaintiff, v. DOES 1–23,322, Defendants.
• Court: U.S. District Court — District of Columbia

102 U.S.P.Q.2d 1114

799 F.Supp.2d 34

NU IMAGE, INC, Plaintiff,

v.DOES 1–23,322, Defendants.

Civil Action No. 11–cv–00301 (RLW).

United States District Court, District of Columbia.

July 29, 2011.

Nicholas A. Kurtz, Thomas Mansfield Dunlap, Dunlap, Grubb & Weaver, PLLC, Washington, DC, for Plaintiff.

MEMORANDUM OPINION DENYING MOTION FOR EXPEDITED DISCOVERY

ROBERT L. WILKINS, District Judge.

The Plaintiff in this action, Nu Image, Inc., is a California corporation that allegedly owns the copyright and/or pertinent exclusive rights to a motion picture entitled “The Expendables.” Plaintiff brings this copyright infringement action against 23,322 John Doe Defendants, who have allegedly employed the Internet to use “BitTorrent protocol” or “torrent” software to unlawfully download a pirated copy of Plaintiff's movie onto their computers. The Plaintiff alleges that the BitTorrent technology allows a Defendant who downloads the movie to also assist in the uploading of a copy of the movie to someone else, leading to “swarm downloads” and “viral” infringement of its copyright rights. Plaintiff alleges in its complaint that the true names and addresses of the Defendants are unknown to it at this time, but that its investigation has revealed the Internet Protocol (“IP”) address that was assigned to each Defendant by his or her Internet Service Provider at the time of the alleged infringing activity. Before the Court is Plaintiff's motion to serve discovery prior to a Rule 26(f) conference on several non-party Internet Service Providers (ISPs) to determine the true identities and addresses of the 23,322 Doe Defendants.

On June 7, 2011, the Court issued an order to show cause. In that order, the Court ordered Plaintiff to:

show cause as to why venue and joinder is proper for all 23,322 putative defendants in this case ... [or alternatively] seek leave to amend its complaint to name a certain subset of defendants and file a new motion for expedited discovery, addressing both legally and factually why venue and joinder is proper as to each defendant, and how Plaintiff intends to establish the same.

June 7, 2011 Order (Docket No. 9 at 4). Plaintiff has elected not to fully respond to the Court's order, as Plaintiff did not attempt to show why venue was proper as to all 23,322 putative defendants. Plaintiff also chose not to submit an amended complaint and a new motion for discovery with respect to a subset of defendants.

Instead, Plaintiff has filed a response that basically contends that joinder is appropriate as to all 23,322 putative defendants, and that Plaintiff should not be required to make a showing as to venue at this time in order to justify the requested discovery. The Court respectfully disagrees.

Plaintiff argues that its motion is akin to a request for jurisdictional discovery, that jurisdictional discovery is liberally granted in most circumstances, and that it is ordinarily not appropriate for the Court to dismiss a case for lack of venue or personal jurisdiction sua sponte. While those propositions are generally true, it is also true that the Court “has broad discretion in its resolution of discovery problems that arise in cases pending before it.” Hussain v. Nicholson, 435 F.3d 359, 363 (D.C.Cir.2006) (citing In re Multi–Piece Rim Prods. Lib. Litig., 653 F.2d 671, 679 (D.C.Cir.1981)); see also Fed.R.Civ.P. 26(b)(2)(c) (requiring the court to limit discovery when “the burden or expense of the proposed discovery outweighs its likely benefit”). The Court's broad discretion includes imposing reasonable limitations on discovery, particularly where, as here, the Court has a duty to prevent undue burden, harassment, and expense of third parties. In re Micron Tech., Inc. Sec. Litig., 264 F.R.D. 7, 9 (D.D.C.2010) (the “undue burden” test also requires the court to be “generally sensitive to the costs imposed on third-parties”). Furthermore, while jurisdictional discovery is liberally granted, a plaintiff is not entitled to take it solely because he requests it—he still must make the requisite showing of good cause. Thus, the law of this Circuit clearly requires that in order to engage in jurisdictional discovery, the plaintiff “must have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant.” Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C.Cir.1998); see also Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F.Supp.2d 1, 11 (D.D.C.2009) (while as a general matter discovery should be “freely permitted,” jurisdictional discovery is justified only if the plaintiff “reasonably demonstrates that it can supplement its jurisdictional allegations through discovery”). “Mere conjecture or speculation” is not enough to justify jurisdictional discovery. FC Investment Group LC v. IFX Markets Ltd., 529 F.3d 1087, 1094 (D.C.Cir.2008). As is further explained below, Plaintiff has failed to show good cause to obtain the broad discovery it seeks and has not demonstrated that it will be able to supplement its jurisdictional allegations through discovery.

The Court issued the order to show cause, in part, to seek clarity on the issue of venue. It is worth noting here that Plaintiff's counsel has brought similar copyright infringement suits before this Court, and has asserted in each that venue is proper within this District under 28 U.S.C. § 1391(b) and/or 28 U.S.C. § 1400(a).¹ However, when copyright infringement is the sole claim being alleged, it is misleading, and arguably disingenuous, to assert that venue may be proper under section 1391(b), the general venue statute, when section 1400(a) is the exclusive venue statute for copyright infringement actions.

As described in the Court's prior order, venue for claims asserted under the Copyright Act is governed by 28 U.S.C. § 1400(a), which requires that a civil suit to enforce the Copyright Act be brought in a judicial district “in which the defendant or his agent resides or may be found.” 28 U.S.C. § 1400(a). In essence, section 1400(a) requires that every single defendant can be “found here” in order for venue to be proper in this Court. Plaintiff has made no effort to dispute, and has not provided the Court with any authority to dispute, that section 1400(a) is the correct venue provision. ²

The application of the correct venue statute materially affects the analysis of Plaintiff's motion for leave to take expedited discovery. Application of section 1400(a) means that venue will only be appropriate in this district for those putative defendants who reside in the District of Columbia, or alternatively, as to those putative defendants for whom the Court has personal jurisdiction pursuant to the District of Columbia's long-arm statute, D.C.Code § 13–423. The subsection of the District of Columbia long-arm statute that applies to tort claims—which is used for copyright actions ³—requires that the tortious injury occur in the District of Columbia in order for this Court to have personal jurisdiction. ⁴ The District of Columbia's long-arm statute is “more restrictive than the Due Process Clause of the Constitution—meaning that the District government has made a deliberate decision not to allow access to D.C. courts to every person who is injured here and otherwise could bring a claim for civil redress.” Kopff v. Battaglia, 425 F.Supp.2d 76, 82 (D.D.C.2006) (citing Crane v. Carr, 814 F.2d 758, 762 (D.C.Cir.1987) (“The drafters of this provision apparently intended that the (a)(4) subsection would not occupy all of the constitutionally available space.”)). Thus, a District of Columbia court may only exercise personal jurisdiction over a nonresident defendant in this matter if the defendant “causes tortious injury in the District of Columbia.”

In a very recent decision, the United States Court of Appeals for the Second Circuit has had occasion to rule, in the context of New York's long-arm statute, on where the tortious injury occurs in an internet piracy copyright infringement action. Significantly, the District of Columbia's long-arm statute is very similar to New York's statute. New York's long-arm statute allows a court in New York to exercise personal jurisdiction over an out-of-state defendant when the nondomiciliary: “commits a tortious act without the state causing injury to person or property within the state, ... if he ... expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” 35 N.Y. C.P.L.R. § 302(a)(3)-(4) (emphasis added). The Second Circuit, after certifying the question to the New York Court of Appeals, held that for purposes of determining jurisdiction under New York's long-arm statute in a copyright infringement action, the situs of the injury is the location of the copyright holder. Penguin Group (USA), Inc. v. Am. Buddha, 640 F.3d 497, 500–501 (2d Cir.2011). This Court finds the reasoning in American Buddha persuasive, particularly the explanation that “the unique bundle of rights granted to copyright owners” by the Copyright Act and the “overarching right to exclude others from using his property” tips the balance in favor of identifying the situs of the injury as the location of the copyright holder. Id. at 4 (internal quotation marks and citation omitted).

The District of Columbia Circuit has not had occasion to rule on the situs of the tortious injury in a copyright infringement case for the purpose of the District of Columbia's long-arm statute. However, the District of Columbia Circuit has held that economic injury does not necessarily occur where the plaintiff is domiciled, but rather that the site of the injury is the location of the “original events that caused the alleged injury.” Helmer v. Doletskaya, 393 F.3d 201, 209 (D.C.Cir.2004) (declining to exercise personal jurisdiction over plaintiff's fraud claim because the...