Bungie, Inc. v. Thorpe

Background

Bungie, Inc., Ubisoft Entertainment, and Ubisoft, Inc. alleged that Andrew Thorpe, Jonathan Agueda, Wesam Mohammed, Ahmad Mohammed, and unnamed defendants operated an online venture called Ring-1. According to the complaint, Ring-1 sold software that allowed players to cheat in Bungie’s “Destiny 2” and Ubisoft’s “Tom Clancy’s Rainbow Six: Siege.” The plaintiffs asserted claims under federal copyright and trademark laws, the Digital Millennium Copyright Act, the Computer Fraud and Abuse Act, California’s Unfair Competition Law, and California law governing intentional interference with contractual relations.

The plaintiffs sought permission to take limited discovery before the normal discovery process began. They wanted subpoenas directed to third parties, including domain registrars, web hosts, technology companies, payment processors, and a video-sharing company, to obtain identifying information about nine Doe Defendants known only by online aliases.

Legal standard

Early discovery before the parties’ required discovery-planning conference is generally disfavored in the Ninth Circuit. A court may allow it when the requesting party shows good cause. Courts evaluating a request to identify anonymous defendants generally consider whether the plaintiff has identified a real person or entity who may be sued in federal court, described efforts to locate that defendant, shown that the complaint could survive a motion to dismiss, and demonstrated a reasonable likelihood that discovery would produce information permitting service.

The court focused on whether the plaintiffs had shown that the Doe Defendants could be sued in the Northern District of California. Personal jurisdiction generally requires sufficient connections, or “minimum contacts,” between the defendant and the forum. For specific jurisdiction, the defendant must have purposefully directed conduct toward the forum, the claim must arise from or relate to that conduct, and exercising jurisdiction must be reasonable.

Court’s reasoning

The court found that the plaintiffs had identified the Doe Defendants with enough specificity to show that they were real people or entities who might be sued. But the plaintiffs did not sufficiently show that the Doe Defendants were subject to personal jurisdiction in California.

The plaintiffs did not provide facts showing that the individual Doe Defendants were domiciled in California, so the court found no basis for general jurisdiction. The plaintiffs also relied on broad allegations that the defendants conducted business with users in the United States and California, communicated with users there, and sold software that California residents could download. The court held that these allegations did not show that each Doe Defendant specifically targeted California, rather than merely making the software generally available to people there.

The court also rejected reliance on the Doe Defendants’ alleged contracts with third-party companies. The plaintiffs did not describe those contracts in enough detail, show that the third parties were headquartered in California, establish that the contracts were with each Doe Defendant, or show that the contracts demonstrated purposeful targeting of California.

Because the plaintiffs had not shown personal jurisdiction, the court concluded that they had not established good cause for the requested subpoenas. The court therefore did not reach the remaining early-discovery requirements, although it noted that the plaintiffs might also have difficulty showing that they had made a good-faith effort to identify the defendants before seeking discovery.

Disposition

The court denied the plaintiffs’ ex parte application for leave to take limited early discovery without prejudice. This ruling addressed the discovery request and the showing of personal jurisdiction; it did not decide the merits of the plaintiffs’ underlying copyright, trademark, or other claims.