1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANDREW GLADWIN, Case No. 25-cv-03370-LJC

8 Plaintiff,

ORDER TO SHOW CAUSE WHY

9 v. CASE SHOULD NOT BE DISMISSED

AND MOTION SHOULD NOT BE

10 JOHN DOE, DENIED 11 Defendant. Re: Dkt. Nos. 16, 17

12 A. Introduction 13 Plaintiff Andrew Gladwin, a United Kingdom citizen who sells instructional materials 14 related to stage magic, alleges that Defendant John Doe purchased some of those materials from 15 him and wrongfully copied and resold them. See generally Am. Comp. (ECF No. 16).1 Gladwin 16 seeks leave to serve an early subpoena on Comcast to determine Doe’s identity based on the IP 17 address that Doe used to purchase products from Gladwin. ECF No. 17. 18 The Court previously ordered Gladwin to show cause why his attorney Adam H. Rose, 19 who is not a member of this Court’s bar, should not be disqualified from representing him. ECF 20 No. 9. Gladwin has now retained local counsel and the Court has granted Rose’s application to 21 appear pro hac vice. See ECF Nos. 12–15. The previous Order to Show Cause is hereby 22 DISCHARGED. 23 For the reasons discussed below, Gladwin is now ORDERED TO SHOW CAUSE why 24 this case should not be dismissed for lack of subject matter jurisdiction, and why his application to 25 serve a subpoena should not be denied. 26 1 The Court previously noted that Gladwin’s original filings did not comply with Civil Local Rule 27 3-4’s requirements for form. ECF No. 9. Gladwin’s Amended Complaint (ECF No. 16) and B. Subject Matter Jurisdiction 1 Gladwin brings claims for fraud, conversion, and unjust enrichment under California law, 2 with no claims under federal law. Am. Compl. ¶¶ 11–29. He asserts diversity jurisdiction under 3 28 U.S.C. § 1332 “given the parties of [sic] residents of different states and the amount in 4 controversy is estimated to be over $75,000.00.” Id. ¶ 4. Gladwin’s Amended Complaint does not 5 address how he estimated an amount in controversy over that threshold, and its exhibits (which 6 include Gladwin’s prices for some of the products at issue, ranging from $1.99 to $65.00) suggest 7 that the case would need to involve a very high volume of sales—or some other basis for 8 damages—to meet the $75,000 threshold of § 1332(a). 9 As another district court has stated: 10 Federal district courts “have an independent obligation to determine 11 whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 12 (2006). For diversity jurisdiction to exist, the amount in controversy must exceed $75,000. 28 U.S.C. § 1332(a). This amount is generally 13 determined from the face of the pleadings. See Crum v. Circus Circus Enters., 231 F.3d 1129, 1131 (9th Cir. 2000). Conclusory allegations 14 of the amount in controversy are insufficient to invoke diversity jurisdiction. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 15 1089, 1090–91 (9th Cir. 2003). The party who invokes jurisdiction bears the burden of demonstrating its existence. Kokkonen v. 16 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 17 Johnson v. Costco Wholesale Corp., No. 5:24-cv-01392-SSS-DTBx, 2024 WL 3347359 (C.D. 18 Cal. July 8, 2024). 19 Accordingly, Gladwin is ORDERED TO SHOW CAUSE why this case should not be 20 dismissed sua sponte for lack of subject matter jurisdiction, and why his Amended Motion to serve 21 a subpoena should not be denied for the same reason. 22 C. Service of Subpoena 23 A party generally cannot take discovery “before the parties have conferred as required by 24 Rule 26(f).” Fed. R. Civ. P. 26(d)(1). A court may authorize a party to serve a subpoena before 25 that discovery conference, including for purposes of determining a defendant’s identity, upon a 26 showing of good cause. See, e.g., UMG Recordings, Inc. v. Doe, No. C-08-03999 RMW, 2008 27 WL 4104207, at *1 (N.D. Cal. Sept. 4, 2008). 1 subscriber to whom Comcast has assigned the IP address 98.45.178.220. See generally ECF No. 2 17. If Gladwin establishes the Court’s subject matter jurisdiction as discussed above, the Court is 3 open to authorizing a subpoena to determine Defendant’s identity, but would require a more 4 thorough showing of the relevance of this information before doing so. 5 First, Gladwin’s Amended Motion includes a handful of exhibits, but no declaration 6 authenticating them. Gladwin must provide a declaration by someone with personal knowledge of 7 the facts at issue (potentially Gladwin himself) to show that the identity of this particular 8 subscriber is relevant to the case. 9 Second, even if Gladwin’s exhibits were accepted at face value, they show only that the IP 10 address at issue was used to purchase certain products from Gladwin. There is no indication that 11 the IP address was associated with the purportedly wrongful resale of those products. Gladwin 12 must offer at least some evidence supporting his belief that the subscriber who is assigned that IP 13 address is the John Doe defendant who allegedly resold Gladwin’s products. 14 Third, it is not clear how Gladwin determined that the IP address corresponds to Comcast 15 subscriber, or how he determined that the subscriber is likely located in this district. Gladwin 16 must offer evidence as to those issues as well. 17 Finally, Gladwin has not provided a copy of the proposed subpoena, so it is not entirely 18 clear exactly what disclosure would be required if the Court granted his Motion. The “good 19 cause” inquiry here will take into account potential burdens on Comcast and potentially privacy 20 interests of the subscriber. Gladwin’s Proposed Order identifies the categories of information that 21 he seeks, ECF No. 17-2, but the Court will be better able to assess his request if Gladwin provides 22 a copy of the subpoena he intends to serve. 23 Gladwin is therefore ORDERED TO SHOW CAUSE why his Amended Motion for leave 24 to serve a subpoena should not be denied. For an example of the sort of materials this Court has 25 found sufficient to grant a similar request, Gladwin is encouraged to review the application in 26 Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP Address 73.222.135.245, No. 25-cv- 27 02334-LJC, ECF No. 8 (N.D. Cal. Mar. 25, 2025). D. Nondisclosure of Subpoena 1 Gladwin seeks a “gag order” (to use his words) prohibiting Comcast from disclosing the 2 existence of the subpoena to the subscriber whose identity would be revealed. ECF No. 17 at 3. 3 He asserts that “[c]ourts have granted similar protective orders where notification could result in 4 the destruction of digital evidence, including transaction logs, sales records, and communications 5 with third parties.” Id. 6 The out-of-circuit district court decision Gladwin cites for that proposition says nothing of 7 the sort. See generally John Wiley & Sons, Inc. v. Doe Nos. 1-30, 284 F.R.D. 185, 187 (S.D.N.Y. 8 2012). The plaintiff there did not seek a protective order barring disclosure of the subpoenas at 9 issue to the subscribers whose information was sought, and the court did not include any such 10 provision in its order authorizing the subpoenas. See John Wiley & Sons, Inc. v. Doe Nos. 1–30, 11 No. 1:12-cv-03782-LTS-JLC, ECF Nos. 2 & 6 (S.D.N.Y. May 24 & 31, 2012). At least one of the 12 subscribers apparently received notice of the subpoena, because she moved to quash it. John 13 Wiley & Sons, 284 F.R.D. at 188. The subscriber in that case also sought a protective order to 14 prevent the disclosure of her personal information, but the plaintiff did not seek a protective order 15 preventing disclosure of the subpoena, and there is no indication that the court believed such an 16 order would be appropriate. 17 Gladwin also cites two circuit decisions in this general section of his Amended Motion, 18 neither of which is of any more help to his position. Foltz v. State Farm Mutual Automobile 19 Insurance Co., 331 F.3d 1122 (9th Cir. 2003), addressed the circumstances in which “parties other 20 than the original litigants may gain access to materials that a court has placed under protective 21 seal.” 331 F.3d at 1127. It says nothing about shielding the existence of a subpoena from 22 disclosure to a party to the case whose personal information the subpoena seeks to discover. And 23 Phillips v. General Motors Corporation, 289 F.3d 1117 (9th Cir. 2002), not only addressed the 24 same topic as Foltz (rather than the sort of secrete subpoena Gladwin seeks to serve here), but also 25 was not the final version of the Court’s decision—the Ninth Circuit subsequently issued an 26 amended, equally inapposite opinion that superseded the opinion Gladwin cited. See generally 27 Phillips ex rel. Ests. of Byrd v. Gen. Motors Corp., 307 F.3d 1206 (9th Cir. 2002). 1 Gladwin’s failure to use specific page citation further complicates the Court’s task of 2 || determining what portions of these cases he might have considered relevant to the issues at hand. 3 Going forward, Gladwin is ORDERED to cite specific relevant pages of cases where applicable. 4 Gladwin asserts that nondisclosure is necessary to prevent Defendant from destroying 5 evidence, but the next step after Defendant is identified would presumably be for Gladwin to serve 6 || Defendant with process as required by Rule 4 of the Federal Rules of Civil Procedure, at which 7 point Defendant will be aware of this action. Unless Gladwin intends to conduct still further 8 secret discovery, it is not clear what practical purpose nondisclosure of the subpoena would serve. 9 This Court’s usual practice in authorizing early subpoenas to identify defendants by their 10 || IP addresses is not only to allow internet service providers to disclose the subpoenas to their 11 subscribers, but to require such disclosure and allow subscribers an opportunity move to quash a 12 subpoena if they believe disclosure is unwarranted. E.g., Strike 3 Holdings, LLC v. John Doe 5 13 || Subscriber Assigned IP Address 73.222.135.245, No. 25-cv-02334-LJC, ECF No. 9, 9.6 □□□□□ 14 || Cal. Apr. 7, 2025). Gladwin is ORDERED TO SHOW CAUSE why the Court should not take 3 15 that approach here. If Gladwin intends to pursue his request for a nondisclosure order, he must 16 || identify legal authority supporting that request. 2 17 E. —_ Conclusion 2 18 For the reasons discussed above, Gladwin is ORDERED TO SHOW CAUSE why this 19 case should not be dismissed and his motion to serve an early subpoena (including but not limited 20 || to the request for a nondisclosure order) should not be denied. Gladwin must file a response no 21 later than May 22, 2025 22 IT IS SO ORDERED. 23 Dated: May 7, 2025 24 25 ls, | hari — 6 yA J. CISNEROS ited States Magistrate Judge 27 28