1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BINBIT ARGENTINA, S.A., Case No. 19-cv-05384-KAW

8 Plaintiff,

ORDER GRANTING MOTION FOR

9 v. EARLY DISCOVERY

10 JOHN DOES 1-25, et al., Re: Dkt. No. 18 11 Defendants.

12 13 On August 27, 2019, Plaintiff Binbit Argentina, S.A. filed the instant case, asserting claims 14 for breach of contract and violations of the Computer Fraud and Abuse Act. (Compl. at 1, Dkt. 15 No. 1.) Plaintiff is an Argentinian company that provides mobile entertainment services. (Compl. 16 ¶ 6.) To attract new customers, Plaintiff contracts with companies (“Networks”) that offer online 17 marketing services through third parties called affiliates (“Affiliates”), who create advertising 18 campaigns to encourage customers to use Plaintiff’s services. (Compl. ¶¶ 12, 13.) 19 Plaintiffs allege that between February and April 2017, Defendants – an unknown Affiliate 20 and/or Network – “created a misleading and fraudulent advertising campaign to sign up for 21 [Plaintiff]’s services.” (Compl. ¶¶ 15, 16.) Defendants fraudulently advertised that in exchange 22 for filling out a three-question survey, the user would receive 1,000 Ferrero Rocher chocolate 23 eggs. (Compl. ¶ 17.) Users would be directed to webpages hosted on “MyPromos.vip” and 24 “SuperPromos.top” to complete the fraudulent survey. (Compl. ¶ 20.) At the end of the survey, 25 users were directed to a loading page to enter their cell phone number to receive their prize. 26 (Compl. ¶ 21.) By entering their cell phone number, the users would instead be signed up for 27 Plaintiff’s paid services. (Compl. ¶ 22.) Plaintiff asserts that the campaign caused Plaintiff to be 1 On August 29, 2019, Plaintiff filed an ex parte motion for early discovery, seeking the true 2 identities of Defendants from Dynadot LLC (“Dynadot”) and Cloudflare, Inc. (“Cloudflare”), 3 California corporations who provide domain name services. (Dkt. No. 5 at 2.) Plaintiff believes 4 that Defendants are Affiliates. (Id. at 3.) 5 On September 24, 2019, the Court denied Plaintiff’s motion without prejudice. (Dkt. No. 6 8.) The Court explained that in general, Federal Rule of Civil Procedure 26(d)(1) permits a court 7 to authorize early discovery if there is good cause. (Id. at 2.) Further:

8 [i]n determining whether there is good cause to allow expedited discovery to identify anonymous internet users named as doe 9 defendants, courts consider whether: (1) the plaintiff can identify the missing party with sufficient specificity such that the Court can 10 determine that defendant is a real person or entity who could be sued in federal court; (2) the plaintiff has identified all previous steps 11 taken to locate the elusive defendant; (3) the plaintiff’s suit against defendant could withstand a motion to dismiss; and (4) the plaintiff 12 has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of 13 process would be possible. 14 (Id. (internal quotation omitted).) The Court found, however, that Plaintiff had failed to explain 15 how Defendants would be subject to the jurisdiction of this Court, as well as failed to identify 16 what steps it had taken to locate Defendants. (Id. at 2-3.) 17 On October 25, 2019, Plaintiff filed a renewed ex parte motion for early discovery. (Dkt. 18 No. 10.) On November 22, 2019, the Court granted the motion. (Dkt. No. 13.) 19 On July 21, 2020, Plaintiff filed the instant motion for ex parte motion for early discovery. 20 Plaintiff explained that it had received the requested information from Dynadot, which identified 21 certain individuals and entities in Nevada and Arizona. (Pl.’s Mot. for Early Discovery at 5, Dkt. 22 No. 18; Shepard Decl. ¶¶ 4-6, Dkt. No. 18-1.) Plaintiff now seeks to propound discovery requests 23 related to the use and acquisition of the domain names to ensure that the identified individuals and 24 entities are the correct defendants. (Id. at 6.) Having reviewed the motion, the Court GRANTS 25 Plaintiff’s motion for early discovery. 26 First, Plaintiff has shown that Defendants are real persons or entities which may be sued in 27 this Court. Defendants contracted with Dynadot and Cloudflare to obtain domain name services; 1 for Early Discovery at 8-9; see also Dkt. No. 13 at 2-3.) The Ninth Circuit has found that “a party 2 has consented to personal jurisdiction when the party took some kind of affirmative act [such as] 3 accepting a forum selection clause . . . .” SEC v. Ross, 504 F.3d 1130, 1149 (9th Cir. 2007). 4 Moreover, “courts have found personal jurisdiction based on consent to forum selection clauses 5 contained in internet websites’ terms of use.” Twitch Interactive, Inc. v. Johnston, Case No. 16- 6 cv-3404-BLF, 2018 U.S. Dist. LEXIS 184300, at *10 (N.D. Cal. Jan. 22, 2018). 7 Second, Plaintiff has identified steps taken to identify Defendants. Plaintiff has obtained 8 early discovery from Dynadot to identify the individuals and entities associated with the domain 9 names. (Pl.’s Mot. for Early Discovery at 10-11.) Without further discovery, Plaintiff cannot be 10 certain that these individuals are responsible for the fraudulent scheme. (Id.) 11 Third, at least some of Plaintiff’s claims can survive a motion to dismiss. (See Dkt. No. 13 12 at 3.) For example, Plaintiff brings a breach of contract claim. Plaintiff’s contracts prohibit 13 Networks and Affiliates from making misleading or fraudulent statements as part of a marketing 14 campaign. (Compl. ¶ 32.) Defendants, however, made fraudulent representations in signing 15 individuals up for Plaintiff’s services, causing reputational harm and lost revenue. (Compl. ¶¶ 33- 16 36.) 17 Fourth, there is a reasonable likelihood that the discovery sought will allow Plaintiff to 18 identify Defendants, thus making service possible. Specifically, Plaintiffs can ensure that the 19 individuals identified by Dynadot are in fact Defendants. (Pl.’s Mot. for Early Discovery at 11- 20 12; Moreno Decl. ¶ 6, Dkt. No. 18-2.) 21 Accordingly, the Court finds that Plaintiff has made a showing of good cause, and 22 GRANTS Plaintiff’s motion for early discovery. Plaintiff may serve subpoenas on the individuals 23 and entities identified by Dynadot as being associated with the domain names 24 and . The subpoenas shall be for the limited purpose of identifying Doe 25 Defendants and Roe Corporations in this case. Any information disclosed to Plaintiff in response 26 to a subpoena may be used by Plaintiff solely for the purpose of litigating this lawsuit. This order 27 is without prejudice to the rights of these third parties to move to quash the subpoenas or to 1 respond to the subpoenas in any other manner permitted by law. 2 IT IS SO ORDERED. 3 || Dated: July 27, 2020 . 4 KANBIS\A. WESTMORE 5 United States Magistrate Judge 6 7 8 9 10 11 12

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