Free Ex Parte Application - District Court of California - California

Case 4:07-cv-04854-WDB

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Matthew Franklin Jaksa (CA State Bar No. 248072) HOLME ROBERTS & OWEN LLP 560 Mission Street, 25th Floor San Francisco, CA 94105-2994 Telephone: (415) 268-2000 Facsimile: (415) 268-1999 Email: [email protected] Attorneys for Plaintiffs, SONY BMG MUSIC ENTERTAINMENT; ARISTA RECORDS LLC; INTERSCOPE RECORDS; BMG MUSIC; UMG RECORDINGS, INC.; and WARNER BROS. RECORDS INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION SONY BMG MUSIC ENTERTAINMENT, a Delaware general partnership; ARISTA RECORDS LLC, a Delaware limited liability company; INTERSCOPE RECORDS, a California general partnership; BMG MUSIC, a New York general partnership; UMG RECORDINGS, INC., a Delaware corporation; and WARNER BROS. RECORDS INC., a Delaware corporation, Plaintiffs, v. CASE NO. C 07-04854 WDB The Honorable Wayne D. Brazil EX PARTE APPLICATION TO EXTEND TIME TO SERVE DEFENDANT AND [PROPOSED] ORDER

JOHN DOE #8, Defendant.

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Case 4:07-cv-04854-WDB

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Plaintiffs respectfully request, pursuant to the Federal Rules of Civil Procedure, Rules 4(m) and 6(b)(1)(A), that the Court grant an additional 90 days to serve Defendant with the Summons and Complaint. As further explained below, Plaintiffs have identified the Doe defendant in this case and the parties have reached a provisional settlement; Plaintiffs thus seek additional time to effectuate service in the event the settlement fails. In support of their request, Plaintiffs state as follows: 1. The current deadline for service of process is January 18, 2008. The initial

case management conference is set for April 3, 2008, at 4:00 p.m., as continued by the Court's Order of December 20, 2007 upon Plaintiffs' request. 2. Plaintiffs filed their Complaint for Copyright Infringement against Defendant

John Doe #8 ("Defendant") on September 20, 2007. Plaintiffs did not have sufficient identifying information to name Defendant in the Complaint, but were able to identify Defendant by the Internet Protocol address assigned to Defendant by Defendant's Internet Service Provider ("ISP") ­ here, San Francisco State University. 3. In order to determine Defendant's true name and identity, Plaintiffs filed their

Ex Parte Application for Leave to Take Immediate Discovery on September 20, 2007, requesting 16 17 18 19 20 21 22 23 24 25 26 27 28
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that the Court enter an Order allowing Plaintiffs to serve a Rule 45 subpoena on the ISP. 4. The Court entered an Order for Leave to take Immediate Discovery on

October 1, 2007, which was promptly served upon the ISP along with a Rule 45 subpoena. On November 16, 2007, the ISP responded to Plaintiffs' subpoena, providing Plaintiffs with identifying information including Defendant's name, telephone number, and address. 5. Upon receipt of this information from the ISP, Plaintiffs sent a letter to

Defendant notifying her of their claims for copyright infringement and encouraging her to make contact to attempt to amicably resolve this matter. In response to that notification, settlement discussions took place and Plaintiffs believe that a settlement has been reached. Settlement documents were sent to Defendant on December 19, 2007, which have not yet been returned signed by Defendant.

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6.

If Defendant returns the signed settlement documents by February 1, 2008 or

shortly thereafter, Plaintiffs will file appropriate dispositional documents. If she does not, Plaintiffs plan to file a First Amended Complaint naming her individually as the defendant in this case, and then proceed to serve process upon her. 7. Given the circumstances of this case, Plaintiffs respectfully request an

additional 90 days to effectuate service. 8. Plaintiffs submit that their efforts to give written notice to Defendant of their

claim and subsequent efforts to resolve the case without further litigation constitute good cause for any delay in perfecting service. See Ritts v. Dealers Alliance Credit Corp., 989 F. Supp. 1475, 1479 (N.D. Ga. 1997) (stating good cause standard for service extensions). This Court has discretion to

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enlarge the time to serve even where there is no good cause shown. Henderson v. United States, 517 U.S. 654, 658 n. 5 (1996). Here, Plaintiffs acted in good faith to try to settle this matter with Defendant without potentially damaging her credit by naming her in the suit as well as attempting to avoid the cost of further litigation for both parties. Moreover, unlike a traditional case in which the defendant is known by name and efforts to serve can begin immediately after filing the complaint, in this case Plaintiffs first had to obtain the identity of the defendant through the subpoena to the ISP. 9. Because the copyright infringements here occurred in 2007, the three-year

limitations period for these claims has not expired. See 17 U.S.C. § 507(b) (2000). There can thus be no prejudice to the Defendant from any delay in serving the Complaint. 10. Plaintiffs will provide Defendant with a copy of this request and any Order

concerning this request when service of process occurs. Dated: January 16, 2008 HOLME ROBERTS & OWEN LLP

By: _________/s/ Matthew Franklin Jaksa___ MATTHEW FRANKLIN JAKSA Attorney for Plaintiffs

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: ___________________ Good cause having been shown:

ORDER

IT IS ORDERED that, pursuant to the Federal Rules of Civil Procedure, Rules 4(m) and 6(b)(1), Plaintiffs' time to serve the Summons and Complaint on Defendant be extended to April 17, 2008.

By: _____________________________ Honorable Wayne D. Brazil United States Magistrate Judge

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