Free Order on Ex Parte Application - District Court of California - California

Case 3:07-cv-04878-MMC

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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, ARISTA RECORDS LLC; UMG RECORDINGS, INC.; and SONY BMG MUSIC ENTERTAINMENT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

ARISTA RECORDS LLC, a Delaware limited liability company; UMG RECORDINGS, INC., a Delaware corporation; and SONY BMG MUSIC ENTERTAINMENT, a Delaware general partnership, Plaintiffs, v. JOHN DOE, Defendant.

CASE NO. :07-CV-04878-MMC Honorable Maxine M. Chesney EX PARTE APPLICATION TO EXTEND TIME TO SERVE DEFENDANT AND [PROPOSED] ORDER

EX PARTE APPLICATION TO EXTEND TIME TO SERVE DEFENDANT AND [PROPOSED] ORDER Case No. :07-cv-04878-MMC
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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 believe they have discovered the identity of the Doe defendant in this case and have attempted to contact her to resolve the dispute; however, in the event the dispute is not resolved, Plaintiffs do not have sufficient time to amend the Complaint and effectuate service before the current service deadline expires. In support of their request, Plaintiffs state as follows: 1. The current deadline for service of process is January 18, 2008. The initial

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 has not responded to Plaintiffs, although this may be due in part to the university holiday.
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case management conference is set for April 4, 2008, at 10:30 a.m., as continued by the Court's Order of December 28, 2007 upon Plaintiffs' request. 2. Plaintiffs filed their Complaint for Copyright Infringement against Defendant

John Doe ("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, California State University, Monterey Bay. 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 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 served upon the ISP along with a Rule 45 subpoena. On November 30, 2007, the ISP responded to Plaintiffs' subpoena, identifying Hayley Azevedo and providing Plaintiffs with contact information including Ms. Azevedo's telephone number and address. 5. After receiving this information from the ISP, Plaintiffs sent a letter to Ms.

Azevedo on December 18, 2007 notifying her of their claims for copyright infringement and encouraging her to make contact to attempt to amicably resolve this matter. To date, Ms. Azevedo

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6.

Plaintiffs wish to give Ms. Azevedo a reasonable period of time to respond

and resolve this case before naming her in the suit and should she fail to do so are prepared to amend the complaint to name her as an individual defendant. 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 Ms. Azevedo of

their claims and resolve the case before naming her in the lawsuit 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). Moreover, unlike a traditional case in which the defendant is known by name and efforts to serve can begin immediately after filing

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the complaint, in this case Plaintiffs first had to obtain the identity of the defendant through the subpoena to the ISP. This Court has discretion to 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). 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 the Defendant with a copy of this request and any Order

concerning this request when service of process occurs.

Dated: January 17, 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 January 22, 2008 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. plaintiffs shall, no later than April 17, 2008, amend their complaint to identify Defendant and serve the Summons and Amended Complaint on Defendant.

By: _____________________________ Honorable Maxine M. Chesney United States District Judge

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