Free Order - District Court of California - California

Case 5:07-cv-04875-JF

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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, LAFACE RECORDS LLC; CAPITOL RECORDS, INC.; WARNER BROS. RECORDS INC.; UMG RECORDINGS, INC.; BMG MUSIC; and ARISTA RECORDS LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

LAFACE RECORDS LLC, a Delaware limited liability company; CAPITOL RECORDS, INC., a Delaware corporation; WARNER BROS. RECORDS INC., a Delaware corporation; UMG RECORDINGS, INC., a Delaware corporation; BMG MUSIC, a New York general partnership; and ARISTA RECORDS LLC, a Delaware limited liability company, Plaintiffs,

CASE NO. 5:07-CV-04875-JF Honorable Jeremy Fogel EX PARTE APPLICATION TO CONTINUE CASE MANAGEMENT CONFERENCE AND EXTEND TIME TO SERVE ---------------DEFENDANT AND [PROPOSED] ORDER

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Ex Parte Application to Continue CMC and Extend Time to Serve Defendant and [Proposed] Order Case No. 5:07-cv-04875-JF
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v. JOHN DOE, Defendant.

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Plaintiffs respectfully request that the Court continue the case management conference currently set for February 15, 2008, at 10:30 a.m. to May 16, 2008. Plaintiffs further 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 discovered the identity of the Doe defendant in this case and the parties have reached a provisional settlement; Plaintiffs thus seek additional time to amend the complaint and effectuate service in the event the settlement fails. In support of their request, Plaintiffs state as follows:

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. Upon receipt of this information from the ISP, Plaintiffs sent a letter to Defendant on December 18, 2007 notifying her of their claims for copyright infringement and encouraging her to
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1.

The initial case management conference is set for February 15, 2008, at 10:30 a.m., as

previously continued by the Court pursuant to the Clerk's Notice filed on December 19, 2007. The current deadline for service of process is January 18, 2008. 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 2,

2007, which was promptly served upon the ISP along with a Rule 45 subpoena. On November 30, 2007, the ISP responded to Plaintiffs' subpoena, providing Plaintiffs with identifying information including Defendant's name, telephone number, and address.

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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 31, 2007, which have not yet been returned signed by Defendant. 6. If Defendant returns the signed settlement documents by February 15, 2008 or shortly

thereafter, Plaintiffs will file appropriate dispositional documents with the Court. 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 that the case

management conference be continued to May 16, 2008, or such other date as conveniences the 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Court. Plaintiffs also request an additional 90 days to effectuate service. 8. Plaintiffs submit that their efforts to give written notice to Defendant of their claims

and subsequent efforts to 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 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.

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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

---------------[PROPOSED] ORDER Good cause having been shown: IT IS ORDERED that the case management conference currently set for February 15, 2008, at 10:30 a.m. be continued to May 16, 2008. IT IS FURTHER 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.

1/23/08 Dated: ___________________

By: _____________________________ Honorable Jeremy Fogel United States District Judge

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