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

Case 4:07-cv-04843-CW

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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, UMG RECORDINGS, INC.; LAFACE RECORDS LLC; BMG MUSIC; SONY BMG MUSIC ENTERTAINMENT; and ARISTA RECORDS LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION UMG RECORDINGS, INC., a Delaware corporation; LAFACE RECORDS LLC, a Delaware limited liability company; BMG MUSIC, a New York general partnership; SONY BMG MUSIC ENTERTAINMENT, a Delaware general partnership; and ARISTA RECORDS LLC, a Delaware limited liability company, Plaintiffs, v. JOHN DOE, Defendant. CASE NO. 4:07-CV-04843-CW Honorable Claudia Wilken EX PARTE APPLICATION TO CONTINUE CASE MANAGEMENT CONFERENCE AND EXTEND TIME TO SERVE DEFENDANT AND [PROPOSED] ORDER

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Plaintiffs respectfully request that the Court continue the case management conference currently set for January 8, 2008 at 2:00 p.m. to April 8, 2008. Plaintiffs further request, pursuant to the Federal Rules of Civil Procedure, Rules 4(m) and 6(b)(1), that Plaintiffs' time to serve the Summons and Complaint on Defendant be extended from January 18, 2008 to May 16, 2008. As set forth in greater detail below, Plaintiffs do not yet know Defendant's true identity and will be unable to identify Defendant unless and until the Court grants Plaintiffs' Ex Parte Application for Leave to Take Immediate Discovery, filed on September 20, 2007. Plaintiffs filed the 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 ­ here, California State University, Monterey Bay ("Cal State Monterey Bay"). Accordingly, also on September 20, 2007, Plaintiffs filed their Ex Parte Application for Leave to Take Immediate Discovery, seeking the Court's permission to serve a Rule 45 subpoena on Cal State Monterey Bay so that Plaintiffs could discover information sufficient to identify Defendant. The Court has not yet ruled on Plaintiffs' Ex Parte Application for Leave to Take Immediate Discovery. If the Court grants Plaintiffs' Ex Parte Application for Leave to Take Immediate Discovery, Plaintiffs will attempt to determine Defendant's identity by serving a Rule 45 subpoena on Cal State Monterey Bay. However, until that time, Plaintiffs cannot identify and serve Defendant or otherwise advance this litigation. Given the foregoing circumstances, a case management conference is unnecessary at this time. Plaintiffs therefore respectfully request that the Court continue the case management conference currently set for January 8, 2008, at 2:00 p.m. to April 8, 2008. Furthermore, the original time period for Plaintiffs to serve the Summons and Complaint on Defendant will expire on January 18, 2008. Unless and until Plaintiffs learn Defendant's identity, Plaintiffs will be unable to amend the complaint to name Defendant, or serve the amended complaint on Defendant. Even if the Court were to grant Plaintiffs' Ex Parte Application for Leave to Take Immediate Discovery in the near future and Plaintiffs were then to immediately serve a subpoena on
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Cal State Monterey Bay, it is unlikely that Plaintiffs would learn Defendant's identity before the original service deadline passes. Moreover, Plaintiffs would be left with little or no time to contact Defendant and attempt to resolve this matter or to amend the complaint to name Defendant and attempt to serve the amended complaint. Therefore, Plaintiffs respectfully request that the time to serve the Summons and Complaint on Defendant be extended to May 16, 2008. Dated: December 20, 2007 HOLME ROBERTS & OWEN LLP

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

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ORDER Good cause having been shown: IT IS ORDERED that the case management conference currently set for January 8, 2008, at 2:00 p.m. be continued to April 8, 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 May 16, 2008.

12/21/07 Dated: ___________________

By: _____________________________ Honorable Claudia Wilken United States District Judge