Free 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 [PROPOSED] ORDER

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Plaintiffs respectfully request that the Court continue the case management conference currently set for April 8, 2008, at 2:00 p.m. to July 15, 2008. As further explained below, Plaintiffs have not yet discovered the true identity of the Doe defendant in this case, so there is no known Defendant with whom to confer at this time. In support of their request, Plaintiffs state as follows: 1. 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 by Defendant's Internet Service Provider ­ here, California State University, Monterey Bay ("Cal State Monterey Bay"). 2. 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. 3. While Plaintiffs' Ex Parte Application for Leave to Take Immediate Discovery was

pending, the Court issued a December 21, 2007 Order granting Plaintiffs' previous request for a continuance of the case management conference from the original date of January 8, 2008 to the current date of April 8, 2008. 4. The Court entered an Order for Leave to Take Immediate Discovery on January 10,

2008, which was promptly served on Cal State Monterey Bay on January 17, 2008 along with a Rule 45 subpoena seeking information sufficient to identify the Doe defendant. 5. After Plaintiffs granted a requested extension of the subpoena response date, Cal

State Monterey Bay only recently responded to Plaintiffs' subpoena on March 18, 2008. However, the response was incomplete. Plaintiffs have since followed up with Cal State Monterey Bay, and the University has agreed to provide a further response to the subpoena on April 4, 2008. 6. If Plaintiffs are able to identify Defendant, Plaintiffs will attempt to contact

Defendant and resolve the dispute. If the dispute cannot be resolved, Plaintiffs plan to amend the complaint to name the Doe defendant individually and proceed to serve process upon him or her. However, Plaintiffs cannot move this case forward until they first discover Defendant's true identity.
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7.

Given the foregoing circumstances, and because there is no known defendant with

whom to confer, a case management conference is unnecessary at this time. Plaintiffs therefore respectfully request that the Court continue the case management conference currently set for April 8, 2008, at 2:00 p.m. to July 15, 2008, or such other date as conveniences the Court. 8. Plaintiffs will provide Defendant with a copy of this request and any Order

concerning this request when service of process occurs.

Dated: March 21, 2008

HOLME ROBERTS & OWEN LLP

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

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[PROPOSED] ORDER Good cause having been shown: IT IS ORDERED that the case management conference currently set for April 8, 2008, at 2:00 p.m. be continued to July 15, 2008.

Dated: ___________________

By: _____________________________ Honorable Claudia Wilken United States District Judge