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

Case 3:07-cv-04852-VRW

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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.; CAPITOL RECORDS, INC.; BMG MUSIC; ATLANTIC RECORDING CORPORATION; ELEKTRA ENTERTAINMENT GROUP INC.; SONY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION UMG RECORDINGS, INC., a Delaware corporation; CAPITOL RECORDS, INC., a Delaware corporation; BMG MUSIC, a New York general partnership; ATLANTIC RECORDING CORPORATION, a Delaware corporation; ELEKTRA ENTERTAINMENT GROUP INC., a Delaware corporation; SONY BMG MUSIC ENTERTAINMENT, a Delaware general partnership; and INTERSCOPE RECORDS, a California general partnership, Plaintiffs, v. MEILING FELICITAS JOHANNA WACHHOLZ-YEE, Defendant. CASE NO. 3:07-CV-04852-VRW Honorable Vaughn R. Walker EX PARTE APPLICATION TO EXTEND TIME TO SERVE DEFENDANT AND [PROPOSED] ORDER

EX PARTE APPLICATION TO TO EXTEND TIME TO SERVE DEFENDANT AND [PROPOSED] ORDER Case No. 3:07-cv-04852-VRW
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Case 3:07-cv-04852-VRW

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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 Defendant is out of the country and thus have been unable to personally serve her with process. In support of their request, Plaintiffs state as follows: 1. Plaintiffs filed their initial Complaint for Copyright Infringement against a

John Doe defendant on September 20, 2007. In order to obtain information sufficient to identify the Doe defendant, Plaintiffs also filed their Ex Parte Application for Leave to Take Immediate Discovery, seeking the Court's permission to serve a Rule 45 subpoena on Defendant's Internet Service Provider ("ISP"). On October 1, 2007, the Court issued its Order for Leave to Take Immediate Discovery, which was served on the ISP along with a Rule 45 subpoena. On November 16, 2007, the ISP responded to Plaintiffs' subpoena, identifying the Defendant, Meiling Felicitas Johanna Wachholz-Yee. 2. After the ISP identified Ms. Wachholz-Yee, Plaintiffs sent her a letter

notifying her of their claims for copyright infringement and encouraging her to make contact to 16 17 18 19 20 21 22 23 24 25 26 27 28 attempt to amicably resolve this matter. Although settlement discussions later took place, the parties did not reach a settlement. 3. Accordingly, on February 11, 2008, Plaintiffs filed their First Amended

Complaint naming Ms. Wachholz-Yee individually as Defendant. 4. Plaintiffs then engaged a process server and unsuccessfully attempted

personal service on Defendant. However, Plaintiffs are informed and believe that Defendant has been residing in Germany, and is still residing there. Plaintiffs will therefore attempt alternate forms of service. 5. The current deadline for service of process is April 17, 2008. While this case

was still in the Doe stage, the Court granted Plaintiffs' previous request for a 90-day extension of the service deadline by its Order of January 23, 2008. Given the circumstances of this case, Plaintiffs respectfully request an additional 90 days to effectuate service.
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6.

Plaintiffs submit that their initial efforts to contact Ms. Wachholz-Yee and

resolve this case before naming her individually in the lawsuit, as well as their subsequent attempt to personally serve her with the First Amended Complaint, constitute good cause under Rule 4 for an extension of time for service. See Gambino v. Village of Oakbrook, 164 F.R.D. 271, 275 (M.D. Fla. 1995) (finding good cause to expand the time limit for service where plaintiff made a "reasonable effort" to serve defendant); see also Matasareanu v. Williams, 183 F.R.D. 242, 245-46 (C.D. Cal. 1998) (stating good cause standard for service extensions). In addition, unlike a traditional case where the defendant is known by name and service attempts can begin immediately after the complaint is filed, in this case Plaintiffs first had to obtain Defendant's identity through the subpoena to the ISP. This Court has discretion to enlarge the time to serve even where there is no good cause

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shown. Henderson v. United States, 517 U.S. 654, 658 n. 5 (1996). 7. 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 Defendant from any delay in serving the Complaint. 8. Plaintiffs will provide Defendant with a copy of this request and any Order

concerning this request when service of process occurs.

Dated: April 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 April 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 July 16, 2008.

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