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

Case 3:07-cv-04850-PJH

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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.; SONY BMG MUSIC ENTERTAINMENT; and INTERSCOPE RECORDS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION UMG RECORDINGS, INC., a Delaware corporation; SONY BMG MUSIC ENTERTAINMENT, a Delaware general partnership; and INTERSCOPE RECORDS, a California general partnership, Plaintiffs, v. JOHN DOE, Defendant. CASE NO. 3:07-CV-04850-PJH Honorable Phyllis J. Hamilton PLAINTIFFS' EX PARTE APPLICATION FOR EXTENSION OF TIME TO EFFECTUATE SERVICE AND [PROPOSED] ORDER

Ex Parte Application for Extension of Time to Effectuate Service and [Proposed] Order Case No. 3:07-cv-04850-PJH
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Pursuant to Rules 4(m) and 6(b)(1)(A) of the Federal Rules of Civil Procedure, Plaintiffs respectfully request the Court for an additional 90 days to serve Defendant with the Summons and Complaint. As further explained below, while Plaintiffs believe they have discovered the "John Doe" defendant's true identity, they have so far refrained from filing a First Amended Complaint naming her as an individual defendant to allow time for settlement negotiations, and Plaintiffs hereby request additional time to effectuate service in the event the First Amended Complaint is filed. In support of their request, Plaintiffs state as follows: 1. The deadline for service of process on Defendant is January 18, 2008. The

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initial case management conference is scheduled for April 3, 2008, as continued by the Court's Order of December 21, 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. In order to determine Defendant's true name and identity, Plaintiffs filed their Ex Parte Application for Leave to Take Immediate Discovery on June 13, 2007, requesting that the Court enter an Order allowing Plaintiffs to serve a Rule 45 subpoena on the ISP. 3. The Court entered an Order for Leave to take Immediate Discovery on

October 1, 2007 which was promptly served upon the ISP along with a Rule 45 subpoena. 4. On November 30, 2007, the ISP responded to Plaintiffs' subpoena, providing

Plaintiffs with identifying information including Defendant's name, telephone number, and address. 5. Upon receipt of this information from the ISP, Plaintiffs sent a letter to

Defendant notifying her of their claims for copyright infringement and encouraging her to make contact to attempt to amicably resolve this matter.

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6.

In response, Defendant contacted Plaintiffs and there have been discussions

concerning settlement. To date no settlement agreement has been reached.. . 7. Given the circumstances of this case, Plaintiffs respectfully request an

additional 90 days to effectuate service. Plaintiffs wish to give Defendant a reasonable period of time to conclude negotiations aimed at resolving this case and should they fail to do so are prepared to amend the complaint to name her as an individual defendant. 8. Plaintiffs submit that the efforts to give written notice to Defendant of their

claim and subsequent efforts to resolve the case without further litigation constitute "good cause" under Rule 4(m) 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). This

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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). Plaintiffs acted in good faith to try to settle this matter with Defendant without potentially damaging her credit by naming her in the suit as well as attempting to avoid the cost of further litigation for both parties. 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. 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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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 11, 2007

HOLME ROBERTS & OWEN LLP

By: _________/s/ Matthew Franklin Jaksa___ MATTHEW FRANKLIN JAKSA Attorney for Plaintiffs UMG RECORDINGS, INC.; SONY BMG MUSIC ENTERTAINMENT; and INTERSCOPE RECORDS

ORDER Good cause having been shown: IT IS ORDERED that, pursuant to the Federal Rules of Civil Procedure, Rules 4(m) and 6(b), Plaintiffs' time to serve the summons and complaint on Defendant is hereby extended to April 17, 2008.

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Honorable Phyllis J. Hamilton United States District Judge n lto J. Hami Phyllis Judge

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January 14, 2008 Dated: ___________________

D RDERE S SO O By: _____________________________ IT I
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