First Time Videos, LLC v. Unknown

Filing 22

ORDER signed by Judge Garland E. Burrell, Jr. on 08/14/12 ORDERING that the Initial Scheduling Conference is CONTINUED to 10/29/12 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell, Jr. A further status report shall be filed 14 days prior to the Status Conference, in which plaintiff shall address its efforts to prosecute this action. If plaintiff fails to take sufficient steps to identify John Doe prior to the 10/29/12 Conference, plaintiff shall SHOW CAUSE in its status report why this action should not be dismissed for failure of prosecution. This action may be dismissed with prejudice under FRCP 41(b) if plaintiff fails to respond to this Order. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FIRST TIME VIDEOS, LLC,
Plaintiff,

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v.

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JOHN DOE,

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Defendant.
________________________________

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2:11-cv-03478-GEB-EFB
ORDER CONTINUING STATUS
(PRETRIAL SCHEDULING)
CONFERENCE

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Plaintiff states in its Status Report filed August 8, 2012, in
relevant part as follows:
Plaintiff is unable to serve the unidentified
John Doe at this time. On December 30, 2011,
Plaintiff filed its Complaint. (Doc. No. 1.) On
January 6, 2011, Plaintiff filed its Amended
Complaint. (Doc. No. 6.) Attached as Exhibit A to
the Amended Complaint were a list of Internet
Protocol addresses associated with John Doe and his
co-conspirators. (Doc. No. 6-1.) Per the Amended
Complaint, Plaintiff’s agents observed these IP
addresses
unlawfully
reproducing
Plaintiff’s
copyrighted work via the BitTorrent protocol. As
further stated, “Plaintiff cannot ascertain the
identities of John Doe or his co-conspirators
without information from their respective Internet
Service Providers (‘ISPs’).” (Doc. No. 6 at ¶ 4.)
Due to this need for information, on January
12, 2012, Plaintiff filed its Ex Parte Application
for Leave to Take Expedited Discovery requesting
the
ability
to
discover[]
the
identifying
information of the IP address holders from the
relevant ISPs. (Doc. No. 7.) On January 19, 2012,
the Court issued its Order granting in part and
denying in part Plaintiff’s Application. (Doc. No.
9, “January 19 Order.”) While not allowing
Plaintiff to serve subpoenas on ISPs to identify
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the coconspirators—thus eliminating the possibility
of naming and/or serving those individuals in this
case—the Court did allow Plaintiff to obtain the
identifying information of the account holder whose
IP address was used by John Doe to infringe on
Plaintiff’s
copyrighted
works.
(Doc. No. 9.)
. . . .

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On April 4, 2012, after discovering that the
Court’s January 19 Order erroneously identified the
Internet Protocol relating to John Doe, Plaintiff
filed its Motion for Administrative Relief for an
Order Correcting a Clerical Error Under FRCP Rule
60(a) to allow Plaintiff to serve a subpoena on
John Doe’s Internet Service Provider, Comcast Cable
Communications (“Comcast”) to identify him (Doc.
No. 16). On April 16, 2012, the Court corrected the
Internet Protocol address (Doc. No. 18, “April 16
Order”). Subsequently, Plaintiff served a copy of
the April 16 Order and the relevant subpoena on
Comcast. . . .

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Most recently, Plaintiff received notice from
Comcast that, in light of the delay described
above, the subscriber information related to John
Doe was no longer in their records. As of now,
therefore, that time-sensitive information no
longer exists. Currently, Plaintiff is exploring
its options in this case in light of Comcast’s
recent response.

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(Status Report 1:33-3:6.)

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These representations reveal this case is not ready to be

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scheduled.

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scheduled for hearing on August 20, 2012, is continued to October 29,

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2012, at 9:00 a.m. A further status report shall be filed no later than

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fourteen (14) days prior to the Status Conference, in which Plaintiff

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shall address its efforts to prosecute this action.

Therefore,

the

Status

(Pretrial

Scheduling)

Conference

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Further, if Plaintiff fails to take sufficient steps to

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identify John Doe prior to the October 29, 2012 Status Conference,

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Plaintiff shall show cause in its status report why this action should

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not

be

dismissed

for

failure

of

prosecution.

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This

action

may

be

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dismissed with prejudice under Federal Rule of Civil Procedure 41(b) if

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Plaintiff fails to respond to this Order.

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IT IS SO ORDERED.
Dated:

August 14, 2012

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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