Rhapsody International Inc. v. Lester

Filing 52

ORDER by Judge Charles R. Breyer denying 48 Motion to Dismiss. (crblc1, COURT STAFF) (Filed on 4/21/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 13-05489 CRB

RHAPSODY INTERNATIONAL INC.,

ORDER DENYING DEFENDANTS’
THIRD MOTION TO DISMISS

Plaintiff,
v.
RYAN LESTER & NAPSTER.FM, LLC,

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Defendants.

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Defendant Ryan Lester filed his first Motion to Dismiss or, in the Alternative, to

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Transfer, on December 31, 2013. See generally dkt. 7. On January 24, 2014, Plaintiff filed

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its First Amended Complaint (“FAC”), which added Napster.fm, LLC as a defendant. See

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generally dkt. 23. Defendant Napster.fm, LLC filed its first Motion to Dismiss or, in the

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Alternative, to Transfer, on February 20, 2014. See generally dkt. 37. On February 24,

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2014, the Court denied both Defendants’ Motions. See Order (dkt. 40). On March 24, 2014,

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Defendants filed an answer to Plaintiff’s FAC. See Answer (dkt. 44). Now before the Court

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is Defendants’ Third Motion to Dismiss for untimely filing of the FAC. See generally dkt.

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48.

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The Court finds this matter suitable for resolution without oral argument pursuant to

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Civil Local Rule 7-1(b), and VACATES the hearing currently set for Friday, May 2, 2014.

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The Court DENIES Defendants’ Third Motion to Dismiss.

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Defendants argue that the Court should dismiss Plaintiff’s FAC because it is untimely

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under Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure, which states that a party may

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amend a pleading within twenty-one days of service of a Rule 12(b) motion as a matter of

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course. See Fed. R. Civ. P. 15(a)(1)(B). Defendant Lester filed his first motion to dismiss

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under Rule 12(b) on December 31, 2014. Plaintiff filed its FAC on January 24, 2014,

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twenty-four days after service of Defendant Lester’s Rule 12(b) motion. Plaintiff argues that

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it filed the FAC in a timely manner or, in the alternative, that Defendants suffered no

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prejudice or undue delay. The Court agrees with Plaintiff.

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Rule 6(d) of the Federal Rules of Civil Procedure allows for an additional three days

United States District Court
For the Northern District of California

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for service of process so long as such service is made under Rule 5(b)(2)(C), (D), (E), or (F).

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See Fed. R. Civ. P. 6(d). Rule 5(b)(2)(D) provides for service “by electronic means if the

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person consented in writing.” Fed. R. Civ. P. 5(b)(2)(D). In this District, all cases, except

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sealed cases, are designated for participation in the Court’s Electronic Case Filing (“ECF”)

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system, and each attorney of record is obligated to become an ECF user for access to the

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system before e-filing a document in an existing case in the District. See N.D. Cal. Civ. R.

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5-1(b) & (c). Defense counsel registered for ECF in order to serve Plaintiff, thus Defendants

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have consented to service by electronic means. Therefore, Rule 6(d) allowed Plaintiff an

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additional three days, for a total of twenty-four days from Defendant Lester’s service of his

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Rule 12(b) motion, to serve the FAC. Accordingly, Plaintiff timely filed the FAC on January

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24, 2014.

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Further, even if Rule 6(d) did not apply, and the proper procedure would have been

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for Plaintiff to seek leave to amend, Rule 15 provides that the Court “should freely give leave

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when justice so requires.” Fed. R. Civ. P. 15(a)(2). Defendants do not argue that they

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suffered any prejudice, and Plaintiff filed the FAC only three days after the 21-day period to

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amend a pleading as a matter of course under Rule 15(a)(1)(B). The parties have continued

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to litigate the case since Plaintiff filed its FAC, and, as Defendants did not raise any

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timeliness objections in their answer or previous briefs, the Court finds that it is preferable to

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proceed on the merits. As “the underlying purpose of Rule 15 [is] to facilitate decision on
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the merits, rather than on the pleadings or technicalities,” the Court declines to dismiss

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Plaintiff’s FAC on this basis. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en

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banc) (internal quotation marks and alterations omitted). For the foregoing reasons, the

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Court DENIES Defendants’ Third Motion to Dismiss.

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IT IS SO ORDERED.

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Dated: April 21, 2014
CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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