Malibu Media, LLC v. John Doe subscriber assigned IP address 98.210.99.78

Filing 41

ORDER GRANTING MOTION TO DISMISS by Hon. William Alsup granting 22 Motion to Dismiss.(whalc1, COURT STAFF) (Filed on 6/20/2016)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 MALIBU MEDIA, LLC, 11 For the Northern District of California United States District Court 10 12 13 14 15 No. C 15-04443 WHA Plaintiff, v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 98.210.99.78, ORDER GRANTING MOTION TO DISMISS Defendant. / 16 17 18 INTRODUCTION In this copyright infringement action involving online piracy of pornographic films, 19 defendant moves to dismiss the complaint for insufficient service of process. For the reasons 20 stated below, defendant’s motion is GRANTED. 21 22 STATEMENT Since September 2015, plaintiff Malibu Media, LLC has filed 178 copyright 23 infringement actions in this district. The complaints in all such actions are virtually identical. 24 In this action, Malibu Media accuses defendant, an Internet subscriber assigned IP address 25 98.210.99.78 by his Internet service provider, Comcast Communications, Inc., of copying and 26 distributing forty-two of Malibu Media’s copyrighted pornographic films between May 2014 27 and July 2015. As with each of Malibu Media’s actions, it accuses defendant of using a digital 28 file-sharing platform known as BitTorrent to download, copy, and distribute these works. 1 When it commenced this action on September 27, 2015, Malibu Media could only 2 identify defendant by his Internet Protocol address, which is a numerical identifier assigned to 3 each Internet service subscriber by Comcast. In November 2015, Malibu Media sought leave to 4 serve a third-party subpoena on Comcast for defendant’s name and address for the purpose of 5 effectuating service, which leave was granted, subject to a protective order requiring Malibu 6 Media to file any and all documents including defendant’s identifying information under seal, 7 with all such information redacted on the public docket. 8 Malibu Media issued the subpoena two days later. In December, defendant retained 9 counsel, who emailed Malibu Media to advise of the representation, although Malibu Media had not yet received Comcast’s response. 11 For the Northern District of California United States District Court 10 On January 6, Malibu Media received Comcast’s response. It filed a motion for leave to 12 file an amended complaint (identifying defendant by name) under seal on January 22, which 13 leave was granted on January 26 (Dkt. Nos. 15, 17). The deadline to effect service pursuant to 14 Rule 4(m) was January 25, but the order granting the sealing motion extended that deadline to 15 February 6. Malibu Media’s process server served defendant on February 7. Malibu Media 16 never requested a further extension. 17 18 Defendant now moves to dismiss the action for insufficient service of process. This order follows full briefing and oral argument. 19 ANALYSIS 20 21 Prior to its amendment in December 2015, Rule 4(m) set forth the time limit for service of process as follows: 22 If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1).* 23 24 25 26 27 28 * On December 1, 2015, Rule 4(m) was amended to set the deadline as 90 days after the complaint is filed. This order applies Rule 4(m) as it stood on the date of the filing of the complaint. 2 1 Malibu Media concedes that it failed to timely serve defendant by the extended deadline 2 of February 6 and failed to request a further extension. It further acknowledges that, due to a 3 scrivener’s error, the return of service erroneously stated that service occurred at 4:23 a.m., 4 rather than 4:23 p.m. It argues that good cause exists to either forgive the untimely service or to 5 permit Malibu Media another opportunity to perfect service. 6 It took Malibu Media eighteen days from receiving defendant’s identifying information 7 before it moved to file its amended complaint under seal, and it blames defense counsel for that 8 delay. Malibu Media contends in its brief (but not in any sworn statement) that its counsel 9 asked defense counsel “on a couple occasions” beginning on January 6 (after learning defendant’s identity) if defense counsel would accept service for defendant and further contends 11 For the Northern District of California United States District Court 10 that defense counsel’s failure to respond until January 21 led to these delays (Pl.’s Opp. at 3). 12 Defense counsel, in a sworn declaration, avers that only one such communique occurred — on 13 January 20. Defense counsel responded on January 21 that they were not authorized to accept 14 service (Ranallo Decl. ¶¶ 6–7). 15 Malibu Media’s unsworn claims that defendant dodged service also fall flat. Malibu 16 Media notes that on one occasion, defendant’s wife answered the door, but the process server 17 declined to serve defendant via his wife, allegedly to “avoid service issues” (Pl.’s Opp. at 4). 18 The remaining descriptions, involving attempts when no one was home or when no one 19 answered the door, are vague and unpersuasive. (For example, there is no indication that the 20 process server ever attempted service anywhere other than defendant’s home.) 21 Counsel’s lack of diligence pervades even the opposition to this motion. Malibu Media 22 notes that it “can obtain” an affidavit from its process server confirming that defendant was 23 dodging service, but it elected to rest only on unsworn attorney argument in opposing this 24 motion. Similarly, it noted that it will submit an amended return of service correcting the 25 scrivener’s error on the return of service. Three months after filing its opposition, Malibu 26 Media still has not done so (Pl.’s Opp. at 4 n.1, 5). 27 Malibu Media must bear the cost of its complete lack of diligence. Malibu Media cites 28 Electric Specialty Co. v. Road & Ranch Suppl, Inc., 967 F.2d 309, 314 (9th Cir. 1992), for the 3 1 proposition that Rule 4(m) is not intended to create “unnecessary technicality in connection 2 with service of process,” but is instead “designed to provide maximum freedom and flexibility 3 in the procedures for giving all defendants notice of commencement of the action . . . .” 4 Although that flexibility is important, Rule 4(m) also serves the function of requiring diligence 5 on the part of plaintiff’s counsel. To hold otherwise would swallow the requirement of good 6 cause. See Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985). 7 In United States v. 2,164 Watches, More or Less Bearing a Registered Trademark of 8 Guess?, Inc., 366 F.3d 767, 773 (9th Cir. 2004), our court of appeals vacated a district court’s 9 decision to dismiss an action case for untimely service. There, the district court was held to have abused its discretion by failing to consider as part of its good cause analysis whether the 11 For the Northern District of California United States District Court 10 defendant suffered any prejudice due to untimely service or whether the plaintiff would suffer 12 any prejudice if the case were to be dismissed (such as whether the statute of limitations would 13 expire). Nevertheless, that decision acknowledged that “[l]ack of prejudice by itself is not 14 sufficient to establish good cause.” Id. at 773, n.2. 15 Here, Malibu Media would suffer minimal prejudice — it would simply need to re-file 16 the case and pay a new filing fee. Indeed, Malibu Media does not even argue that it would 17 suffer any prejudice and notes that “the Court has the discretion to grant Defendant’s requested 18 relief” (Pl.’s Opp. at 2). On the other side of the equation, our defendant would suffer moderate 19 prejudice, in that allowing this action to proceed would reward Malibu Media’s counsel’s lack 20 of diligence, both in effecting service and in opposing this very motion, and it would encourage 21 that diligence as the case progresses. Such a result is especially troubling given that counsel’s 22 lack of diligence is a chronic issue throughout Malibu Media’s numerous cases in this district. 23 Thus, this order holds that the proper remedy for Malibu Media’s complete failure to show good 24 cause for its delay is to dismiss this action without prejudice. 25 26 27 28 4 1 2 3 CONCLUSION For the reasons stated above, defendant’s motion to dismiss is GRANTED. This action is DISMISSED WITHOUT PREJUDICE. 4 5 IT IS SO ORDERED. 6 7 Dated: June 20, 2016. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?