Malibu Media, LLC v. JOHN DOE subscriber assigned IP address

Filing 10

ORDER RE PLAINTIFF'S PROPOSED PROCEDURE FOR EFFECTUATING SERVICE. Signed by Judge William Alsup on 2/23/16. (dlS, COURT STAFF) (Filed on 3/4/2016)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 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 In re Malibu Media Copyright Infringement Litigation No. C 15-04112 WHA No. C 15-04159 WHA No. C 15-04170 WHA No. C 15-04287 WHA No. C 15-04289 WHA No. C 15-04291 WHA No. C 15-04441 WHA No. C 15-05383 WHA No. C 15-05384 WHA No. C 15-05385 WHA No. C 15-05386 WHA No. C 15-05387 WHA No. C 15-05388 WHA No. C 15-05389 WHA No. C 15-05391 WHA No. C 15-05395 WHA No. C 15-05396 WHA No. C 15-05397 WHA No. C 15-05398 WHA No. C 15-05399 WHA No. C 15-05400 WHA No. C 15-05401 WHA No. C 15-05402 WHA No. C 15-05403 WHA No. C 15-05404 WHA No. C 15-05406 WHA No. C 15-05408 WHA No. C 15-05409 WHA No. C 15-05410 WHA No. C 15-05411 WHA No. C 15-05412 WHA No. C 15-05413 WHA No. C 15-06060 WHA No. C 15-06062 WHA No. C 15-06063 WHA No. C 15-06064 WHA No. C 15-06065 WHA No. C 15-06066 WHA No. C 15-06067 WHA 1 No. C 15-06068 WHA No. C 15-06069 WHA No. C 15-06070 WHA No. C 15-06071 WHA No. C 15-06072 WHA No. C 15-06073 WHA No. C 15-06074 WHA No. C 15-06075 WHA 2 3 4 5 6 ORDER RE PLAINTIFF’S PROPOSED PROCEDURE FOR EFFECTUATING SERVICE 7 8 / 9 Plaintiff Malibu Media, LLC, has filed 116 copyright infringement actions in this 10 Media has encountered difficulty effectuating service by the deadline set by Rule 4(m), which For the Northern District of California United States District Court district. All of Malibu Media’s actions have been reassigned to the undersigned judge. Malibu 11 12 has resulted in repeated requests for extensions and, in four cases, dismissal for failure to timely 13 serve the defendants (after two extensions had already been granted). Accordingly, Malibu 14 Media filed a request in Case No. 15-4287 proposing that the undersigned judge issue a 15 standing order extending the deadline to effectuate service to fifty-five days from the date on 16 which it receives the defendant’s identifying information from his or her Internet provider for 17 all pending cases. Counsel for Malibu Media appeared for a hearing to discuss this proposal on 18 February 23. 19 As a matter of course, the deadline to effectuate service has been extended to at least 20 twenty-eight days from the date on which Malibu Media received the defendant’s identifying 21 information. Two extensions of two weeks each have been granted upon request and a showing 22 of good cause. In one case, the deadline was extended a third time where the defendant 23 appeared to be dodging service. 24 Malibu Media explains that the initial twenty-eight days does not offer sufficient time to 25 effectuate service, inasmuch as it takes twenty days from the date on which it receives a given 26 defendant’s identifying information before it can deliver the necessary documents and 27 28 2 1 instructions to a process server. Specifically, Malibu Media outlines the following procedure 2 that it follows upon receipt of a defendant’s identifying information: 3 ! Malibu Media conducts an investigation, typically lasting THREE to determine whether it will pursue its claims against the subscriber identified or a third party using that subscriber’s Internet connection. DAYS, 4 5 ! Once Malibu Media decides to pursue claims against a defendant, it takes THREE DAYS to prepare and file a proposed summons, amended complaint, return of service, and a motion to file those documents under seal. 8 ! Malibu Media’s sealing motion is granted within ONE DAY. 9 ! The summons issues between TWO AND SIX DAYS after the sealing motion is granted. ! Malibu Media receives the unredacted summons by mail FOUR TO TEN DAYS after it issues. ! Malibu Media spends ONE DAY reviewing the relevant documents before delivering them to its process server. 6 7 11 For the Northern District of California United States District Court 10 12 13 In light of this time-consuming procedure, Malibu Media seeks to alleviate the 14 administrative burden of repeatedly requesting extensions; however, Malibu Media exaggerates 15 the timeline of its procedure. 16 First, Malibu Media offers no explanation for why it needs three days to prepare and file 17 its proposed summons, amended complaint, return of service, and sealing motion. The 18 preparation of those documents involves little more than adding the defendant’s identifying 19 information to documents that Malibu Media had already created before receiving that 20 information. Even if Malibu Media actually needed three days to prepare those documents 21 (plus three to conduct its investigation), it generally files its sealing motions more than ten days 22 after receiving defendants’ identifying information. 23 Second, in no case has the summons issued more than one day after Malibu Media’s 24 sealing motion is granted. 25 Third, as noted in the orders dismissing four of Malibu Media’s cases (Case Nos. 1526 4246, 15-4248, 15-4280, and 15-4430), and as discussed at the hearing on this request, Malibu 27 Media’s lead counsel (who are based in Los Angeles) or local associated counsel, may retrieve 28 3 1 any unredacted summonses in person at the Clerk’s office on the 16th floor of 450 Golden Gate 2 Ave., San Francisco. Thus, any delay caused by the mailing of unredacted summonses is easily 3 avoided. 4 Accordingly, Malibu Media only needs eight to ten days from the date it receives a 5 defendant’s identifying information before it can deliver the relevant documents and 6 instructions to its process server. Nevertheless, notwithstanding the deadline set by Rule 4(m), 7 Malibu Media shall have thirty-five days from the date on which it receives the defendant’s 8 identifying information from the his or her Internet service effectuate service. 9 Requests for extensions beyond thirty-five days (or beyond the deadline set by Rule 4(m) if longer than thirty-five days) will be decided on a case-by-case basis and must be 11 For the Northern District of California United States District Court 10 supported by good cause. Any such request should be made immediately as circumstances 12 justifying the extension arise, rather than at the last minute. Malibu Media must support any 13 assertion that a defendant is dodging service with an affidavit of non-service (to be filed under 14 seal, with the defendant’s identifying information redacted on the public docket). 15 In order to better track deadlines, Malibu Media shall please file a notice informing the 16 Court of the date on which it received the defendant’s identifying information no later than FIVE 17 CALENDAR DAYS 18 after receiving that information. This order shall be filed in every pending Malibu Media case in this district in which the 19 defendant has not yet been served. As discussed at the hearing, Malibu Media shall please file 20 the transcript of the February 23 hearing in each of the above-captioned matters. 21 22 IT IS SO ORDERED. 23 24 Dated: February 23, 2016. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 25 26 27 28 4

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