Hard Drive Productions, Inc. v. Does 1-118

Filing 23

ORDER TO SHOW CAUSE re failure to serve. Show Cause Response due by 10/11/2011.. Signed by Judge Laurel Beeler on 9/26/2011. (lblc2, COURT STAFF) (Filed on 9/27/2011)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 Oakland Division HARD DRIVE PRODUCTIONS, INC, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 Plaintiff, No. C 11-01567 LB ORDER TO SHOW CAUSE v. 13 DOES 1-118, 14 15 16 Defendants. _____________________________________/ Plaintiff Hard Drive Productions, Inc. filed its original complaint against 118 Doe Defendants on 17 March 31, 2011. ECF No. 1.1 The next day, Plaintiff filed an ex parte application for leave to take 18 limited discovery prior to a Rule 26 conference. ECF No. 6. The court granted this application on 19 April 14, 2011, permitting Plaintiff to serve subpoenas on certain Internet Service Providers (“ISPs”) 20 to obtain information identifying the Doe Defendants so that Plaintiff could complete service of 21 process on them. ECF No. 8. The order gave the ISPs and subscribers each 30 days in which to 22 object to the subpoenas. Id. at 5. More than 180 days have passed since the filing of the original 23 complaint and more than 165 days have passed since the issuance of the order permitting early 24 discovery, but, to date, no proof of service has been filed. 25 Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant within 120 days 26 after it files the complaint. The 120 days for service runs from the date of the original complaint for 27 28 1 Citations are to the clerk’s electronic case file (“ECF”) with pin cites to the electronic page numbers at the top (as opposed to the bottom) of the page. C 11-01567 each Doe Defendant, the identity of the ISP associated with the IP address, the last-observed date 3 and time that the infringement by that Defendant was observed, and the software protocol used by 4 the Defendant – named in the original complaint. See Harris v. City of Cleveland, 7 Fed. Appx. 452, 5 456 (6th Cir. 2001) (“A plaintiff cannot extend the service period with respect to an already-named 6 defendant by filing an amended complaint naming additional defendants.”) (citing 4A Wright & 7 Miller, Federal Practice & Procedure § 1137, at 103 (Supp. 2000)); Carmona v. Ross, 376 F.3d 829, 8 830 (8th Cir. 2004) (holding that district court did not abuse its discretion in dismissing defendants 9 named in an amended complaint when they had been named in an earlier complaint but not served 10 within 120 days of the filing of the original complaint); Scott v. Hern, 216 F.3d 897, 911-912 (10th 11 Cir. 2000) (upholding dismissal of an action against Doe defendants for failure to effect timely 12 For the Northern District of California all Doe Defendants – identified by Doe number, the Internet Protocol (“IP”) address associated with 2 UNITED STATES DISTRICT COURT 1 service under Rule 4(m)); Figueroa v. Rivera, 147 F.3d 77, 83 (1st Cir. 1998) (holding, in the 13 alternative, that dismissal was proper pursuant to Rule 4(m) where the plaintiff failed to identify and 14 serve an unknown defendant within 17 months of filing the complaint); Aviles v. Village of Bedford 15 Park, 160 F.R.D. 565, 567 (N.D. Ill. 1995) (holding that Doe defendants must be identified and 16 served within 120 days of the commencement of the action against them (but declining to dismiss 17 the action)); Sedaghatpour v. California, No. C 07-01802 WHA, 2007 WL 2947422, at *2 (N.D. 18 Cal. Oct. 9, 2007) (“Furthermore, the Court may dismiss ‘Doe’ defendants who are not identified 19 and served within 120 days after the case is filed pursuant to FRCP 4(m).”); cf. McGuckin v. United 20 States, 918 F.2d 811, 812, 813 (9th Cir. 1990) (holding that time to serve defendants added in the 21 new complaint runs from filing of new complaint). This approach comports with the policies 22 underlying the rule. See Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987) (“Rule 4(j) 23 [Rule 4(m)’s predecessor] is intended to force parties and their attorneys to be diligent in 24 prosecuting their cause of action.”) (citing Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir. 25 1985)). 26 A court must dismiss a case without prejudice if a plaintiff has not complied with Rule 4(m) 27 unless the plaintiff shows good cause for its failure to serve a defendant. Fed. R. Civ. P. 4(m). If 28 good cause appears, the court must extend the time for service for an appropriate period. Id. C 11-01567 2 1 Whether good cause exists is determined on a case by case basis. In re Sheehan, 253 F.3d 507, 512 2 (9th Cir. 2001). A plaintiff may show good cause where it attempted to serve a defendant but not yet 3 completed it, was confused about the requirements for service of process, or was prevented from 4 serving a defendant because of events outside of its control. See Wei v, 763 F.2d at 372 (applying 5 the good cause standard in Rule 4(j) which was replaced by Rule 4(m) in 1993); Mateo v. M/S KISO, 6 805 F. Supp. 792, 795 (N.D. Cal. 1992) (overturned on other grounds). Evasion of service could 7 also constitute good cause for delay in service. Id. at 371; Intrade Industries, Inc. v. Foreign Cargo 8 Mgmt. Corp., No. 1:07-CV-1893 AWI GSA, 2008 WL 5397495, at *1 (E.D. Cal. Dec. 24, 2008) 9 (citing Hendry v. Schneider, 116 F.3d 446, 449 (10th Cir. 1997)). 10 In its administrative motion to continue the case management conference, Plaintiff explains that it has served subpoenas on all of the Internet Service Providers identified in its application, and 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 “[w]hile some ISPs have fully complied with the Court’s Order [permitting early discovery], others 13 are working slowly to get Plaintiff the identifying information desired.” ECF No. 9 at 4. The delays 14 allegedly attributable to some of the ISPs, however, does not explain Plaintiff’s failure to provide 15 proof of service on any of the Doe Defendants. Moreover, Plaintiff’s administrative motion to 16 continue the case management conference is not a motion for an enlargement of time to serve, and 17 the statements within the administrative motion do not constitute acceptable evidence of good cause. 18 Rule 4(m) requires Plaintiff to have filed proof of service by July 29, 2011. Plaintiff did not. 19 The court’s earlier order giving Plaintiff permission to take expedited discovery implicitly 20 contemplated an extension but does not excuse a whole cloth failure to serve process or otherwise 21 assure the court that Plaintiff is diligently prosecuting the case. Accordingly, the court ORDERS 22 Plaintiff to show cause why this action should not be dismissed for failure to serve the defendants as 23 required by Rule 4(m) by October 11, 2011. 24 25 IT IS SO ORDERED. 26 Dated: September 26, 2011 _______________________________ LAUREL BEELER United States Magistrate Judge 27 28 C 11-01567 3

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