Zynga Game Network, Inc. v. Williams et al

Filing 16

MOTION to Continue FRCP 4(m) Service Deadline filed by Zynga Game Network, Inc.. (Attachments: # 1 Affidavit, # 2 Proposed Order)(Caplan, David) (Filed on 7/2/2010)

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Larry W. McFarland (Bar No. 129668)
E-Mail: [e-mail]
Dennis Wilson (Bar No. 155407)
E-Mail: [e-mail]
David K. Caplan (Bar No. 181174)
E-Mail: [e-mail]
Tara D. Rose (Bar No. 256079)
E-Mail: [e-mail]
KEATS McFARLAND & WILSON LLP
9720 Wilshire Boulevard
Penthouse Suite
Beverly Hills, California 90212
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff
ZYNGA GAME NETWORK INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ZYNGA GAME NETWORK INC., a Delaware
Corporation,

CASE NO. CV-10:01022 JF (PVTx)

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Plaintiff,
v.
JASON WILLIAMS, an individual, LUNA
MARTINI, an individual, and JOHN DOES 1-5
D/B/A MW GROUP

MOTION TO CONTINUE FRCP 4(m)
SERVICE DEADLINE; AND
MEMORANDUM OF POINTS AND
AUTHORITIES
No Hearing Date Requested

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Defendants.

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CASE NO. CV-10:01022 JF (PVTx)

MOTION TO CONTINUE FRCP 4(m)
SERVICE DEADLINE

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MOTION
Plaintiff Zynga Game Network Inc. (“Zynga”) hereby moves the Court pursuant to Civil

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Local Rules 6-3 and 7-11 for an order continuing the service deadline of Federal Rule of Civil

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Procedure (“Rule”) 4(m). This motion is based on the Motion, the declaration of David K. Caplan,

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the [Proposed] Order, all pleadings on file in this action, and any other matter that may be submitted

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in support of the motion.

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ISSUES TO BE DECIDED
Whether the Federal Rule of Civil Procedure 4(m) deadline for Zynga to serve Defendants,
currently July 8, 2010, shall be continued.
MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION

Plaintiff Zynga Game Network Inc. (“Zynga”) respectfully requests that the Court continue

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the service deadline of Federal Rule of Civil Procedure (“Rule”) 4(m) as set forth below.

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II.

FACTS

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Rule 4(m) requires the plaintiff to serve the defendant within 120 days of the date a case is

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filed, unless it shows that there is good cause to extend that period. This case was filed on March

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10, 2010. Accordingly, the Rule 4(m) deadline will expire on July 8, 2010.

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To date, Zynga has been unable to confirm the identity or location of the defendants in this

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case (“Defendants”). (See Declaration of David K. Caplan in Support of Zynga’s Motion to

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Continue FRCP 4(m) Service Deadline (“Caplan Decl.”) ¶ 2; see also Dkt. Nos. 9-11 (Zynga’s

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Motion for Leave to Conduct Third Party Discovery (“Discovery Motion”) and Declarations of Tara

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D. Rose and Sean Hanley in Support of Zynga’s Motion for Leave to Conduct Third Party

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Discovery); Dkt. Nos. 12-13 (Zynga’s Motion to Continue Case Management Conference and

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Declaration of Tara D. Rose in support of Zynga’s Motion to Continue Case Management

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Conference). As such, Zynga has been unable to serve Defendants with process. As noted in

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Zynga’s Discovery Motion, Zynga is optimistic that production from third parties, will allow Zynga

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to confirm Defendants’ identity and location, and effect service on them. (See Dkt. No. 9.)

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CASE NO. CV-10:01022 JF (PVTx)

MOTION TO CONTINUE FRCP 4(m)
SERVICE DEADLINE

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III.

ARGUMENT

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There is good cause to continue the Rule 4(m) deadline. The Rule provides that the deadline

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to effect service (or to confirm that Defendants must be served outside the United States pursuant to

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Rule 4(f) or 4(j)(1), in which case the Rule does not apply) must be extended for “an appropriate

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period” if the plaintiff demonstrates good cause for its failure to effect service on the defendant

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within 120 days. Rule 4(m). In this case, there is good cause to continue both dates because Zynga

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must conduct additional third party discovery before it can identify and serve Defendants with

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process.1

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On May 20, 2010, the Honorable Patricia V. Trumbull granted in part and denied in part

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Zynga’s Motion for Leave to Conduct Third Party Discovery. (Dkt. No. 14.) Following, Zynga

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served subpoenas for the production of documents and information on GoDaddy.com, Inc.,

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Microsoft Office Live and PayPal, Inc. (See Caplan Decl. ¶ 3.) Production from GoDaddy.com,

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Inc. provided the same spurious physical addresses for Defendants as that listed in the Whois

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database information for the domain names listed in the Complaint.2 (Id. ¶¶ 4-5.) Production from

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GoDaddy.com, Inc. also provided three additional addresses for Defendants in Seattle, Washington,

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Chicago, Illinois, and New York, New York, but a search for these addresses has revealed that all

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three addresses do not exist. (See id. ¶ 6.) Production from PayPal, Inc. provided a name and

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address in Taipei City, Taiwan, but Zynga has not yet been able to confirm whether this information

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is legitimate. (Id. ¶ 7.) Zynga is currently awaiting production from Microsoft Office Live. (Id. ¶

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8.)

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Assuming the address in Taipei City, Taiwan is legitimate and/or Microsoft Office Live

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provides the requested documents and information regarding Defendants’ identity and location,

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The fact that Zynga has yet to confirm Defendants’ identities or locations prevents Zynga from
submitting this motion as a stipulation. (Caplan Decl. ¶ 8.)
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Zynga unsuccessfully attempted to serve Defendants at the physical addresses listed for Internet
domain names MWBLACKMARKET.COM and MWFEXPRESS.COM, and the physical address
listed for Internet domain name MAFIAWARSDIRECT.COM is not complete. (See Declaration of
Tara D. Rose in support of Zynga’s Motion to Continue Case Management Conference ¶ 4-8, Exs. 14 (Dkt. No. 13)).
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CASE NO. CV-10:01022 JF (PVTx)

MOTION TO CONTINUE FRCP 4(m)
SERVICE DEADLINE

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Zynga anticipates that it will be able to confirm Defendants’ identity and location within the next

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two months. Accordingly, Zynga respectfully requests that the Court continue the Rule 4(m)

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deadline until September 8, 2010.3 Zynga is optimistic that the requested continuance will allow

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Zynga sufficient time to complete third party discovery, comply with Rule 4(m) to the extent it

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applies in this case, and effect service on Defendants prior to this deadline.

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IV.

CONCLUSION

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For the foregoing reasons, Zynga respectfully requests that the Court issue an order

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continuing the Rule 4(m) service deadline in this matter. Zynga will gladly provide any additional

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information the Court may request regarding this Motion.

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Dated: July 2, 2010

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By:
/s/
David K. Caplan
Keats McFarland & Wilson LLP
Attorneys for Plaintiff
ZYNGA GAME NETWORK INC.

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As is evident from documents produced by PayPal, Inc. pursuant to Zynga’s subpoena, it is likely
that Defendants are located outside of the United States. If that proves to be the case, Rule 4(m) will
not apply. See Fed.R.Civ.P. 4(m). However, because Zynga has not yet confirmed Defendants’
identity and location, it cannot say with certainty that Rule 4(m) will not apply in this case.
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CASE NO. CV-10:01022 JF (PVTx)

MOTION TO CONTINUE FRCP 4(m)
SERVICE DEADLINE