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.

DECLARATION OF DAVID K. CAPLAN
IN SUPPORT OF ZYNGA’S MOTION TO
CONTINUE FRCP 4(m) SERVICE
DEADLINE

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

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CASE NO. CV-10:01022 JF (PVTx)
DECLARATION OF DAVID K. CAPLAN IN SUPPORT OF
ZYNGA’S MOTION TO CONTINUE
FRCP 4(m) SERVICE DEADLINE

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I, David K. Caplan, declare as follows:
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I am a partner of the firm Keats McFarland & Wilson LLP, counsel to Zynga Game

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Network Inc. (“Zynga”) in this matter. I am over the age of eighteen and am competent to testify.

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Unless otherwise stated herein, I have personal knowledge of the facts stated in this declaration, and

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if called upon to do so, I could and would testify competently thereto.

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2.

Zynga requests that the Court continue the Federal Rule of Civil Procedure (“Rule”)

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4(m) service deadline in this matter based on the fact that Zynga must conduct additional third party

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discovery in order to confirm the identity and location of the defendants (“Defendants”) and to effect

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service on them.

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3.

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On June 7, 2010, Zynga served subpoenas on GoDaddy.com, Inc., Microsoft Office

Live and PayPal, Inc.
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On March 17, 2010, Zynga unsuccessfully attempted to serve Defendants at the

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address listed in the Whois database for Internet domain name MWFEXPRESS.COM, but this

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address was not valid. Production from GoDaddy.com, Inc. provided the same spurious physical

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address for Defendants.

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5.

On March 29, 2010, Zynga unsuccessfully attempted to serve Defendants at the

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address listed in the Whois database for Internet domain names MWBLACKMARKET.COM, but

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this address was not valid. Production from GoDaddy.com, Inc. provided the same spurious

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physical address for Defendants.

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6.

Production from GoDaddy.com, Inc. also provided three additional addresses for

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Defendants in Seattle, Washington, Chicago, Illinois, and New York, New York. A search for these

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addresses has revealed that all three addresses do not exist.

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7.

Confidential production from PayPal, Inc. provided a name and address in Taipei

City, Taiwan. Zynga has not yet been able to confirm whether this address is legitimate.
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To date, Zynga has not received the requested documents and information from

Microsoft Office Live.
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The fact that Zynga has yet to confirm Defendants’ identity or location prevents

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CASE NO. CV-10:01022 JF (PVTx)
DECLARATION OF DAVID K. CAPLAN IN SUPPORT OF
ZYNGA’S MOTION TO CONTINUE
FRCP 4(m) SERVICE DEADLINE

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Zynga from submitting this motion as a stipulation.

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Failure to continue the Rule 4(m) deadline would prejudice Zynga’s ability to

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prosecute its case against Defendants because Zynga’s claims would be subject to dismissal before

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Zynga could complete the third party discovery necessary to either comply with Rule 4(m) or

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confirm that Rule 4(m) does not apply because Defendants must be served outside of the United

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States.

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The Court previously granted Zynga’s Motion to Continue the Case Management

Conference in this matter from June 11, 2010 to August 27, 2010 at 10:30 a.m. (See Dkt. No. 15.)
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Because the Court has not yet issued a scheduling order pursuant to Rule 16(b), the

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requested continuance will not affect the schedule for this case other than possibly continuing the

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currently scheduled August 27, 2010 Case Management Conference if Zynga is unable to serve any

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of the defendants prior to August 27, 2010.

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I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.

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Executed this 2nd day of July, 2010 at Beverly Hills, CA.

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____________/s/____________________
David K. Caplan

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CASE NO. CV-10:01022 JF (PVTx)
DECLARATION OF DAVID K. CAPLAN IN SUPPORT OF
ZYNGA’S MOTION TO CONTINUE
FRCP 4(m) SERVICE DEADLINE