AF Holdings, LLC v. Doe

Filing 27

ORDER TO SHOW CAUSE and ORDER denying 26 Motion to Continue by Judge Lucy H. Koh (lhklc1, COURT STAFF) (Filed on 1/11/2013)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION United States District Court For the Northern District of California 10 17 18 The Complaint in this case was filed approximately 7 months ago on May 10, 2012. 12 13 14 AF HOLDINGS LLC, Case No.: 12-CV-02394-LHK ) ) ) ) ) ) ) ) ) ) ) ) ) ) 11 Plaintiff, v. JOHN DOE, Defendant. 15 16 19 20 ORDER TO SHOW CAUSE Plaintiff identified the Defendant as John Doe. On September 19, 2012, Plaintiff filed a Motion for Leave to Take Limited Discovery Prior 21 to Rule 26(f) Conference in order to discover the name of the John Doe Defendant. ECF No. 14. 22 Magistrate Judge Grewal granted Plaintiff’s motion on October 2, 2012. ECF No. 17. Judge 23 Grewal’s order allowed Plaintiff to immediately serve a subpoena on Doe’s ISP to obtain 24 information sufficient to identify Doe, including name, address, telephone number, and email 25 address. Id. at 2. The order gave the ISP 30 days to serve Doe and gave both the ISP and Doe 30 26 days from the date of service in which to object to the subpoena. Id. at 2-3. If both Doe and the 27 ISP failed to object, the ISP was required to produce, within 10 days, the information responsive to 28 the subpoena to Plaintiff. Id. Thus, under Judge Grewal’s order, Plaintiff should have received the 1 Case No.: 12-CV-02394 ORDER TO SHOW CAUSE 1 information sought by the subpoena within 70 days of October 2, 2012. 70 days from October 2, 2 2012 is December 11, 2012. 3 Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant within 120 4 day after it files the complaint. A court must dismiss a case without prejudice if a plaintiff has not 5 complied with Rule 4(m), unless the plaintiff shows good cause for its failure to serve defendant. 6 Fed. R. Civ. P. 4(m). 346 days have passed since the filing of the original complaint, and 31 days 7 have passed since December 11, 2012, the date by which Plaintiff should have received the 8 information sought by its subpoena. Nevertheless, Plaintiff has not amended the pleadings to 9 identify the Doe Defendant nor has Plaintiff served Defendant. United States District Court For the Northern District of California 10 In Plaintiff’s most recent case management statement, Plaintiff states that the ISP has not 11 yet provided the identifying information for the Doe Defendant and that Plaintiff may bring a 12 motion to compel the ISP to provide such information. ECF No. 25 at 2. However, 13 notwithstanding the fact that the ISP was required to respond in December 2012, as of today’s date, 14 Plaintiff has not brought a motion and states that it does not intend to bring a motion until February 15 13, 2012 (three months after the ISP was required to respond to Plaintiff’s subpoena). 16 Accordingly, the Court ORDERS Plaintiff to show cause why this action should not be dismissed 17 for failure to serve the Doe Defendant as required by Rule 4(m) by January 18, 2013. See, e.g., 18 Patrick Collins Inc. v. Does 1-1219, No. 10-04468-LB (N.D. Cal. Aug. 29, 2011) (Beeler, M.J.) 19 (issuing order to show cause). The Court will hold a hearing on Plaintiff’s response on January 23, 20 2013, at 2:00 p.m. 21 Plaintiff’s case management conference set for January 16, 2013 is VACATED. 22 Accordingly, the Court DENIES as moot Plaintiff’s request for a continuance of the January 16 23 case management conference. ECF No. 26. 24 IT IS SO ORDERED. 25 Dated: January __, 2012 11, 2013 _________________________________ LUCY H. KOH United States District Judge 26 27 28 2 Case No.: 12-CV-02394 ORDER TO SHOW CAUSE

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