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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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The Complaint in this case was filed approximately 7 months ago on May 10, 2012.

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AF HOLDINGS LLC,

Case No.: 12-CV-02394-LHK

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Plaintiff,
v.
JOHN DOE,
Defendant.

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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

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to Rule 26(f) Conference in order to discover the name of the John Doe Defendant. ECF No. 14.

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Magistrate Judge Grewal granted Plaintiff’s motion on October 2, 2012. ECF No. 17. Judge

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Grewal’s order allowed Plaintiff to immediately serve a subpoena on Doe’s ISP to obtain

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information sufficient to identify Doe, including name, address, telephone number, and email

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address. Id. at 2. The order gave the ISP 30 days to serve Doe and gave both the ISP and Doe 30

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days from the date of service in which to object to the subpoena. Id. at 2-3. If both Doe and the

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ISP failed to object, the ISP was required to produce, within 10 days, the information responsive to

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the subpoena to Plaintiff. Id. Thus, under Judge Grewal’s order, Plaintiff should have received the
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Case No.: 12-CV-02394
ORDER TO SHOW CAUSE

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information sought by the subpoena within 70 days of October 2, 2012. 70 days from October 2,

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2012 is December 11, 2012.

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Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant within 120

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day after it files the complaint. A court must dismiss a case without prejudice if a plaintiff has not

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complied with Rule 4(m), unless the plaintiff shows good cause for its failure to serve defendant.

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Fed. R. Civ. P. 4(m). 346 days have passed since the filing of the original complaint, and 31 days

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have passed since December 11, 2012, the date by which Plaintiff should have received the

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information sought by its subpoena. Nevertheless, Plaintiff has not amended the pleadings to

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identify the Doe Defendant nor has Plaintiff served Defendant.

United States District Court
For the Northern District of California

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In Plaintiff’s most recent case management statement, Plaintiff states that the ISP has not

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yet provided the identifying information for the Doe Defendant and that Plaintiff may bring a

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motion to compel the ISP to provide such information. ECF No. 25 at 2. However,

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notwithstanding the fact that the ISP was required to respond in December 2012, as of today’s date,

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Plaintiff has not brought a motion and states that it does not intend to bring a motion until February

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13, 2012 (three months after the ISP was required to respond to Plaintiff’s subpoena).

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Accordingly, the Court ORDERS Plaintiff to show cause why this action should not be dismissed

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for failure to serve the Doe Defendant as required by Rule 4(m) by January 18, 2013. See, e.g.,

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Patrick Collins Inc. v. Does 1-1219, No. 10-04468-LB (N.D. Cal. Aug. 29, 2011) (Beeler, M.J.)

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(issuing order to show cause). The Court will hold a hearing on Plaintiff’s response on January 23,

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2013, at 2:00 p.m.

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Plaintiff’s case management conference set for January 16, 2013 is VACATED.

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Accordingly, the Court DENIES as moot Plaintiff’s request for a continuance of the January 16

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case management conference. ECF No. 26.

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IT IS SO ORDERED.

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Dated: January __, 2012
11, 2013

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LUCY H. KOH
United States District Judge

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Case No.: 12-CV-02394
ORDER TO SHOW CAUSE