AF Holdings LLC v. Doe

Filing 12

ORDER TO SHOW CAUSE Order to Show Cause Hearing set for 1/16/2013 02:00 PM. Show Cause Response due by 1/11/2013.. Signed by Judge Lucy H. Koh on 1/1/2013. (lhklc2, COURT STAFF) (Filed on 1/1/2013)

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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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AF HOLDINGS LLC,
Plaintiff,

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v.
JOHN DOE,
Defendant.

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Case No.: 12-04219
ORDER TO SHOW CAUSE

On August 9, 2012, Plaintiff AF Holdings LLC (“AFH”) filed its original complaint in this

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matter, which was originally assigned to Magistrate Judge Laporte. ECF No. 1. On August 24,

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2012, AFH filed an ex parte application for leave to take limited discovery prior to a Rule 26

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conference. ECF No. 5. The case was subsequently reassigned to Judge Koh as the presiding

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judge and Magistrate Judge Grewal as the referral judge. On November 1, 2012, AFH filed a

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renewed ex parte application for leave to take limited discovery prior to a Rule 26 conference.

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ECF No. 9. Magistrate Judge Grewal granted this renewed application on November 9, 2012,

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permitting AFH to serve a subpoena on the Internet Service Provider (“ISP”) providing Doe’s

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internet access to obtain information identifying the Doe Defendant so that AFH could complete

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service of process on him. ECF No. 10. Judge Grewal’s order allowed AFH to immediately serve

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a subpoena on Doe’s ISP to obtain identifying information for Doe, including name, address,

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telephone number, and email address. Id. at 2. The order gave the ISP 30 days to serve Doe and
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Case No.: 12-CV-04219-LHK
ORDER TO SHOW CAUSE

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gave both the ISP and Doe 30 days from the date of service in which to object to the subpoena. Id.

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at 2-3. If both Doe and the ISP failed to object, the ISP was required to produce, within 10 days,

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the information responsive to the subpoena to AFH. Id.

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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). 145 days have passed since the filing of the original complaint and 53 days

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have passed since the issuance of Judge Grewal’s expedited discovery order, but no proof of

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service has been filed.

United States District Court
For the Northern District of California

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Under Rule 4(m), AFH was required to have filed proof of service by December 7, 2012.

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AFH did not. Accordingly, the Court ORDERS AFH to show cause why this action should not be

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dismissed for failure to serve the Doe Defendant as required by Rule 4(m) by January 11, 2013.

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

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M.J.) (issuing order to show cause). The Court will hold a hearing on AFH’s response on January

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16, 2013, at 2:00 p.m., in conjunction with the case management conference set for that date.

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IT IS SO ORDERED.

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Dated: January 1, 2013

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 12-CV-04219-LHK
ORDER TO SHOW CAUSE