Arista Records et al v. Does 1-6

Filing 24

REPORT AND RECOMMENDATION that this case be dismissed without prejudice pursuant to NECivR 41.1. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA ARISTA RECORDS LLC, a Delaware limited liability company; ATLANTIC REC O R D IN G CORPORATION, a Delaware corporation; BMG MUSIC, a New York general partnership; CAPITOL RECORDS INC., a Delaware corporation; ELEKTRA EN TERTA IN M EN T GROUP INC., a Delaware corporation; LAFACE RECORDS LLC, a Delaware limited liability company; LAVA REC O R D S LLC, a Delaware limited liability company; SONY BMG MUSIC EN TER TA IN M EN T, a Delaware general partnership; UMG RECORDINGS INC., a Delaware corporation; VIRGIN RECORDS AM ER IC A INC., a California Corporation; WA R N ER BROS. RECORDS INC., a Delaware corporation; and ZOMBA RECORDING LLC, a
Delaware limited liability company,

Plaintiffs, vs. DOES 1-6, Defendants.

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4:08CV3060 REPORT AND RECOMMENDATION

T h e court has reviewed the PLAINTIFFS' RESPONSE TO THE COURT'S ORDER TO SHOW C AUSE AND MOTION FOR EXTENSION OF TIME TO EFFECTUATE SERVICE (Doc. 23). O n July 9, 2008, the court conditionally granted the plaintiffs' Motion for Leave to T a k e Immediate Discovery. To avoid the substantial delays and inactivity exhibited in p re v io u s cases of this nature, the plaintiffs were specifically ordered to serve their Rule 45 s u b p o e n a no later than July 25, 2008 and to effect service on all defendants by September 30, 2 0 0 8 . The order specifically provided: 8 . A n y requests by plaintiffs, defendants, UNL, any other interested party f o r changes of the deadlines established by this order shall be directed to the u n d e rs ig n e d magistrate judge by electronically-filed written motion....

A p p a re n tly, the plaintiffs did serve the Rule 45 subpoena on or about July 10, 2008, and the re c ip ie n t University acted in accordance with the July 9, 2008 order. There is no indication o n the record that the plaintiffs took any other action to enforce the subpoena. T h e deadline for serving the defendants expired over two months ago. The plaintiff d id not timely ask for an extension of this deadline, and there has been no substantive activity in the case since the subpoena was served on the University of Nebraska last July. R e m a rk a b ly, plaintiffs now advise the court that "Plaintiffs and the University have only re c en t ly come to an agreement regarding the production of the requested materials. The U n iv e rs ity will be providing their response to Plaintiffs' subpoena in the near future." They r e q u e s t yet another 90 days in which to identify and effectuate service on the defendants. T h e plaintiffs have disregarded the court's scheduling orders and have failed to p r o s e c u t e this matter with reasonable diligence. They have not shown cause why this case s h o u ld not be immediately dismissed without prejudice for failure to prosecute. For these r e a so n s , I T IS RECOMMENDED that this case be dismissed without prejudice pursuant to N E C iv R 41.1. P u r s u a n t to NECivR 72.3, a party may object to a this Report and Recommendation b y filing an "Objection to Report and Recommendation" within ten (10) days after being s e rv e d with the recommendation. The statement of objection shall specify those portions of th e recommendation to which the party objects and the basis of the objection. The objecting p a rty shall file contemporaneously with the statement of objection a brief setting forth the p a rty's arguments that the magistrate judge's recommendation should be reviewed de novo a n d a different disposition made. D A T E D December 12, 2008. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge

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