Criminal Productions, Inc. v. John Does

Filing 34

ORDER Granting 30 Motion to Extend Time to Serve the Remaining Un-Served Defendants. See Order for deadlines. Signed by Magistrate Judge Carl W. Hoffman on 3/21/17. (Copies have been distributed pursuant to the NEF - ADR)

1
2
3
4
5

CHARLES C. RAINEY, ESQ.
Nevada Bar No. 10723
[e-mail]
HAMRICK & EVANS LLP
7670 W. Lake Mead Blvd., Ste. 140
Las Vegas, Nevada 89128
+1.702.425.5100 (ph)
+1.818.763.2308 (fax)
Attorney for Plaintiff

6
7

9
10
11
12
13
14
15
16
17
18
19
20

U N ITED STATES DISTRICT COU RT
DISTRICT OF N EVADA
)
) Case No.: 2:16-cv-01968-RFB-CWH
)
)
)
Plaintiff,
)
vs.
)
)
DANIEL ANDERSON, an individual;)
MORTON CAMPBELL, an individual;)
KELLI
HOFFMAN,
an
individual;)
TEGAN LEWIS, an individual; ZOE)
SEPHOS, an individual; DERRICK)
SULLIVAN, an individual; ANASTACIOS)
THEOLOGITIS, an individual; KENNY)
YANG, an individual; and JOHN AND)
JANE DOES.
)
)
Defendants
)
)
CRIMINAL PRODUCTIONS, INC., a
Nevada corporation,

21
22

PLAIN TIFF’S M OTION FOR EXTEN SION OF TIM E TO SERVE TH E

23

REM AIN IN G U N-SERVED DEFEN DAN TS

24
25

COMES NOW, Plaintiff CRIMINAL PRODUCTIONS, INC. (“PLAINTIFF”),

26

by and through its counsel, Charles Rainey, Esq. of HAMRICK & EVANS LLP, and

27

hereby moves this court for an extension of time to serve those Defendants herein

28

that have yet to be served. This motion is based upon the memorandum of points
1

HAMRICK & EVANS LLP

8

1

and authorities attached hereto, the pleadings and papers on file, and any

2

arguments to be had at any hearing of this matter, if the court so requires any

3

hearing.

4
5
6
7
8
9
10

Respectfully submitted March 19, 2017.
HAMRICK & EVANS LLP

/s/ Charles C. Rainey

CHARLES C. RAINEY, ESQ.
Nevada Bar No. 10723
[e-mail]
7670 W. Lake Mead Blvd., Ste. 140
Las Vegas, Nevada 89128
+1.702.425.5100 (ph)
Attorney for Plaintiff

HAMRICK & EVANS LLP

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2

MEMORANDUM OF POINTS AND AUTHORITIES

1
2

I. INTRODUCTION

3

Plaintiff respectfully requests that the Court grant it an extension of ninety

4

(90) days to serve the remaining un-served Defendants in the present case. As

5

demonstrated below, good cause exists for the extension of the deadline to serve the

6

Defendants herein. Each of the remaining un-served defendants should be well

7

aware of the present case, having received multiple notices of the present action.

8

None of the Defendants would suffer any undue prejudice as a result of this Court’s

9

extension of the deadline for service.

of the Defendants would unduly prejudice the Plaintiff.

11

When this case was first filed, the Plaintiff only knew the Defendants by

12

their respective IP addresses. Only after filing this action and moving the court for

13

the right to conduct limited discovery, was the Plaintiff finally able to learn the

14

Defendants’ true identities.

15

Defendants, the Plaintiff attempted in earnest to provide each Defendant with

16

ample opportunity to resolve this matter without the need for further litigation. In

17

a typical case, this negotiation and fact-finding process would have occurred prior

18

to the case’s filing. However, due to the logistics of Internet piracy cases, such as

19

the one at hand, this negotiation and investigative process must occur AFTER the

20

case is filed and often continue beyond the filing of the amended complaint and

21

even beyond the service deadlines.

Then, upon learning the true identities of the

22

Plaintiff has diligently pursued its rights in this case. However, the time

23

limitations imposed by FRCP 4(m) are unfortunately too narrow to: (i) allow the

24

Plaintiff sufficient time to satisfy all applicable legal requirements related to its

25

action, (ii) afford the Defendants reasonable time to resolve the pending dispute,

26

and also (iii) timely serve the Defendants with the amended complaint. As such,

27

Plaintiff contends good cause exists to extend the deadline for service in this

28

matter.
3

HAMRICK & EVANS LLP

10

Meanwhile, a dismissal of any one or more

1

II. FACTUAL BACKGROUND

2

Plaintiff filed the present action on August 18, 2016. At that time, Plaintiff

3

only knew the Defendants by their IP Addresses. Accordingly, on the same day the

4

Plaintiff filed its Complaint, Plaintiff immediately moved ex parte to open

5

discovery for the limited purpose of identifying each of the Defendants by their true

6

names. The Court granted the Plaintiff’s ex parte motion on August 23, 2016.

7

Then, pursuant to this Court’s order, Plaintiff immediately, within 24 hours of

8

receiving the Court’s order, served a subpoena upon the Defendants’ Internet

9

Service Provider, seeking the names and addresses of the individual Internet
subscribers responsible for the subject IP Addresses.

11

On September 30, 2016, the Defendants’ ISP provided Plaintiff’s counsel

12

with the names and addresses of the individual subscribers for each account

13

associated with the Defendant IP Addresses.

14

demand letter to each and every individual Internet subscriber, affording each the

15

opportunity to settle the present case prior to being individually named as

16

Defendants in an amended complaint. In the original demand letter, the Plaintiff

17

included a copy of the filed complaint and expressly imposed upon each Defendant

18

a responsive deadline of two weeks. For those Defendants who failed to timely

19

respond to the first demand letter, the Plaintiff issued a second demand letter,

20

again affording each Defendant an additional two weeks to respond.

Plaintiff promptly dispatched a

21

On November 21, 2016, only after several Defendants had ignored the

22

multiple demands and others had outright refused to make any attempt at a

23

settlement, the Plaintiff amended the complaint on file to identify each Defendant

24

by name. Within one week after filing the amended complaint, the Plaintiff issued

25

yet another round of letters to the Defendants, this time including a copy of the

26

amended complaint.

27

AM:PM Legal Solutions, to effectuate personal service upon each of the named

28

defendants.

The Plaintiff also promptly ordered its process server,

4

HAMRICK & EVANS LLP

10

1

In the ensuing weeks, the Plaintiff engaged in further negotiations with

2

certain Defendants, in some cases settling its claims with such Defendants and

3

dismissing those Defendants from the action.

4

elected to dismiss Defendants it determined to be no longer residing at the subject

5

residence or who were otherwise not servable.

In other instances, the Plaintiff

6

As of the date of the present motion, each of the remaining un-served

7

Defendants has received multiple notices of the present action, should be fully

8

aware of the present action, and is likely evading service.

9

III.

ARGUMENT

Plaintiff should be afforded additional time to serve the Defendants in the

11

present case, because good cause exists to extend the service deadline. Each of the

12

remaining un-served Defendants is aware of the present action. Meanwhile, there

13

is no risk that extending the deadline would prejudice any of the Defendants.

14

Furthermore, any dismissal of the un-served defendants would unduly prejudice

15

the Plaintiff.

16

Rule 4 of the Federal Rules of Civil Procedure governs service of process in a

17

civil action. See generally, Fed. R. Civ. P. 4. Subpart (m) of the rule sets forth the

18

time period during which service must occur. Id. The relevant portion states the

19

following:

20
21
22
23

Tim e Lim it for Service. If a defendant is not served within 90 days
after the complaint is filed, the court—on motion or on its own after
notice to the plaintiff—must dismiss the action without prejudice
against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). (Emphasis added.)

24

Rule 4(m) requires a two-step analysis in deciding whether to extend the

25

time for service of the summons and complaint. In re Sheehan, 235 F.3d 507, 512

26

(9th Cir. 2001). First, upon a showing of good cause, the court must extend the time

27

period. Id. Second, if there is no good cause, the court has the discretion to dismiss

28

without prejudice or to extend the time period. Id. "[A]t a minimum, 'good cause'
5

HAMRICK & EVANS LLP

10

1

means excusable neglect." Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991).

2

In Boudette, the Ninth Circuit stated a plaintiff may be required to show the

3

following factors in order to bring the excuse to the level of good cause: "(a) the

4

party to be served received actual notice of the lawsuit; (b) the defendant would

5

suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint

6

were dismissed." Id. (citing Hart v. United States, 817 F.2d 78, 80-81 (9th Cir.

7

1987)). The Ninth Circuit has not articulated specific factors for a district court to

8

apply when exercising its discretion in the absence of a showing of good cause. In

9

re Sheehan, 253 F. 3d at 512. However, the court's discretion is broad. Id.
The facts of the present case satisfy each element for a finding of good cause

11

to extend the service deadline.

First, each of the un-served Defendants has

12

received multiple notices of the pending action. Prior to the case even being filed,

13

each Defendant would have received an email warning from its ISP, notifying each

14

Defendant of the copyright infringement occurring over their respective Internet

15

connections. Then, shortly after the filing of the present action, upon submission of

16

the Plaintiff’s subpoena to the Defendant’s ISP, each Defendant would have

17

received from its respective ISP a written notice of the pending subpoena. Then,

18

immediately after the Plaintiff’s receipt of the subpoena response, the Plaintiff

19

served a demand letter upon each of the Defendants.

20

was ignored, the Defendant served a second demand letter upon each of the

21

Defendants. Subsequently, after the present case was amended to identify each of

22

the Defendants by name, the Plaintiff sent yet another letter to each of the

23

Defendants, this time providing each with a copy of the amended complaint.

When first demand letter

24

After affording each Defendant ample opportunity to resolve the pending

25

dispute, the Plaintiff ordered its process server, AM:PM Legal Solutions, to

26

effectuate personal service upon each of the Defendants. While Plaintiff’s process

27

server successfully effectuated service on some Defendants in the present case, it

28

was not able to effectuate service on all Defendants.
6

For those Defendants the

HAMRICK & EVANS LLP

10

1

Process Server was unable to serve, the Plaintiff assessed whether the individual

2

Defendant was still residing at the subject residence. In cases where the Plaintiff’s

3

counsel had reason to believe the Defendant had moved away from the service

4

address, the Plaintiff dismissed the Defendant from the present action.

5

created a circumstance where the only un-served Defendants were those

6

individuals residing at the same address where they would have received at least

7

four (4) notices of the pending litigation, along with multiple other warnings of

8

copyright infringement occurring at their address.

This

Secondly, extending the deadline for service poses no risk of prejudice upon

10

the Defendants. In fact, the lengthy notice process that caused the Plaintiff to run

11

up against the service deadline is designed to alleviate any prejudice to the

12

Defendants and afford each of them ample opportunity to either (i) settle the

13

pending claims without litigation; or (ii) identify and retain counsel to reasonably

14

dispute the pending claims.
Finally, if the Court were to dismiss the present action, forcing the Plaintiff

15
16

to re-file its case, the Plaintiff would suffer undue prejudice.

Internet piracy

17

cases, such as the one at hand, are administratively burdensome to begin with.

18

Meanwhile, the data we rely upon in proving these cases is often maintained for a

19

finite period of time.

20

Each day that passes, gives the infringer more opportunity to cover its digital

21

tracks.

22

Defendants from the present action “without prejudice,” it is unlikely the Plaintiff

23

would find it feasible to re-file its case against those Defendants. Consequently,

24

even if a Defendant is dismissed “without prejudice,” the practical effect is the

25

Plaintiff loses the ability to pursue its claim any further.

In many ways, these cases are a race against the clock.

In light of the foregoing, if the Court were to dismiss the un-served

26

Meanwhile, our District is confronted with a crisis of copyright infringement.

27

Nevada is ranked among the worst offenders for Internet piracy.1 Every day,

28

1

See http://www.movoto.com/blog/novelty-real-estate/torrenting-us-state/ (notes Nevada is among the worst states
for bitorrent usage, with particular emphasis on the peer-to-peer downloads of movies).

7

HAMRICK & EVANS LLP

9

1

thousands of copyright infringements occur over our State’s Internet connections.

2

The practice has become so commonplace that we have developed a culture of theft

3

– a culture where pirating downloads of copyrighted material is widely accepted.

4

This culture of piracy threatens some of the core principals of our Nation’s

5

founding and success.

6

copyrights to be so important that they specifically wrote it into our Constitution.

7

See U.S. Const., Art 1, §8(8). Meanwhile, many economists and other scholars

8

correlate the growth and strength of our Nation’s economy in the past century to

9

our strong system of intellectual property rights.2 These cases are essential to

10

preserving the rights of copyright-holders and reversing the unsettling trend of

11

widespread Internet piracy.
CONCLUSION

13

For the foregoing reasons, the Plaintiff respectfully requests that the Court

14

extend the deadline to serve the Defendants herein by an additional ninety (90)

15

days.
Respectfully submitted this March 19, 2017.

16
17
18
19

March 21, 2017

20
21
22
23

/s/ Charles C. Rainey
CHARLES C. RAINEY, ESQ.
Nevada Bar No. 10723
[e-mail]
HAMRICK & EVANS LLP
7670 W. Lake Mead Blvd., Ste. 140
Las Vegas, Nevada 89128
+1.702.425.5100 (ph)
+1.818.763.2308 (fax)
Attorney for Plaintiff

24
25
26
27
28

2

See e.g., Walter G. Park, et al., “Intellectual Property Rights and Economic Growth,” Contemporary Economic
Policy, Vol. 15, Issue 3, pp. 51-61 (1997).

8

HAMRICK & EVANS LLP

IV.

12

Indeed, our founding fathers held the protection of