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)

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1 2 3 4 5 CHARLES C. RAINEY, ESQ. Nevada Bar No. 10723 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 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 (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 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

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