LHF Productions, Inc. v. Does 1-24

Filing 13

MEMORANDUM OPINION. See for complete details. Signed by District Judge M. Hannah Lauck on 12/22/2016. (nbrow)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
LHF PRODUCTIONS, INC.,
Plaintiff,

v.

Civil Action No. 3:16cv282

JOHN DOES 1-24,
Defendants.
MEMORANDUM OPINION
This matter comes before the Court on four motions: (1) the Second Motion to Extend
Time Pursuant to Federal Rule of Civil Procedure 4(m) (the "Second Motion to Extend Time")
filed by Plaintiff LHF Productions, Inc. ("LHF"), (ECF No. 8); (2) the Motion for Discovery to
Take Pre-Conference Depositions (the "Motion for Discovery") filed by LHF, (ECF No. 9);
(3) the Third Motion to Extend Time Pursuant to Federal Rule of Civil Procedure 4(m) and
Notice of First Amended Complaint (the "Third Motion to Extend Time") filed by LHF,
(ECF No. 11); and, (4) the Motion of Plaintiff for Leave to File Second Amended Complaint
(the "Motion for Leave to File") filed by LHF, (ECF No. 12). The Court exercises jurisdiction
pursuant to 28 U.S.C. § 1338(a). 1 The Court dispenses with oral argument because the materials
before it adequately present the facts and legal contentions, and argument would not aid the
decisional process.
For the reasons that follow, the Court will: (1) order LHF to file a First Amended
Complaint within fourteen ( 14) days of entry of this Memorandum Opinion and Order; (2) sever
1

28 U.S.C. § 1338(a) states in part: "The district courts shall have original jurisdiction of
any civil action arising under any Act of Congress relating to patents, plant variety protection,
copyrights and trademarks." 28 U.S.C. § 1338{a).

and dismiss without prejudice all defendants except the first named defendant; (3) quash any
subpoenas issued pursuant to its May 26, 2016 Order, (ECF No. 5), to the extent the subpoenas
pertain to any defendants other than the first named defendant; (4) deny as moot the Second
Motion to Extend Time, (ECF No. 8), (5) deny as moot the Motion for Discovery, (ECF No. 9);
(6) grant LHF's Third Motion to Extend Time, (ECF No. 11), only to the extent it pertains to the
first named defendant; and, (7) deny as moot the Motion for Leave to File, (ECF No. 12).

I. Factual and Procedural Background
A.

Allegations in the Complaint

On May 13, 2016, LHF filed its Complaint for Copyright Infringement against John Does
1-24 in this Court.2 (ECF No. 1.) The Complaint listed 24 John Doe defendants ("the
Defendants"), identified by their Internet Protocol ("IP") addresses, who had allegedly infringed
on LHF's copyrighted work, the motion picture London Has Fallen ("the Movie"), in violation
of the United States Copyright Act, 17 U.S.C. §§ 101, et seq. To establish personal jurisdiction
in this District, LHF used "geolocation technology" to trace the IP addresses of all the
Defendants to a point of origin within this District.
The Complaint alleges that, using a network called a "BitTorrent protocol"
("BitTorrent"), the Defendants "reproduced, distributed[,] and offered to distribute" the Movie
without LHF's consent or permission. (Compl. 2-3.) The Defendants' alleged use of BitTorrent
occurred over the span of nine days: March 8, 2016, to March 17, 2016. LHF contends that
BitTorrent differs from a Peer-to-Peer protocol in that it facilitates data-sharing among
individuals and "makes even small computers with low bandwidth capable of participating in
2

The same day, LHF filed two other nearly identical complaints in this Court. LHF
Prods., Inc. v. Does 1-25, 3:16cv283; LHF Prods., Inc. v. Does 1-20, 3:16cv284. LHF has filed
two other similar complaints in this Court. LHF Prods., Inc. v. Does 1-18, 3:16cv274 and LHF
Prods., Inc. v. Does 1-10, 3:16cv748.
2

large data transfers." (Id. at 2.) In BitTorrent, the initial shared file is called a "seed," and other
users on the network are called "peers." When peers connect to the network and request the
seed, they receive different pieces of the seed data from other peers who have already
downloaded the file. Each peer thus "becomes a part of the network from which the file can be
downloaded." (Id) This group of peers is called a "swarm." LHF claims that with BitTorrent,
"every downloader [is] also an up loader" of the shared file, and every member of a swarm serves
as a source for the seed file, so long as the member remains online at the time other peers
download the file. (Id at 2-3.) Furthermore, "because of the nature of the swarm downloads ...
every [peer] is [downloading seed data] from many [ISPs] in numerous jurisdictions." (Id. at 3.)
Uploading one seed file to a BitTorrent network "can result in nearly instantaneous worldwide
distribution of that single [file] to a limitless number of people." (Id.)
LHF asserts that "each Defendant deliberately participated in a swarm and/or reproduced
and/or distributed the same seed file" of the Movie, and thereby "participated in a collective and
interdependent manner with other Defendants" to infringe LHF's copyright. (Id at 5-6.) LHF
states that because all the Defendants participated in the "same swarm" using BitTorrent, all the
Defendants participated in the "same transaction, occurrence[,] or series of transactions or
occurrences as the other Defendants in the swarm." (Id. at 6.) LHF seeks declaratory,
injunctive, and monetary relief.
On May 19, 2016, LHF filed a Motion for Leave to Serve Third Party Subpoenas in order
to ascertain the identities of the John Doe defendants associated with the IP addresses. LHF
sought leave to serve limited discovery on the Internet Service Providers ("ISPs") from which
the Defendants obtain Internet access in order to determine the Defendants' identities. On May
26, 2016, the Court granted LHF's Motion and allowed LHF to serve subpoenas under Federal

3

Rule of Civil Procedure 45 3 seeking "information sufficient to identify each defendant, including
name, address, telephone number, email address, and Media Access Control address." (Order 2.)

B.

LHF's Second Motion to Extend Time

On October 6, 2016, LHF filed the Second Motion to Extend Time, requesting the Court
to extend time to serve the Defendants because "[t]he process of identifying likely infringers is
continuing and LHF expects to complete that process by November 30, 2016." (Mot. Extend
Time 2.) LHF asked for an extension of sixty days "to complete depositions for identification
purposes, joinder, and service of the defendants of this case." (Id)

3

Rule 45 governs subpoenas. It states, in pertinent part:

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the court for the district where
compliance is required must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a
subpoena, the court for the district where compliance is required may,
on motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information; or
(ii) disclosing an unretained expert's opinion or information that
does not describe specific occurrences in dispute and results from
the expert's study that was not requested by a party.

Fed. R. Civ. P. 45(d)(3).

4

C.

LHF's Motion for Discovery

Also on October 6, 2016, LHF filed the Motion for Discovery, requesting that the Court
"grant[] it leave to take depositions prior to a Rule 26(f) conference ...." (Mot. Disc. 1.) In
support of the Motion for Discovery, LHF asserts, inter alia, that: ( 1) good cause exists to grant
the motion; (2) LHF seeks limited and specific discovery; (3) no alternative means exists to learn
Defendants' identities; and, (4) LHF' s interest in knowing Defendants' identities outweighs
Defendants' interests in remaining anonymous. (Id at 5-8.) LHF requests the Court's
permission to "take depositions of certain IP address assignees in order to attempt to determine
the true name and address of each Doe Defendant." (Id at 10.) LHF alleges that "[w]ithout this
information, LHF cannot properly move its lawsuit forward ...." (Id)

D.

LHF's Third Motion to Extend Time

On December 7, 2016, LHF filed the Third Motion to Extend Time, requesting another
extension of time to serve the Defendants. LHF included a "Notice of Filing of Amended
Complaint" in the Third Motion to Extend Time and attached the "First Amended Complaint,"
which included named defendants, to the Motion as an exhibit. The Third Motion to Extend
requests until January 6, 2017, to serve the "name[d] IP address holders that have not settled."
(Mot. Extend 1 (emphasis added).) LHF asserts that "good cause ... exists in terms of the time
required for obtaining summons and serving the named defendants," and requests additional time
"to complete settlements where possible and service of others that do not settle." (Id at 2

(emphasis added).)

E.

LHF's Motion for Leave to File

On December 20, 2016, LHF filed the Motion for Leave to File, requesting leave to
further amend its proposed "First Amended Complaint" and file a Second Amended Complaint.

5

(Mot. Leave File 2.) LHF states that after obtaining the identities of people assigned the IP
addresses associated with the alleged infringement, "LHF made a good faith effort to identify
actual infringers and seek settlement with each person identified by the subpoenaed
information." (Id at 2 (emphasis added).) LHF requests this Court's permission to amend its
"First Amended Complaint" to correct "clerical errors" in that proposed filing. (Id) These
inaccuracies included LHF "erroneously includ[ing]" a person-in a proposed public
document-as an infringer whom LHF had "verified as a non-infringer." (Id) Such substantive
blunders cause the Court grave concern.

II. LHF May File Its First Amended Complaint as a Matter of Right
Federal Rule of Civil Procedure 15(a)(l)(A) permits a party to amend its pleading once as
a matter of course within 21 days after serving it. Fed. R. Civ. P. 15(a)(l)(A).4 LHF filed its
''Notice of Amended Complaint" before any Defendants had been served. Therefore, Rule
15(a)(l)(A) permits LHF to file an amended complaint as a matter of course. The Court will
order LHF to file an amended complaint. 5

III. The Court Will Sua Sponte Sever All Defendants Except the First Named Defendant
A.

Legal Standard for Joinder of Defendants

Federal Rule of Civil Procedure 20(a)(2) allows joinder of defendants if: "(A) any right
to relief is asserted against them jointly, severally, or in the alternative with respect to or arising
out of the same transaction, occurrence, or series of transactions or occurrences; and[,] (B) any

4

Rule 15(a)(l)(A) states: "A party may amend its pleading once as a matter of course
within ... 21 days after serving it .... '~ Fed. R. Civ. P. 15(a)(l)(A).
5

LHF attached its "First Amended Complaint" to the Third Motion to Extend Time as an
exhibit. (ECF No. 11-1.) The First Amended Complaint lists thirteen named defendants. In
light of the Court's ruling that all Defendants must be severed, the Court will order LHF to file
an amended complaint that includes only the first named defendant.
6

question of law or fact common to all defendants will arise in the action." Fed. R. Civ.
P. 20(a)(2). Although misjoinder cannot undergird the dismissal of an action, "[o]n motion or on

its own, the court may at any time, on just terms, add or drop a party. The court may also sever
any claim against a party." Fed. R. Civ. P. 21 (emphasis added).
Rule 20 supports the "broadest possible scope of action consistent with fairness to the
parties; joinder of claims, parties[,] and remedies is strongly encouraged." United Mine Workers

v. Gibbs, 383 U.S. 715, 724 (1966). "[T]he rule should be construed in light of its purpose,
which 'is to promote trial convenience and expedite the final determination of disputes, thereby
preventing multiple lawsuits."' Sava/ v. BL Ltd, 710 F.2d 1027, 1031 (4th Cir. 1983) (quoting

Mosley v. General Motors Corp., 497 F.2d 1330, 1332 (8th Cir. 1974)). The transaction or
occurrence test of Rule 20 generally proceeds on a case by case basis, and permits all
"reasonably related claims ... to be tried in a single proceeding." Id If the joinder of parties or
claims will result in prejudice, expense, or delay, the Court has discretion to deny joinder.

Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 218 n.5 (4th Cir. 2007). The propriety of
joinder rests within the sound discretion of the trial court. Sava/, 710 F .2d at 1031.
"District courts across the country are split regarding the question of whether joinder of
unidentified defendants is appropriate" in cases alleging the use ofBitTorrent to share
copyrighted works. Third Degree Films, Inc. v. Does 1-108, No. DKC 11-3007, 2012 WL
1514807, at *2 (D. Md. April 27, 2012) (collecting cases). However, "[a] majority of courts ...
specifically have held that the properties of BitTorrent are insufficient to supportjoinder."

Patrick Collins, Inc. v. Does 1-10, No. 8:12cv00094, 2012 WL 1144980, at *5 (D. Md. Apr. 4,
2012) (collecting cases). Importantly, every case in this District has foundjoinder improper
when based on allegations of file-sharing using BitTorrent. See Raw Films, Ltd v. Does 1-32,

7

No. 3:1lcv532,2011 WL 6182025, at *2 (E.D. Va. Oct. 5, 2011) (finding the allegation that
defendants used BitTorrent to copy and reproduce copyrighted material insufficient to support
joinder because "[m ]erely committing the same type of violation in the same way does not link
defendants together for purposes of joinder"); see also Malibu Media, LLC v. John Does 1-23,
878 F. Supp. 2d 628, 632 (E.D. Va. 2012) ("Where, as here, a plaintiff seeks to join several
defendants in an action based on filesharing activity, ... a plaintiff must allege facts that permit
the court at least to infer some actual, concerted exchange of data between those defendants.");

Hard Drive Prods., Inc. v. Does 1-30, No. 2:1lcv345,2011 WL 4915551, at *3 (E.D. Va. Oct.
17, 2011) (findingjoinder improper in a case alleging that defendants used BitTorrent to copy
and reproduce copyrighted material); K-Beech, Inc. v. John Does 1-85, No. 3:1lcv469,2011
WL 10646535, at *2 (E.D. Va. Oct. 13, 2011) (same).
The Fourth Circuit has not ruled on the issue of joinder in cases involving BitTorrent filesharing, and the only court of appeals to consider the matter found joinder improper. See AF

Holdings, LLC v. Does 1-1058, 752 F.3d 990, 998 (D.C. Cir. 2014). That court, although
assuming that "two individuals who participate in the same swarm at the same time are part of
the same series of transactions within the meaning of Rule 20(a)(2)" held that "[Plaintiff] has
provided no reason to think that the Doe defendants it named in this lawsuit were ever
participating in the same swarm at the same time." Id

B.

LHF Fails to Allege that the Defendants Participated in the Same
Transaction or Occurrence

Consistent with the majority of district courts in the country and every court in this
District, the Court concludes that LHF's allegations that the Defendants used BitTorrent to share
copyrighted work do not satisfy Rule 20 requirements for joinder of defendants. LHF cannot
satisfy federal rules by simply labelling, in a conclusory fashion, the Defendants' conduct as part
8

of the "same swarm."6 See Malibu Media, 878 F. Supp. 2d at 632. Without more, LHF fails to
establish that the Defendants participated in the same "transaction, occurrence, or series of
transactions or occurrences," as required for joinder under Rule 20. Fed. R. Civ. P. 20(a)(2)(A).
Although the transaction or occurrence test of Rule 20 permits all "reasonably related claims ...
to be tried in a single proceeding," Sava/ v. BL Ltd, 710 F.2d 1027, 1031 (4th Cir. 1983),
"[m]erely committing the same type of violation in the same way does not link defendants
together for purposes ofjoinder," Raw Films, 2011WL6182025, at *2.
Ultimately, LHF has merely alleged that the Defendants used BitTorrent to download and
share pieces of the Movie. LHF has not included any facts that suggest the Defendants shared
those pieces with each other, thus engaging in the same transaction or occurrence. LHF's
Complaint itself states that, given the nature ofBitTorrent, even members of the "same swarm"
are "stealing copyrighted material from many ... ISPs in numerous jurisdictions." (Compl. 3.)
Given the numerous individuals who could have been involved in the data transfers at issue here
and the lack of specific factual allegations that these individuals shared data with each other, the
Court concludes that LHF's allegations cannot supportjoinder. See Malibu Media, LLC v.
Does 1-34, No. PJM 12-1195, 2012 WL 1792979, at *2 (D. Md. May 15, 2012) ("Plaintiff never
asserts that Defendants downloaded or uploaded the same seed piece exclusively among
themselves and thereby acted in concert. Moreover, the distributed nature of the BitTorrent
network means that at least some of the Doe Defendants likely obtained the seed piece at issue
from users not named in the Complaint."); see also Media Products, Inc. v. John Does 1-44, No.
6

LHF's bald assertions that "Defendants participated in a collective and interdependent
manner with other Defendants," and that "[b]y participating in the same swarm, each Defendant
participated in the same transaction, occurrence[,] or series of transactions or occurrences as the
other Defendants in the swarm," (Compl. 5-6), do not persuade. LHF fails to state any specific
facts showing actual or concerted activity from which the Court could infer that joinder would be
proper. See Malibu Media, 878 F. Supp. 2d at 632.
9

PJM 12-1292, 2012 WL 1658581, at *2 (D. Md. May 10, 2012) (same); Third Degree Films,

Inc. v. John Does 1-32, No. PJM 12-1298, 2012 WL 1658682, at *2 (D. Md. May 10, 2012)
(same); Digital Sin, Inc. v. John Does 1-88, No. PJM 12-24, 2012 WL 1641035, at *2 (D. Md.
May 8, 2012) (same). 7 The Court will sua sponte sever the Defendants in this case.

C.

Even ifLHF Properly Invoked Rule 20(a), Rule 20(b) Might Support
Discretionary Severance of the Defendants

While the Court does not so find here, it notes that Federal Rule of Civil Procedure 20(b)
allows a court to order separate trials to protect a party "against embarrassment, delay, expense,
or other prejudice." 8 Fed. R. Civ. P. 20(b). Because LHF, bringing several similar cases, seeks
additional time "to complete settlements where possible and service of others that do not settle,"
(Mot. Extend 2), this Court might consider granting discretionary severance even if the

7

Many of the courts that found joinder improper relied in part on the length of time over
which the alleged file-sharing occurred in holding that those plaintiffs' complaints failed to meet
the transaction or occurrence test of Federal Rule 20. See, e.g., AF Holdings, 752 F.3d at 998
("Two individuals who downloaded the same file five months apart are exceedingly unlikely to
have had any interaction with one another whatsoever."); Malibu Media, 878 F. Supp. 2d at 632
("[T]he spans of time [of two to three months] shown in plaintiffs' investigations make it
difficult to draw the conclusion that there has been any actual exchange of data between and
among the defendants in this case."). While it constitutes a factor worth considering, this Court
does not find the length of time over which a defendant's use of BitTorrent occurred dispositive
in determining the propriety of joinder. Regardless of the length of time over which the alleged
infringement transpired, a plaintiff attempting to join multiple defendants must provide plausible
factual allegations supporting an inference that those defendants participated in the same
"transaction, occurrence, or series of transactions or occurrences." Fed. R. Civ. P. 20(a)(2)(A).
Thus, although the purported copyright infringement in this case allegedly occurred over
the span of nine days rather than several months, LHF still fails to "allege facts that permit the
[C]ourt at least to infer some actual, concerted exchange of data" among the Defendants in this
case. See Malibu Media, 878 F. Supp. 2d at 632. LHF asserts that all the Defendants were
members of the "same swarm," but, as with the cases discussed above, LHF never alleges facts
that indicate any direct exchange of data among these twenty-four individuals.
8

Rule 20(b) grants a court the discretion to sever parties as follows: "The court may
issue orders-including an order for separate trials-to protect a party against embarrassment,
delay, expense, or other prejudice that arises from including a person against whom the party
asserts no claim and who asserts no claim against the party." Fed. R. Civ. P. 20(b).
10

conditions of Rule 20(a) had been met. LHF makes the same representations in identical filings
in two other cases before this Court. (Compare Mot. Extend 2, ECF No. 11, with LHF v. Does

1-18, 3:16cv274 Mot. Extend 2, ECF No. 11, and LHFv. Does 1-20, 3:16cv284 Mot. Extend 2,
ECF No. 11.)
Like others, this Court becomes wary of statements about pre-answer settlement when
plaintiffs sue under a BitTorrent-based copyright claim. In this division, a dubious court already
has commented that other plaintiffs, in a nearly identical series of cases, "seemingly have no
interest in actually litigating the cases, but rather simply have used the Court and its subpoena
powers to obtain sufficient information to shake down the John Does." Raw Films, 2011 WL
6182025, at *3.
Other courts go further. Considering the potential to coerce unjust settlements alongside
the fact that each defendant might require a "mini-trial" about what information it did or did not
share, courts have condemned joinder because the enormous burden of trial for the joined
defendants would "'completely defeat[] any supposed benefit from the joinder of all Does ...
and would substantially prejudice defendants and the administration of justice. "'9 Patrick

9

Although this Court does not see bad faith in this case, this Court questions a litigation
practice that potentially allows private citizens to be named-wrongly-as infringers. This
division has already seen one series of BitTorrent cases brought by different counsel where pro
se defendants sought refuge from aggressive settlement techniques. See Raw Films, 2011 WL
6182025, at *3 (ordering plaintiff to show cause why conduct, including directly contacting
defendants and demanding payment in settlement of asserted copyright infringement claims,
does not violate Federal Rule of Civil Procedure 11).
Any court must be mindful of litigation patterns or practices that could cross appropriate
lines, especially when it involves unrepresented parties. See Fed. R. Civ. P. 1 l(b) ("By
presenting to the court a pleading, written motion, or other paper ... an attorney or
unrepresented party certifies that ... it is not being presented for any improper purpose, such as
to harass, cause unnecessary delay, or needlessly increase the cost of litigation .... ");Fed. R.
Civ. P. l l(c) ("If, after notice and a reasonable opportunity to respond, the court determines that
Rule 11 (b) has been violated, the court may impose an appropriate sanction on any attorney, law
firm, or party that violated the rule or is responsible for the violation.").
11

Collins, Inc., 2012 WL 1144980, at *7 (second alteration in original) (quoting Hard Drive Prods.
v. Does 1-188, 809 F. Supp. 2d 1150, 1164 (N.D. Cal. 2011)). The rationale for the $400 filing
fee-revenue-sharing and curbing the filing of frivolous suits 10-also supports discretionary
severance. Patrick Collins, Inc., 941 F. Supp. 2d at 166 (citing cases that severed defendants due
to the substantial increase in judicial workload relative to the avoidance of up to $100,000 in
filing fees). Such considerations, at least one court persuasively has found, would support
discretionary severance of defendants. Patrick Collins, Inc., 2012 WL 1144980, at *7 (noting
that even if Rule 20(a) joinder conditions had been met, discretionary severance under Rule
20(b) would be proper because "joinder here is inefficient, raises significant manageability
problems, and is unduly prejudicial to the defendants"). This record readily could support
discretionary severance.

IV. Third Motion to Extend
That said, the Court will grant LHF' s Third Motion to Extend Time to the extent it
pertains to the first named defendant. Federal Rule of Civil Procedure 4(m) governs the time for
service of process. Rule 4(m) provides, in relevant part:

If a defendant is not served within 90 days after the complaint is filed, the courton 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 plaintiffshows 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). Under Rule 4(m), ifLHF demonstrates "good cause" for
failing to serve the first named defendant, the Court must grant an extension of time. If, on the

10

"The filing fee, which is required under28 U.S.C. § 1914(a), serves two salutary
purposes. First, it is a revenue sharing measure. Second,§ 1914(a) acts as a threshold barrier,
albeit a modest one, against the filing of frivolous or otherwise meritless lawsuits." Patrick
Collins, Inc. v. John Does 1-38, 941 F. Supp. 2d 153, 166 (D. Mass. 2013) (internal citations and
quotation marks omitted).
12

other hand, LHF fails to demonstrate "good cause," the Court may still, in its discretion, permit
an extension of time. Judge Ellis of this District recently endorsed this plain reading of
Rule 4(m):
As Rule 4(m)'s plain language makes clear, the presence of "good cause" for the
failure to serve process on time renders mandatory a district court's extension of
time to serve process. Yet, the portion of Rule 4(m) permitting a district court to
"order that service be made within a specified time" is in no way connected to any
good cause requirement. Thus, Rule 4(m) unambiguously permits an extension of
time to serve process regardless [o:fJ whether a plaintiff can show good cause for
delay.
Robinson v. GD C, Inc., No. 1:16cvl 74, 2016 WL 3461285, at *3 (E.D. Va. June 21, 2016).1 1
Bearing this construction of Rule 4(m) in mind, the Court declines to determine whether
LHF can demonstrate good cause for its failure to serve the first named defendant within the
90-day time proscribed by the Rule. Because this case remains in an early stage of litigation, in
which no defendant has filed an answer or other responsive pleading, the Court sees no prejudice
that could result from a brief extension of time in order to serve one defendant.
Pursuant to Federal Rule of Civil Procedure 4(m), the Court will grant the Third Motion
to Extend Time. The Court will extend the time for service of the first named defendant until
February 14, 2017. The Court advises LHF, however, that any further requests for additional
time to serve defendant must show good cause for the Court to grant the extension.

11

"[W]ith respect to the pre-2015 Amendment version of Rule 4(m)," the Fourth Circuit
held "that 'if the complaint is not served within [90] days after it is filed, the complaint must be
dismissed absent a showing of good cause.'" Robinson, 2016 WL 3461285, at *3 (quoting
Mendez v. Elliot, 45 F.3d 75, 78 (4th Cir. 1995)). As Judge Ellis pointed out in Robinson, "[t]he
Fourth Circuit reached this conclusion by assuming, without discussion, that Rule 4(m) had the
same meaning as its predecessor, the former Rule 4(j), despite clear indications in the Advisory
Committee Notes to the contrary.". Id. (citing 146 F.R.D. 401, 573 ("The new subdivision ...
authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision
even if there is no good cause shown.")). Even if Mendez had remained good law, it "is no
longer controlling authority in this circuit" following "the promulgation of the 2015 Amendment
to Rule 4(m)." Id.
13

V. Conclusion
For the forego ing reasons, the Court wi ll: ( 1) grant the Third Motion to Extend Time, to
the extent it pertains to the first named defendant, (ECF No. 11 ); (2) deny as moot the Second
Motion to Extend, (ECF No. 8); (3) deny as moot the Motion for Di scovery, (ECF No. 9);
(4) deny as moot the Motion fo r Leave to File, (ECF No. 12); (5) order LHF to file an amended
complaint w ithin fourteen (14) days of entry of this Memorandum Opinion and Order; (6) sever
and dismiss without prejudice all defendants except the first named defendant; and, (7) quash
any subpoenas issued pursuant to its May 26, 20 16 Order, (ECF No. 5), to the extent the
subpoenas pertain to any defendants other than the first named defendant.
An appropriate Order sha ll issue.

M.H I
United Stat s

1-l

Date: \
11. j 1.Dl4
Richmond, Virginia

14