ME2 Productions, Inc v. Doe 1 et al

Filing 24

ORDER denying plaintiff's 22 Motion for Extension of Time and Dismissing Case by Judge Robert S. Lasnik.(RS) Modified on 2/16/2017/cc Linda Maiga (RS).

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 ME2 PRODUCTIONS, INC., 8 9 10 11 Plaintiff, Case No. C16-1776RSL v. JOHN DUNCAN, et al., ORDER DENYING MOTION FOR EXTENSION OF TIME AND DISMISSING CASE Defendants. 12 13 This matter comes before the Court on plaintiff’s motion for an extension of time 14 in which to serve the complaint. Dkt. # 22. A party generally has 90 days after a 15 complaint is filed in which to serve the defendant. Fed. R. Civ. P. 4(m). It can be 16 challenging to meet this deadline in BitTorrent cases where plaintiff must first conduct 17 discovery from the ISP before it can identify, name, and serve the defendant. It can be 18 done, however, and the Court has repeatedly indicated that it expects at least a good faith 19 effort to comply with the service deadline. Where the motion for leave to conduct 20 expedited discovery is filed and granted in a timely manner and the ISP responds 21 promptly, plaintiff has some time – a few days or weeks depending on the production date 22 – in which to pursue an amicable resolution of the case before utilizing the waiver of 23 service procedure set forth in Fed. R. Civ. P. 4(d). If plaintiff opts to spend additional 24 time negotiating with persons who have not yet been named as defendants, it would still 25 have time to engage a process server and accomplish service in a timely manner. In these 26 ORDER DENYING MOTION FOR EXTENSION OF TIME AND DISMISSING CASE - 1 1 scenarios, an extension of time should be necessary only if a defendant failed to waive or 2 was dodging service. 3 Here, plaintiff is not seeking an extension of time because the Court delayed in 4 granting the discovery request, because the ISP delayed in producing the necessary 5 information, or because defendants impeded timely service. Despite obtaining the 6 necessary contact information more than a month before the February 14, 2017, service 7 deadline, there is no evidence that plaintiff made any attempt to timely serve.1 Rather, 8 plaintiff opted to spend almost six weeks informally communicating with the subscribers 9 before filing an amended complaint and seeking an extension of the service deadline. 10 Good cause has not been shown. Despite prior warnings (see CELL Film 11 Holdings, LLC v. Rogers, C16-1180RSL, Dkt. # 13 at 2 (W.D. Wash. Oct. 31, 2016)), 12 plaintiff has not adjusted its procedures sufficiently to account for the known and 13 expected delays in accomplishing service in these cases. Nor has it made any effort to 14 accomplish service prior to the expiration of the service deadline. Plaintiff’s apparent 15 preference for weeks of informal discussions does not excuse its failure to comply with 16 the Federal Rules of Civil Procedure. The Court finds that an extension of the service 17 deadline is not warranted. This action is hereby DISMISSED without prejudice for failure 18 to comply with Fed. R. Civ. P. 4(m). 19 20 Dated this 16th day of February, 2017. 21 A 22 Robert S. Lasnik United States District Judge 23 24 25 26 1 Plaintiff’s motion states that it “is promptly mailing out waivers of service.” Dkt. # 22 at 3. There is no explanation for why this step was not taken in a timely manner, nor is there any evidence to support the bald assertion of intended action. Dkt. # 23. ORDER DENYING MOTION FOR EXTENSION OF TIME AND DISMISSING CASE - 2

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