LHF Productions Inc v. Doe 1 et al

Filing 14

ORDER granting in part and denying in part plaintiff's 12 Motion for Extension of Time by Judge Ricardo S Martinez.(RS)

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  1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 LHF PRODUCTIONS, INC., 11 Plaintiff, v. 12 13 14 Case No. C17-254 RSM ORDER GRANTING IN PART AND DENYING IN PART MOTION TO EXTEND TIME TO SERVE COMPLAINT DOE 1, et al., Defendants. 15 16 This matter comes before the Court on Plaintiff LHF Productions, Inc.’s (“LHF”) motion 17 for an extension of time to serve its Amended Complaint. Dkt. #12. For the reasons discussed 18 herein, LHF’s motion is GRANTED in part and DENIED in part. 19 20 LHF filed its Complaint on February 17, 2017. Dkt. #1. In its Complaint, LHF alleged 21 eighteen Doe Defendants participated in the same BitTorrent “swarm” to infringe the same 22 unique copy of the movie London Has Fallen. Id. ¶¶ 12-14, 18, 23, 28. Because the identities of 23 the Doe Defendants were unknown, LHF filed, and the Court granted, a motion for limited 24 expedited discovery. Dkts. #5 and #8. This limited expedited discovery allowed LHF to serve a 25 26 27 Rule 45 subpoena on identified Internet Service Providers (“ISP”s), who would in turn provide customer information associated with particular Internet Protocol (“IP”) addresses to LHF. Here, 28 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO EXTEND TIME TO SERVE COMPLAINT — 1                            1 the Court granted LHF’s motion for expedited discovery on March 22, 2017. See Dkt. #8. LHF 2 notified the identified ISPs of the Rule 45 subpoena that same day, and the ISPs were given until 3 April 24, 2017, to produce the requested subscriber information. See Dkt. #13, Ex. A at 2. 4 Under Rule 4(m) of the Federal Rules of Civil Procedure, LHF had 90 days, in this case 5 6 until May 17, 2017, to serve its complaint on the identified defendants. See FED. R. CIV. P. 4(m). 7 However, “due to a delivery issue,” LHF explains it did not receive the identity of subscribers 8 associated with a particular IP address until May 2, 2017. Dkt. #12 at 2. As a result, LHF 9 contends it did not have enough time to notify the identified subscribers of its lawsuit, nor did it 10 have enough time to determine if a subscriber is the appropriate defendant. Id. at 2-3. LHF 11 12 further explains that because identified subscribers may be “sensitive to being identified in this 13 case,” it usually sends subscribers “multiple written notices” in an effort to either resolve the 14 matter, or provide subscribers an opportunity to identify the party responsible for the alleged 15 copyright infringement. Id. at 2. Given these circumstances, LHF asks the Court for a 60-day 16 extension of time to serve its Amended Complaint. The Court does not agree that a 60-day 17 18 extension of time is warranted. 19 While courts must extend the time for service where a plaintiff shows good cause for 20 failure to serve within the required timeframe, LHF has not shown good cause exists to grant a 21 60-day extension. FED. R. CIV. P. 4(m). As an initial matter, the Court notes the ISP did not 22 23 unexpectedly delay identifying its subscribers. LHF has submitted an email chain, see Dkt. #13, 24 Ex. C, which demonstrates LHF knew of the ISP’s need for an extension of time on March 28, 25 2017. LHF was not only aware of the ISP’s need, it unilaterally granted the ISP’s request. This 26 extension of time moved the ISP’s production deadline from April 24, 2017, to May 3, 2017. As 27 a result, the three and a half weeks LHF would have had to serve the identified subscribers, was 28 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO EXTEND TIME TO SERVE COMPLAINT — 2                            1 shortened to two weeks. Given LHF’s unilateral decision to grant the ISP an extension of time, 2 the Court finds it disingenuous for LHF to now represent to the Court that an ISP “delivery 3 issue,” prevented them from receiving the requested subscriber information on time. The Court 4 also does not understand why, given LHF’s knowledge of the ISP’s eight-day delay, LHF did not 5 6 7 move the Court for an extension of time on March 28, 2017. Instead, LHF waited until the night before its 90-day window was set to close to seek a 60-day extension of time. See Dkt. #12. 8 LHF’s conduct within the two-week timeframe after it obtained the subscriber 9 identifications also concerns the Court. After obtaining subscriber identities, LHF did not amend 10 its Complaint and begin its attempts to serve the defendants. Instead, LHF engaged in what can 11 12 only be described as unsanctioned discovery. See Dkt. #13, Ex. E. LHF explains that it was not 13 until May 2, 2017, that it “first had the ability to notify the subscribers of the lawsuit, let alone 14 name the subscribers as the presumptive responsible party.” Dkt. #12 at 2. However, receipt of 15 subscriber identities is not, as LHF appears to think, an opportunity for it to “notify the 16 subscribers of the lawsuit.” That purpose is accomplished by the service of a complaint. And, if 17 18 LHF is not confident that it can name an identified subscriber as a defendant, it must turn to the 19 Court for recourse. LHF cannot circumvent the Federal Rules of Civil Procedure through its 20 own informal, unregulated discovery efforts. Expedited discovery was granted for the limited 21 purpose of obtaining the identities of the subscribers of the IP addresses that allegedly infringed 22 23 LHF’s copyright. As courts in this district have explained, if the information provided by an ISP 24 does not allow plaintiffs to identify a defendant, plaintiffs must seek an order for further limited 25 discovery from the Court. See Case No. C13-0228-RSM-RSL, Dkt. #10 at 7-8. LHF is thus 26 advised that the Court does not condone its use of “multiple written notices.” 27 Although the Court acknowledges a 90-day timeframe to identify and serve defendants in 28 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO EXTEND TIME TO SERVE COMPLAINT — 3                            1 BitTorrent cases can be challenging, timely service can nonetheless be accomplished. Here, 2 LHF had two weeks, between May 2, 2017, and May 17, 2017, within which to mail its requests 3 for waiver of service. However, instead of using those two weeks to comply with Rule 4(d), 4 LHF instead sent the identified subscribers one of its “multiple written notices.” See Dkt. #13, 5 6 Ex. E. While the Court does not condone unsanctioned discovery, rather than dismiss this matter, 7 the Court will grant LHF a 30-day extension, calculated from the date of the filing of this Order, 8 to accomplish service. 9 Dated this 19th day of May 2017. 10 A 11 12 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO EXTEND TIME TO SERVE COMPLAINT — 4                         

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