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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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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LHF PRODUCTIONS, INC.,

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Plaintiff,
v.

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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.

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This matter comes before the Court on Plaintiff LHF Productions, Inc.’s (“LHF”) motion

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for an extension of time to serve its Amended Complaint. Dkt. #12. For the reasons discussed

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herein, LHF’s motion is GRANTED in part and DENIED in part.

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LHF filed its Complaint on February 17, 2017. Dkt. #1. In its Complaint, LHF alleged

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eighteen Doe Defendants participated in the same BitTorrent “swarm” to infringe the same

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unique copy of the movie London Has Fallen. Id. ¶¶ 12-14, 18, 23, 28. Because the identities of

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the Doe Defendants were unknown, LHF filed, and the Court granted, a motion for limited

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expedited discovery. Dkts. #5 and #8. This limited expedited discovery allowed LHF to serve a

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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,

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ORDER GRANTING IN PART AND DENYING IN PART MOTION TO EXTEND TIME
TO SERVE COMPLAINT — 1

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the Court granted LHF’s motion for expedited discovery on March 22, 2017. See Dkt. #8. LHF

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notified the identified ISPs of the Rule 45 subpoena that same day, and the ISPs were given until

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April 24, 2017, to produce the requested subscriber information. See Dkt. #13, Ex. A at 2.

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Under Rule 4(m) of the Federal Rules of Civil Procedure, LHF had 90 days, in this case

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until May 17, 2017, to serve its complaint on the identified defendants. See FED. R. CIV. P. 4(m).

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However, “due to a delivery issue,” LHF explains it did not receive the identity of subscribers

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associated with a particular IP address until May 2, 2017. Dkt. #12 at 2. As a result, LHF

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contends it did not have enough time to notify the identified subscribers of its lawsuit, nor did it

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have enough time to determine if a subscriber is the appropriate defendant. Id. at 2-3. LHF

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further explains that because identified subscribers may be “sensitive to being identified in this

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case,” it usually sends subscribers “multiple written notices” in an effort to either resolve the

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matter, or provide subscribers an opportunity to identify the party responsible for the alleged

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copyright infringement. Id. at 2. Given these circumstances, LHF asks the Court for a 60-day

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extension of time to serve its Amended Complaint. The Court does not agree that a 60-day

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extension of time is warranted.

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While courts must extend the time for service where a plaintiff shows good cause for

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failure to serve within the required timeframe, LHF has not shown good cause exists to grant a

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60-day extension. FED. R. CIV. P. 4(m). As an initial matter, the Court notes the ISP did not

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unexpectedly delay identifying its subscribers. LHF has submitted an email chain, see Dkt. #13,

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Ex. C, which demonstrates LHF knew of the ISP’s need for an extension of time on March 28,

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2017. LHF was not only aware of the ISP’s need, it unilaterally granted the ISP’s request. This

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extension of time moved the ISP’s production deadline from April 24, 2017, to May 3, 2017. As

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a result, the three and a half weeks LHF would have had to serve the identified subscribers, was

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ORDER GRANTING IN PART AND DENYING IN PART MOTION TO EXTEND TIME
TO SERVE COMPLAINT — 2

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shortened to two weeks. Given LHF’s unilateral decision to grant the ISP an extension of time,

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the Court finds it disingenuous for LHF to now represent to the Court that an ISP “delivery

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issue,” prevented them from receiving the requested subscriber information on time. The Court

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also does not understand why, given LHF’s knowledge of the ISP’s eight-day delay, LHF did not

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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.

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LHF’s conduct within the two-week timeframe after it obtained the subscriber

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identifications also concerns the Court. After obtaining subscriber identities, LHF did not amend

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its Complaint and begin its attempts to serve the defendants. Instead, LHF engaged in what can

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only be described as unsanctioned discovery. See Dkt. #13, Ex. E. LHF explains that it was not

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until May 2, 2017, that it “first had the ability to notify the subscribers of the lawsuit, let alone

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name the subscribers as the presumptive responsible party.” Dkt. #12 at 2. However, receipt of

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subscriber identities is not, as LHF appears to think, an opportunity for it to “notify the

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subscribers of the lawsuit.” That purpose is accomplished by the service of a complaint. And, if

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LHF is not confident that it can name an identified subscriber as a defendant, it must turn to the

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Court for recourse. LHF cannot circumvent the Federal Rules of Civil Procedure through its

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own informal, unregulated discovery efforts. Expedited discovery was granted for the limited

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purpose of obtaining the identities of the subscribers of the IP addresses that allegedly infringed

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LHF’s copyright. As courts in this district have explained, if the information provided by an ISP

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does not allow plaintiffs to identify a defendant, plaintiffs must seek an order for further limited

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discovery from the Court. See Case No. C13-0228-RSM-RSL, Dkt. #10 at 7-8. LHF is thus

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advised that the Court does not condone its use of “multiple written notices.”

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Although the Court acknowledges a 90-day timeframe to identify and serve defendants in

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ORDER GRANTING IN PART AND DENYING IN PART MOTION TO EXTEND TIME
TO SERVE COMPLAINT — 3

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BitTorrent cases can be challenging, timely service can nonetheless be accomplished. Here,

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LHF had two weeks, between May 2, 2017, and May 17, 2017, within which to mail its requests

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for waiver of service. However, instead of using those two weeks to comply with Rule 4(d),

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LHF instead sent the identified subscribers one of its “multiple written notices.” See Dkt. #13,

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Ex. E. While the Court does not condone unsanctioned discovery, rather than dismiss this matter,

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the Court will grant LHF a 30-day extension, calculated from the date of the filing of this Order,

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to accomplish service.

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Dated this 19th day of May 2017.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER GRANTING IN PART AND DENYING IN PART MOTION TO EXTEND TIME
TO SERVE COMPLAINT — 4