ME2 Productions Inc v. Doe 1 et al
Filing
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ORDER denying Plaintiff's 19 Motion for Leave to Permit Alternative Service; granting alternative request for a fourteen day extension of the service deadline, signed by Judge Robert S. Lasnik. (SWT)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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ME2 PRODUCTIONS, INC.,
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Plaintiff,
Case No. C17-0465RSL
v.
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PAUL REARDON, et al.,
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ORDER DENYING LEAVE TO
SERVE BY MAIL
Defendants.
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This matter comes before the Court on plaintiff’s “Motion to Permit Alternative
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Mail Service or for Additional Time to Attempt Process Service.” Dkt. # 19. Plaintiff has
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not served four of the named defendants, and the 90 day deadline for service expired on
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June 20, 2017. Two days later, plaintiff filed this motion seeking leave to serve
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Mahamadou Dukureh and Paul Lysaker by mail and an extension of time in which to
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effect service on Raul Gonzales and Jaymee Torres.
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A. Service by Mail
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Federal Rule of Procedure 4(e)(l) allows plaintiff to effect service “pursuant to the
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law of the state in which the district is located.” Washington-law authorizes service by
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mail upon a showing that (a) defendant has made reasonably diligent efforts at personal
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service (Rodriguez v. James-Jackson, 127 Wn. App. 139, 140 (2005)), and (b) defendant
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resides in the state but has concealed herself in order to avoid service of process (RCW
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4.28.100(4)). With regards to defendants Dukureh and Lysaker, plaintiff has made
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multiple unsuccessful attempts to personally serve defendants at the addresses specified
ORDER DENYING LEAVE TO SERVE BY MAIL - 1
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on the summonses. It argues that its lack of success means that defendants are dodging
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service. Plaintiff is incorrect for two reasons.
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First, there is no indication that the addresses used by the process server are, in
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fact, connected to the named defendants. In its motion, plaintiff states that the addresses
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have been confirmed by the ISP “and/or investigative databases,” citing counsel’s
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declaration as support. Dkt. # 19 at 2. The declaration is silent regarding what information
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was provided by the ISP and what investigation was done to confirm that the defendants
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could be found at these addresses.1 Nor is there anything in the process server’s notes that
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ties the defendants to these addresses: there are no names on the intercom in the
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apartment building in which Dukureh has been sought, nor is the addressee of the UPS
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package left at the Redmond house identified. Even if the Court assumes that Comcast
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provided the addresses listed on the summonses, the information was provided in relation
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to internet usage in February 2017, more than four months ago. Absent some evidence
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from which one could reasonably conclude that the defendants currently reside at, or are
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associated with, the addresses used by the process server, the Court will not assume that
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service by mail will effectively notify defendants of this lawsuit.
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Second, there is no evidence from which one could reasonably conclude that
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defendants are concealing themselves for the purpose of avoiding service. None of the
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entries made by the process server gives rise to an inference that the apartment (Dukureh)
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or home (Lysaker) was occupied when the process server arrived and that the residents
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refused to answer the door. The prerequisites for allowing service by mail are not,
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therefore, satisfied. There being no reason to believe that service by mail at the addresses
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used by the process server will effectively notify defendants of the claims against them,
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the motion for leave to serve by mail is DENIED.
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The property records of King County and the corporate database of the Secretary of
State link the home at 13814 NE 70th Pl. to a Carl Lombardi, not defendant Lysaker.
ORDER DENYING LEAVE TO SERVE BY MAIL - 2
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B. Extension of Service Deadline
It can be challenging to meet the 90 day service deadline in BitTorrent cases where
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plaintiff must first conduct discovery from the ISP before it can identify, name, and serve
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the defendant. It can be done, however, and the Court has repeatedly indicated that it
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expects at least a good faith effort to comply with the service deadline. In this case, the
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motion for leave to conduct expedited discovery was granted in a timely manner, and
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plaintiff has not indicated that there was any delay in the ISP’s response. As the Court has
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previously noted, in these circumstances, an extension of time should be necessary only if
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a defendant failed to waive or was dodging service.
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Plaintiff asserts that Dukureh, Lysaker, Gonzales, and Torres “elected not to return
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the request for waiver” of service under Fed. R. Civ. P. 4(d). Dkt. # 19 at 2. There is no
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evidence that waivers were ever sent, however, much less that they were sent in a timely
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manner. The only evidence of attempted service in the record shows that plaintiff engaged
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a process server twelve days before the deadline for service. Plaintiff has not shown good
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cause for an extension of time. Nevertheless, a brief extension of the service deadline will
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be granted in this case because the Court had not previously considered this situation.
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In the future, however, similar evidentiary showings will result in the dismissal of the
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claims against the unserved defendants.
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For all of the foregoing reasons, plaintiff’s request for permission to serve
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defendants Dukureh and Lysaker by mail is DENIED. The alternative request for a
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fourteen day extension of the service deadline is GRANTED. Plaintiff shall, on or before
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July 5, 2017, file proofs of service as to defendants Dukureh, Lysaker, Gonzales, and
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Torres or a second motion detailing the efforts made toward effecting personal service
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and establishing good cause for a further extension of time. Failure to timely file or to
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make the required showing will result in dismissal of the claims against any unserved
ORDER DENYING LEAVE TO SERVE BY MAIL - 3
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defendants.
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Dated this 28th day of June, 2017.
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A
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Robert S. Lasnik
United States District Judge
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ORDER DENYING LEAVE TO SERVE BY MAIL - 4
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