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