IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 14, 2012
FIRST TIME VIDEOS, LLC,
The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
ORDER CONTINUING STATUS (PRETRIAL SCHEDULING) CONFERENCE
Plaintiff states in its Status Report filed August 8, 2012, in relevant part as follows:
Plaintiff is unable to serve the unidentified John Doe at this time. On December 30, 2011, Plaintiff filed its Complaint. (Doc. No. 1.) On January 6, 2011, Plaintiff filed its Amended Complaint. (Doc. No. 6.) Attached as Exhibit A to the Amended Complaint were a list of Internet Protocol addresses associated with John Doe and his co-conspirators. (Doc. No. 6-1.) Per the Amended Complaint, Plaintiff's agents observed these IP addresses unlawfully reproducing Plaintiff's copyrighted work via the BitTorrent protocol. As further stated, "Plaintiff cannot ascertain the identities of John Doe or his co-conspirators without information from their respective Internet Service Providers ('ISPs')." (Doc. No. 6 at ¶ 4.)
Due to this need for information, on January 12, 2012, Plaintiff filed its Ex Parte Application for Leave to Take Expedited Discovery requesting the ability to discover the identifying information of the IP address holders from the relevant ISPs. (Doc. No. 7.) On January 19, 2012, the Court issued its Order granting in part and denying in part Plaintiff's Application. (Doc. No. 9, "January 19 Order.") While not allowing Plaintiff to serve subpoenas on ISPs to identify the coconspirators-thus eliminating the possibility of naming and/or serving those individuals in this case-the Court did allow Plaintiff to obtain the identifying information of the account holder whose IP address was used by John Doe to infringe on Plaintiff's copyrighted works. (Doc. No. 9.) . . . .
On April 4, 2012, after discovering that the Court's January 19 Order erroneously identified the Internet Protocol relating to John Doe, Plaintiff filed its Motion for Administrative Relief for an Order Correcting a Clerical Error Under FRCP Rule 60(a) to allow Plaintiff to serve a subpoena on John Doe's Internet Service Provider, Comcast Cable Communications ("Comcast") to identify him (Doc. No. 16). On April 16, 2012, the Court corrected the Internet Protocol address (Doc. No. 18, "April 16 Order"). Subsequently, Plaintiff served a copy of the April 16 Order and the relevant subpoena on Comcast. . . .
Most recently, Plaintiff received notice from Comcast that, in light of the delay described above, the subscriber information related to John Doe was no longer in their records. As of now, therefore, that time-sensitive information no longer exists. Currently, Plaintiff is exploring its options in this case in light of Comcast's recent response.
(Status Report 1:33-3:6.)
These representations reveal this case is not ready to be scheduled. Therefore, the Status (Pretrial Scheduling) Conference scheduled for hearing on August 20, 2012, is continued to October 29, 2012, at 9:00 a.m. A further status report shall be filed no later than fourteen (14) days prior to the Status Conference, in which Plaintiff shall address its efforts to prosecute this action.
Further, if Plaintiff fails to take sufficient steps to identify John Doe prior to the October 29, 2012 Status Conference, Plaintiff shall show cause in its status report why this action should not be dismissed for failure of prosecution. This action may be dismissed with prejudice under Federal Rule of Civil Procedure 41(b) if Plaintiff fails to respond to this Order.
IT IS SO ORDERED.
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