United States District Court, C.D. California
KERRY YOUNG, et al.
BROADCAST MUSIC, INC., et al
Kerry Young, an Individual doing business as LA City Records, Plaintiff, Pro se, Hemet, CA.
Darrell Young, an Individual, Plaintiff, Pro se, Hemet, CA.
For Broadcast Music Inc, a New York Corporation, Defendant: Ryan Dow Austin, LEAD ATTORNEY, Milbank Tweed Hadley and McCloy LLP, Los Angeles, CA.
For Itunes, Defendant: David R Eberhart, LEAD ATTORNEY, O'Melveny and Myers LLP, San Francisco, CA.
CIVIL MINUTES -- GENERAL
HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE.
PROCEEDINGS: MINUTE ORDER GRANTING DEFENDANT APPLE, INC.'S UNOPPOSED MOTION TO DISMISS (DOC. NO. 24), DISMISSING COMPLAINT AS TO REMAINING DEFENDANTS FOR FAILURE TO PROSECUTE, AND DENYING AS MOOT DEFENDANT BROADCAST MUSIC, INC.'S MOTION TO DISMISS (DOC. NO. 31). (IN CHAMBERS)
On December 4, 2013 Plaintiffs Kerry and Darrell Young filed an in forma pauperis Complaint (Doc. No. 4) seeking a minimum of $500 million in damages for Defendants' alleged infringement of Plaintiffs' copyrights in a song and two albums. It does not appear, however, that the Complaint has ever been served properly on the Defendants, one of which (Apple, Inc.) has now filed a Motion to Dismiss (Doc. No. 24). For the following reasons, the Court GRANTS Apple's Motion, which Plaintiffs failed to oppose, and -- on account of Plaintiffs' failure to prosecute -- additionally dismisses the Complaint as to all remaining Defendants, WITHOUT PREJUDICE. Defendant Broadcast Music, Inc.'s Motion to Dismiss (Doc. No. 31) is therefore DENIED AS MOOT.
Soon after Plaintiffs filed their Complaint, they mailed the Court a letter regarding, among other things, their counsel's allegedly deficient performance. The Court rejected the letter as submitted improperly. See L.R. 83-2.5 (" [P]arties to any action . . . shall refrain from writing letters to the judge . . . . All matters must be called to a judge's attention by appropriate application or motion filed in compliance with these Local Rules.") The Court received two more letters from Plaintiffs, on February 7 and 25, again in violation of the Local Rules. On June 26, Plaintiffs' counsel moved to withdraw from the case (see Doc. No. 14), and simultaneously to allow his clients an extension of time to serve the Complaint on Defendants (see Doc. No. 15). On July 8, the Court allowed counsel to withdraw, and extended the time by which Plaintiffs were required to serve the Complaint on Defendants to September 8 (see July 8 Minute Order (Doc. No. 18)). See Fed.R.Civ.P. 4(m) (" If a defendant is not served within 120 days after the complaint is filed, the court . . . must dismiss the action . . . or order that service be made within a specified time."). The Court notified Plaintiffs that failure to serve the Complaint by that date could result in the dismissal of this action for failure to prosecute. (Id.)
When the deadline came and went, the Court ordered Plaintiffs to show cause why this action should not be dismissed. (See September 26 Minute Order (Doc. No. 22).) Plaintiffs filed a Response (Doc. No. 23) - discussed below - and then sent more letters to the Court. Defendant Apple, Inc. filed its Motion to Dismiss on November 12, with a hearing date of December 15. Plaintiffs were required to, but did not, file an opposition to that Motion on or before November 24. See L.R. 7-9.
When a party fails to file a timely opposition to a motion, the Court deems that party to have consented to the relief requested in the motion. See L.R. 7-12 (" The failure to file any required document . . . may be deemed consent to the granting . . . of the motion . . . .") One of the grounds on which Apple moved to dismiss is Plaintiffs' failure to serve the Complaint properly on it (see Mot. to Dismiss at 7), a basis that is dispositive of the entire action as to Apple. As Plaintiffs did not oppose Apple's Motion, the Court GRANTS the Motion on the ground that Plaintiffs failed to serve the Complaint timely on Apple. The Complaint is dismissed as to Apple WITHOUT PREJUDICE. See Fed.R.Civ.P. 4(m) (" If a defendant is not served . . . the court . . . must dismiss the action without prejudice against that defendant . . . .").
As to the remaining Defendants, the Court noted earlier that Plaintiffs filed a Response to its order to show cause why this action should not be dismissed for failure to prosecute. In it, Plaintiffs reiterated their grievances with their former counsel (see Response at 2-4), noted the expense of using a process server (see Response at 5), and attached postal receipts meant to evince their attempt to serve Defendants -- or to seek a waiver of service, per Federal Rule of Civil Procedure 4(d) (see Ex. A to Response). Plaintiffs' receipts, however, indicate that Plaintiffs did not comply with the Court's July 8 Minute Order: rather than serve Defendants on or before September 8, the receipts show at most that Plaintiffs attempted service (or to seek a waiver thereof) on October 17 -- over a month after the Court's extended deadline, and 318 days after filing the Complaint.
The Court is not unsympathetic to Plaintiffs' complaints about their former counsel, but this Court, in this action, is not a forum in which to litigate whether Plaintiffs got their money's worth in services from their counsel before his withdrawal. Nor is the Court blind to the difficulties Plaintiffs face continuing their case without counsel. See Jacobsen v. Filler, 790 F.2d 1362, 1365 n.5 (9th Cir. 1986) (" 'The hazards which beset a layman when he seeks to represent himself are obvious.'" (quoting United States v. Pinkey, 548 F.2d 305, 311 (10th Cir. 1977))). Nevertheless, the Court's rules apply equally to litigants represented by counsel and litigants representing themselves. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), rev'd on other grounds by, Lacey v. Maricopa Cnty., 693 F.3d 896, 925 (9th Cir. 2012) (en banc). Federal Rule of Civil Procedure 4(m) dictates that when plaintiffs fail to serve defendants timely, the Court must either dismiss an action without prejudice, or extend the deadline for service. Fed.R.Civ.P. 4(m). The Court has already done the latter in this case. Accordingly, the Complaint is DISMISSED as to the remaining Defendants, WITHOUT PREJUDICE. Broadcast Music's Motion to Dismiss is DENIED AS MOOT.
IT IS SO ...