Malibu Media, LLC v. Doe

          ORDER GRANTING MOTION TO DISMISS

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         In this copyright infringement action involving online piracy of pornographic films, defendant moves to dismiss the complaint for insufficient service of process. For the reasons stated below, defendant’s motion is Granted.

         STATEMENT

         Since September 2015, plaintiff Malibu Media, LLC has filed 178 copyright infringement actions in this district. The complaints in all such actions are virtually identical. In this action, Malibu Media accuses defendant, an Internet subscriber assigned IP address 98.210.99.78 by his Internet service provider, Comcast Communications, Inc., of copying and distributing forty-two of Malibu Media’s copyrighted pornographic films between May 2014 and July 2015. As with each of Malibu Media’s actions, it accuses defendant of using a digital file-sharing platform known as BitTorrent to download, copy, and distribute these works.

         When it commenced this action on September 27, 2015, Malibu Media could only identify defendant by his Internet Protocol address, which is a numerical identifier assigned to each Internet service subscriber by Comcast. In November 2015, Malibu Media sought leave to serve a third-party subpoena on Comcast for defendant’s name and address for the purpose of effectuating service, which leave was granted, subject to a protective order requiring Malibu Media to file any and all documents including defendant’s identifying information under seal, with all such information redacted on the public docket.

         Malibu Media issued the subpoena two days later. In December, defendant retained counsel, who emailed Malibu Media to advise of the representation, although Malibu Media had not yet received Comcast’s response.

         On January 6, Malibu Media received Comcast’s response. It filed a motion for leave to file an amended complaint (identifying defendant by name) under seal on January 22, which leave was granted on January 26 (Dkt. Nos. 15, 17). The deadline to effect service pursuant to Rule 4(m) was January 25, but the order granting the sealing motion extended that deadline to February 6. Malibu Media’s process server served defendant on February 7. Malibu Media never requested a further extension.

         Defendant now moves to dismiss the action for insufficient service of process. This order follows full briefing and oral argument.

         ANALYSIS

         Prior to its amendment in December 2015, Rule 4(m) set forth the time limit for service of process as follows:

If a defendant is not served within 120 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1).^[*]

         Malibu Media concedes that it failed to timely serve defendant by the extended deadline of February 6 and failed to request a further extension. It further acknowledges that, due to a scrivener’s error, the return of service erroneously stated that service occurred at 4:23 a.m., rather than 4:23 p.m. It argues that good cause exists to either forgive the untimely service or to permit Malibu Media another opportunity to perfect service.

         It took Malibu Media eighteen days from receiving defendant’s identifying information before it moved to file its amended complaint under seal, and it blames defense counsel for that delay. Malibu Media contends in its brief (but not in any sworn statement) that its counsel asked defense counsel “on a couple occasions” beginning on January 6 (after learning defendant’s identity) if defense counsel would accept service for defendant and further contends that defense counsel’s failure to respond until January 21 led to these delays (Pl.’s Opp. at 3). Defense counsel, in a sworn declaration, avers that ...