E-Alert Case Updates
United States District Court dismisses claim for failure to effectuate timely service without a showing of good cause
Malibu Media, LLC v. Doe
In Malibu Media, LLC v. John Doe, Subscriber Assigned IP Address 18.104.22.168, the United States District Court for the District of Maryland dismissed a plaintiff’s copyright infringement claims for failure to serve timely the defendant. Writing the Court’s opinion, Judge Ellen L. Hollander held that the current body of Fourth Circuit case law required the plaintiff to show good cause as to why defendant was not timely served, or else face dismissal. The Court found that the plaintiff failed to show cause as to why the previously unknown defendant had yet to be served in this case, when the plaintiff had learned of the defendant’s identity almost an entire month before the plaintiff filed for an extension. The plaintiff’s complaint was, therefore, dismissed.
This case arises out of a copyright infringement action filed by Malibu Media, LLC (“Plaintiff”) against an unknown defendant (“Defendant”). When Plaintiff filed its action, it knew only the Defendant’s ISP address. At the same time Plaintiff filed its Complaint, it filed for leave of Court to subpoena Defendant’s identity from his ISP, Verizon FiOS (“Verizon”). Plaintiff’s motion was granted and Plaintiff served Verizon a subpoena seeking Defendant’s identity. Verizon produce Defendant’s identity within a the 120-day time limit that Plaintiff had to serve Defendant under Federal Rule of Civil Procedure 4 (m), which states: “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.” Plaintiff filed for an extension of time to serve Defendant because Verizon failed to reveal Defendant’s identity, which the Court granted. Because Verizon did not reveal Defendant’s identity, Plaintiff ultimately had to file four (4) separate motions to extend the time for service, each of which the Court granted. On December 22, 2014, Plaintiff filed for a fifth extension of time to serve Defendant, but conceded that it had learned Defendant’s identity on November 23, 2014 shortly after the Court granted Plaintiff a fourth extension. Plaintiff did not provide the Court with a reason why Defendant had yet to be served.
The Court denied Plaintiff’s motion for an extension of time, and dismissed its claim for failure to serve timely Defendant. The Court noted that the Fourth Circuit’s jurisprudence surrounding Rule 4 (m) is possibly in a state of flux. The Court examined this Circuit’s Rule 4 (m) jurisprudence, noting that the Fourth Circuit Court of Appeals’ decision in Mendez v. Elliott, 45 F.3d 75 (4th Cir. 1995) held that a trial court is required under the Federal Rules to dismiss a claim if the plaintiff has failed to serve the defendant within 120 days, absent a showing of good cause. The Court also noted that subsequent decisions by different courts, including the United States Supreme Court in Henderson v. United States, 517 U.S. 654 (1996), have suggested that a trial court has discretion to enlarge Rule 4 (m)’s 120-day period without a showing of good cause. Also, the Court observed that the United States’ Supreme Court has granted certiorari in a Fourth Circuit case, Chen v. Mayor & City Council of Baltimore, 135 S.Ct. 475 (2014), to resolve this exact issue. The Court ultimately held that, until the Supreme Court rules in the Chen case, the Mendez case is controlling and binding precedent in the Fourth Circuit. Under Mendez, Rule 4 (m) requires a showing of good cause to extend the 120-day period to effectuate service. The Court, therefore, dismissed Plaintiff’s claim against Defendant for failure to effectuate timely service.
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