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Broadcast Music Inc. v. BLK, III LLC

United States District Court, D. Arizona

June 25, 2019

Broadcast Music Incorporated, et al., Plaintiffs,
v.
BLK, III LLC, et al., Defendants.

          ORDER

          Dominic W. Lanza United Slates District Judge

         Pending before the Court is Plaintiffs' Motion for Extension of Deadline to Complete Service, and for Leave to Utilize Alternative Means of Service, Regarding Defendants George Fischer[1] and Kevin Johnson (“the Motion”). (Doc. 17.)

         On February 27, 2019, Plaintiffs filed the above-captioned lawsuit. (Doc. 1.) Plaintiffs allege that Defendant BLK, III LLC “operates, maintains, and controls an establishment known as BLK Live, located at 7301 East Butherus Drive, Scottsdale, Arizona 85260.” (Id. ¶ 18.) Plaintiffs further allege that Defendant Kevin Johnson (“Johnson”) is a “manager of BLK, III LLC, with responsibility for the operation and management of” both the LLC and the establishment, BLK Live. (Id. ¶ 25.) Plaintiffs allege that Defendants have violated federal copyright laws through their operation of BLK Live, a Scottsdale restaurant, bar, and music venue, which allegedly provides unauthorized public performances of copyrighted musical compositions. (Id. ¶¶ 3, 18-35.)

         On March 12, 2019, the Court ordered that the clerk of court terminate any Defendant not served pursuant to Rule 4(m) of the Federal Rules of Civil Procedure by May 29, 2019. (Doc. 8 at 5.) On May 6, 2019, the summons for Johnson issued. (Docs. 13, 13-2.)

         On May 28, 2019, Plaintiffs timely filed the Motion. (Doc. 17.) Plaintiffs request an extension of the deadline to serve George Fischer[2] and Johnson. Rule 4(m) of the Federal Rules of Civil Procedure provides that the Court may extend the service deadline if Plaintiff shows good cause. See also Fed. R. Civ. P. 6(b)(1)(A) (court may extend time for good cause if a request is made before the deadline expires). Indeed, district courts have “broad” (but not “limitless”) discretion to extend the service deadline “even in the absence of good cause.” Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007).

         The Court finds that Plaintiffs have shown good cause and will extend the service deadline to Wednesday, July 24, 2019. Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984) (“[T]he provisions of Rule 4 should be given a liberal and flexible construction.”). Plaintiffs' service of Fischer is therefore deemed timely.

         Plaintiffs further request leave to serve Johnson by mailing (by regular U.S. mail and by certified mail) the Summons, Complaint, and this Order to (1) 4639 E. Timberline Road, Gilbert, AZ 85297 (“the Timberline address”), (2) “the address listed as the statutory agent for BLK III, LLC which is Business Filings Incorporated 3800 N. Central Avenue Suite 460 Phoenix, AZ 85012, ” and (3) the address identified in the complaint for BLK Live: 7301 E. Butherus Drive, Scottsdale, Arizona 85260. (Doc. 17 at 3.)

         The Timberline address is the residential address BLK, III LLC listed with the Arizona Corporation Commission for Johnson. According to process server Keith Blanchard's sworn affidavit, Blanchard attempted to serve Johnson at the Timberline address on May 8, 2019, but he was apparently unable to do so because “[t]he current owners and occupants of the Timberline address are the Delgados”-presumably a family unrelated to Johnson. (Doc. 17-2 at 2.) Blanchard further stated that “[a] search was conducted to locate any additional addresses or information on Kevin Johnson, including the Arizona Department of Transportation (vehicle registration, driver's license and 10-year driving history)[, ] social security number search, address history search, utility search, public record search and social media search” and that he was “unable to confirm any information to identify the correct Kevin Johnson.” (Id.) Plaintiffs aver that they “attempted to locate alternative or updated addresses, through internet searches and the Maricopa County Assessor's Office records” but were unable to locate any alternative address for Johnson. (Doc. 17 at 2.)

         Rule 4(e) of the Federal Rules of Civil Procedure provides that an individual (with exceptions not relevant here) may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of ...

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