United States District Court, D. Arizona
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
...