Choyce v. SF Bay Area Independent Media Center et al

MOTION for Extension of Time to File Answer or Otherwise Respond to Complaint

N.D. Cal.December 2, 2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 5 6 0 M IS S IO N S T R E E T , 2 5 T H F L O O R S A N F R A N C IS C O , C A 9 4 1 0 5 - 2 9 9 4 SF01DOCS\172693.1 MOTION FOR EXTENSION OF TIME CV 13 1842 JST Roger Myers (CA State Bar No. 146164) roger.myers@bryancave.com Leila Knox (CA State Bar No. 245999) leila.knox@bryancave.com Katherine Harrison (CA State Bar No. 285561) katherine.harrison@bryancave.com BRYAN CAVE LLP 560 Mission Street, 25th Floor San Francisco, CA 94105-2994 Telephone: (415) 675-3400 Facsimile: (415) 675-3434 Attorneys for Defendant SF BAY AREA INDEPENDENT MEDIA CENTER IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION DIONNE CHOYCE, Plaintiff, v. SF BAY AREA INDEPENDENT MEDIA CENTER, a.k.a. IMC, SF BAY AREA, a.k.a. SF BAY AREA IMC; an unincorporated association; LAYER42.NET, INC., a California Corporation, CERNIO TECHNOLOGY COOPERATIVE, an unincorporated association, and DOES 1-10, Defendants. Case No. CV 13 1842 JST MOTION FOR EXTENSION OF TIME TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT Case3:13-cv-01842-JST Document23 Filed12/02/13 Page1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 5 6 0 M IS S IO N S T R E E T , 2 5 T H F L O O R S A N F R A N C IS C O , C A 9 4 1 0 5 - 2 9 9 4 SF01DOCS\172693.1 1 MOTION FOR EXTENSION OF TIME CV 13 1842 JST Defendant SF Bay Area Independent Media Center (“Indybay”), through its undersigned counsel, moves for a 30-day extension of time, to and including January 6, 2014, in which to answer or otherwise respond to the complaint in this action. In support of its motion, and as detailed in the Declaration of Leila Knox filed herewith (“Knox Decl.”), Indybay respectfully states as follows: 1. This action was commenced when Plaintiff filed his lawsuit with this Court on April 23, 2013, naming SF Bay Area Independent Media Center as one of three named defendants. 2. According to the Court’s docket sheet, Plaintiff made no attempt to serve Indybay for more than six months. 3. On November 14, 2013, Indybay’s counsel checked the Court’s docket in this action and noticed that a proof of service had been filed by Plaintiff. According to the proof of service, service on Indybay was attempted at 2940 16th Street in San Francisco on October 31, 2013, a location where Indybay has a mail drop but does not maintain any offices. The process server’s declaration included in the proof of service said the complaint was left with an individual named Ben Terrall, who is not affiliated nor employed with Indybay. The complaint was subsequently mailed to the 2940 16th Street address as well, but without identifying to whom the package had been mailed. Both copies of the complaint were apparently deposited in Indybay’s mail drop, and both included a form that would permit Defendant to waive service of process. However, as required under Federal Rule of Civil Procedure 4(d)(1), Plaintiff’s attorney did not include a request for waiver of service, as the request form attached to the complaint was not filled in. Knox Decl., ¶¶ 2,3. 4. Since the complaint was not properly served on an officer or agent of Indybay, and Indybay checks the mail drop infrequently, Indybay was unaware Plaintiff had attempted to serve it until its counsel checked the Court’s docket on November 14. After a representative from Indybay was informed by counsel of the contents of the proof of service, he checked and found two copies of the complaint in the mail drop. Knox Decl., ¶ 4. 5. Between November 27 and December 2, Indybay’s counsel made several attempts to work with Plaintiff’s counsel on the service defect, offering to waive service of process if Case3:13-cv-01842-JST Document23 Filed12/02/13 Page2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 5 6 0 M IS S IO N S T R E E T , 2 5 T H F L O O R S A N F R A N C IS C O , C A 9 4 1 0 5 - 2 9 9 4 SF01DOCS\172693.1 2 MOTION FOR EXTENSION OF TIME CV 13 1842 JST Plaintiff’s counsel would send a completed request for waiver of service, or, alternatively, offering to appear on the merits if Plaintiff’s counsel would stipulate to a 30-day extension of time to answer or otherwise respond to the complaint, up to and including January 6, 2014. Knox Decl., ¶ 6. This date was calculated using the date that Plaintiff’s counsel presumptively mailed the complaint to Indybay - October 31, 2013 - and a response date by Defendant of December 5, 2013, if service had indeed been effective (which Indybay does not believe to be the case). Knox Decl., ¶¶ 7,8. 6. To date, Plaintiff’s counsel has declined to provide a completed request for waiver, or to stipulate to an extension of time to respond on the merits. Rather than fight over service, Indybay instead determined that it would seek a 30-day extension of time to answer or otherwise respond to the complaint directly from the Court. Plaintiff’s counsel has not responded to Indybay’s question as to whether Plaintiff opposes this motion. Knox Decl., ¶¶ 7, 8. 7. The requested extension of time is not made for the purpose of delay, and will not prejudice the interests of any party in this case. Rather, the extension of time will give Defendant, who, up until November 14, 2013, was not aware that any attempts at service had been made, time to formulate a response to Plaintiff’s complaint that addresses its merits in an attempt to seek an early resolution of this case. WHEREFORE, Defendant SF Bay Area Independent Media Center respectfully requests that this Court enter an order granting it an additional 30 days, to and including January 6, 2014, within which to answer or otherwise respond to Plaintiff’s complaint. Dated: December 2, 2013 Respectfully submitted, BRYAN CAVE LLP /s/ Leila Knox Attorneys for Defendant SF BAY AREA INDEPENDENT MEDIA CENTER Case3:13-cv-01842-JST Document23 Filed12/02/13 Page3 of 3