IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
October 13, 2010
COREY FAHY, PLAINTIFF,
LINDEN RESEARCH, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Slomsky, J.
OPINION AND ORDER
On April 8, 2010, Plaintiff, Corey Fahy, filed a Complaint in this Court, naming as Defendants Linden Research, Inc., Insanity Productions, L.L.C., Joseph Damico, "Developers of Cool VL Viewer," "Contributors of Cool VL Viewer," "Distributors of Cool VL Viewer," "Developers of Imprudence Viewer," "Contributors of Imprudence Viewer," "Distributors of Imprudence Viewer," twenty-two "J. Does" each listed by his or her alias used in "Second Life," and "Other John/Jane Does also using [his] intellectual property." (Doc. No. 1.) The Complaint alleges illegal distribution of Plaintiff's intellectual property in violation of his rights under the Digital Millennium Copyright Act ("DMCA"), a contract formed between the owners and players of the virtual reality computer game Second Life. (Id.)*fn1
On April 8, 2008, as reflected in the Docket, the Clerk of Court for the Eastern District of Pennsylvania issued a Summons for each named Defendant. However, Plaintiff has failed to file proof of service of the Summons and Complaint on any Defendant. On August 27, 2010, the Court issued a Show Cause Order requiring Plaintiff to submit a letter to the Court explaining whether there was good cause for his failure to serve Defendants. (Doc. No. 4.)*fn2 Plaintiff did not respond at all to the Show Cause Order. On September 22, 2010, the Court issued an Order directing Plaintiff to appear at a hearing on October 7, 2010 to show cause why his Complaint should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m) for failure to serve Defendants within the 120-day deadline. (Doc. No. 5.)*fn3 Plaintiff did not appear at the hearing on October 7, 2010.
For the following reasons, the Court will dismiss Plaintiff's Complaint without prejudice pursuant to Federal Rule Civil Procedure 4(m).
Federal Rule of Civil Procedure 4(m) provides: "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."
The Rule requires a court to extend time for service if good cause is shown and, absent a showing of good cause, permits a court to dismiss the case without prejudice or to extend time for service where other factors warrant extending the time. Petrucelli v. Bohringer & Ratzinger, GMBH Ltd., 46 F. 3d 1298, 1305, 1307 (3d Cir. 1995). In Petrucelli, the Third Circuit held that the analysis under Rule 4(m) involves a two-part process. Id. at 1305. "First, the district court should determine whether good cause exists for an extension of time. If good cause is present, the district court must extend time for service and the inquiry is ended. If, however, good cause does not exist, the court may in its discretion decide whether to dismiss the case without prejudice or extend time for service." Id.
Here, Plaintiff filed his Complaint on April 8, 2010. Accordingly, Defendants should have been served by August 6, 2010. By this date, Plaintiff failed to file proof of service. Thereafter, the Court, in the August 27, 2010 Show Cause Order and at the October 7, 2010 Show Cause Hearing, gave Plaintiff ample opportunity to show good cause for his failure to serve the Summons and Complaint on Defendants. Plaintiff did not respond to the two Show Cause Orders, nor did he appear at the October 7, 2010 Hearing. Consequently, Plaintiff has failed to show good cause under Federal Rule Civil Procedure 4(m) for failure to serve.
In addition, by failing to respond to the Court's Show Cause Orders, Plaintiff has failed to advance other reasons which, although not enough by themselves to establish good cause, would warrant an extension of time to serve the Summons and Complaint. Therefore, pursuant to Federal Rule Civil Procedure 4(m), the Court will dismiss the Complaint without prejudice.*fn4
For the foregoing reasons, the Court will dismiss Plaintiff's Complaint without prejudice.
An appropriate Order follows.