Case 8:14-cv JDW-EAJ Document 10 Filed 01/12/15 Page 1 of 5 PageID 81 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

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1 Case 8:14-cv JDW-EAJ Document 10 Filed 01/12/15 Page 1 of 5 PageID 81 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MALIBU MEDIA, LLC, Plaintiff, v. KEVIN JOHNSON, Defendant. Civil Case No. 8:14-cv JDW-EAJ PLAINTIFF S FIRST MOTION FOR LEAVE TO SERVE DEFENDANT KEVIN JOHNSON VIA PUBLICATION AND FOR AN EXTENSION OF TIME TO ACCOMPLISH SAME Plaintiff, Malibu Media, LLC ( Plaintiff, by and through undersigned counsel and pursuant to Federal Rule of Civil Procedure 4(e, Federal Rule of Civil Procedure 4(m, and Florida Statute , moves for entry of an order authorizing Plaintiff to effectuate constructive service of process by publication upon Defendant Kevin Johnson ( Defendant Johnson and extending its time to accomplish same, and states as follows: 1. On August 29, 2014, Plaintiff commenced this copyright infringement action against a John Doe subscriber assigned IP address , and alleging that said John Doe Defendant had copied and distributed thirty eight (38 of Plaintiff s copyrighted works, all without Plaintiff s consent [CM/ECF 1]. Plaintiff asserted a claim for direct copyright infringement, and requested that the John Doe Defendant delete and permanently remove, and be enjoined from continuing to infringe, Plaintiff s copyrighted works [id.]. 2. Because Plaintiff was only able to identify the John Doe Defendant by his IP address, this Court entered an order on September 23, 2014, allowing Plaintiff to serve a Rule 45 subpoena on the John Doe Defendant s internet service provider in order to identify the John 1

2 Case 8:14-cv JDW-EAJ Document 10 Filed 01/12/15 Page 2 of 5 PageID 82 Doe Defendant [CM/ECF 7]. Plaintiff issued the subpoena on September 23, 2014, and the internet service provider contacted the John Doe Defendant shortly thereafter. 3. On or about October 7, 2014, after being notified about this action by his internet service provider, the John Doe Defendant, by and through his attorneys, sent Plaintiff s counsel a letter advising that Defendant Johnson, a tenant who had rented property from the John Doe Defendant, had admitted to being the individual responsible for infringing Plaintiff s 38 copyrighted works. More specifically, this letter, a copy of which is attached hereto as Exhibit A, advised: The undersigned firm represents the John Doe Internet subscriber associated with IP Address ( Client in the above referenced suit. The IP Address at issue has been in use by a renter at our Client s property, although the internet account remained in our Client s name as the owner of the property. After receiving the aforementioned letter, our Client confronted the renter, Mr. Kevin L. Johnson, regarding the allegations. Our Client explained to him what was in the letter, and that our client had never used the IP Address for any BitTorrent activity or other infringing activities of any kind. Faced with this situation, Mr. Johnson admitted to our client that it was indeed him that had used the IP Address to download content through BitTorrent on multiple occasions. Mr. Johnson resides at and may be reached at th Street North, Pinellas Park, Florida 33782, the address associated with the IP Address included on the subpoena. Given the circumstances, we ask that our Client no longer be targeted in the above-referenced case. In addition, there is no need, at this point, for you to persist in your pursuit of my client s personal information. Please confirm receipt of this correspondence by or fax at the contact information listed above. Please also confirm that this matter will no longer involve our Client, but that you will instead contact Mr. Johnson directly regarding his actions. 4. Based on the representations made by the John Doe Defendant and his attorneys, Plaintiff amended its complaint on September 15, 2014 to identify Defendant Johnson as the individual responsible for the direct infringement of Plaintiff s works [CM/ECF 8]. The Clerk issued summons for Defendant Johnson on December 17, 2014 [CM/ECF 9], and Plaintiff immediately instructed its process server, Executive Express Courier & Process Services, to effectuate service. 2

3 Case 8:14-cv JDW-EAJ Document 10 Filed 01/12/15 Page 3 of 5 PageID Since the summons was issued, Plaintiff, by and through its process server, has continuously undertaken diligent and conscientious efforts to effectuate personal service upon Defendant Johnson. After pulling and reviewing current Accurint reports to confirm that Defendant Johnson does not own any property and can only be located at his residence at th Street North, Pinellas Park, Florida 33782, where he resides as a tenant (a fact which is independently corroborated by the October 7, 2014 letter furnished by the John Doe Defendant, Plaintiff, by and through its process server, made numerous attempts to personally serve Defendant Johnson. As more fully set forth in the affidavit attached hereto as Exhibit B, Plaintiff s efforts have been unsuccessful because Defendant Johnson, who is clearly aware that service is being attempted, continues to evade service: a. December 19, 2014 A.M. Process server attempted to serve at residence. Vehicle (presumably Defendant Johnson s in driveway, but not answer at door. b. December 20, 2014 A.M. Process server attempted to serve at residence. No vehicles in driveway, but a package left at door containing Defendant Johnson s name and contact information. Process server called Defendant Johnson and a left voice message. Call not answered; call not returned. c. December 22, 2014 P.M. Process server attempted to serve at residence. No answer. d. December 26, 2014 P.M. Process server attempted to serve at residence. Same vehicle in driveway, and lights on inside residence. No answer at door. Process server left a note on the door. e. December 27, 2014 A.M. Process server attempted to serve at residence. Same vehicle outside residence and note previously left on door now gone. Still no answer. f. December 30, 2014 A.M. Process server attempted to serve at residence. No answer at door. Process server called Defendant Johnson and a left voice message. Call not answered; call not returned. Process server left Defendant Johnson another note on door. Note not responded to. 3

4 Case 8:14-cv JDW-EAJ Document 10 Filed 01/12/15 Page 4 of 5 PageID Plaintiff was required to effectuate service on Defendant Johnson by December 27, 2014 by following state law for serving a summons in an action brought in the courts of general jurisdiction in the state where the district court is located or where service is made. Fed. R. Civ. P. 4(e(1; 4(m. Pursuant to Florida law, where personal service of process cannot be had, service of process by publication may be had upon any party, natural or corporate, known or unknown , Fla. Stat. 7. Here, based on the foregoing and in light of Defendant Johnson s conscious avoidance of service, personal service of process was not timely effectuated and cannot be had. From a practical standpoint, it is arguably unnecessary for Defendant Johnson to be served in this action since he quite obviously has notice of this case. In order to nevertheless perfect service, however, Plaintiff respectfully requests for leave to serve Defendant Johnson via publication in the Tampa Bay Times, a local newspaper in the vicinity of Defendant Johnson s known address, and for the Court to extend the time within which Plaintiff has to effectuate service by forty five (45 days, or until February 10, Accord Bruggemann v. Amacore Grp., Inc., No. 8:09-cv- 2562, 2010 WL (M.D. Fla. Nov. 4, 2010 (permitting notice by publication under similar circumstances; M & T Bank Cor. V. McGrath, No. 3:10-cv-00117, 2010 WL (M.D. Fla. Sept. 16, 2010 (same; Cook v. Smith, No. 8:04-cv-1116, 2005 WL (M.D. Fla. June 3, 2005 (same. WHEREFORE, Plaintiff respectfully requests leave to serve Defendant Kevin Johnson by way of publication, and a 45-day extension of time to accomplish same. A proposed order is attached for the Court s convenience as Exhibit C. Dated: January 12,

5 Case 8:14-cv JDW-EAJ Document 10 Filed 01/12/15 Page 5 of 5 PageID 85 Respectfully submitted, By: /s/ M. Keith Lipscomb M. Keith Lipscomb ( klipscomb@lebfirm.com Daniel C. Shatz (94696 dshatz@lebfirm.com LIPSCOMB EISENBERG & BAKER, PL 2 South Biscayne Blvd. Penthouse 3800 Miami, FL Telephone: ( Facsimile: ( Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on January 12, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF and that service was perfected on all counsel of record and interested parties through this system. By: /s/ M. Keith Lipscomb 5