Opinion
CV 23-5843-KK-SSCx
07-31-2024
G. Schirmer, Inc. v. LHIM Productions, LLC, et al
CIVIL MINUTES-GENERAL
KENLY KIYA KATO, UNITED STATES DISTRICT JUDGE
Proceedings: (In Chambers) ORDER (1) DISCHARGING the Court's July 12, 2024 Order to Show Cause; (2) DISMISSING Defendant Impact Museums, Inc.; and (3) TO SHOW CAUSE Why this Action Should Not Be Dismissed as to Certain Defendants for Failure to Prosecute
I.
BACKGROUND
A. THE COMPLAINT
On July 19, 2023, plaintiff G. Schirmer, Inc. (“Plaintiff”) initiated this action by filing a Complaint against defendants LHIM Productions, LLC, a Delaware limited liability company (“LHIM Productions”); Show One Productions, Inc., a Florida corporation (“Show One Florida”); Starvox Exhibits USA, Inc., a Florida corporation (“Starvox Exhibits USA”); Starvox Exhibits Inc., a California corporation (“Starvox Exhibits California”); Impact Museums, Inc., a Delaware corporation (“Impact Museums”); Visioni Eccentriche S.R.L.S., an Italian business entity (“Visioni Eccentriche”); and individuals Genreoso Realino, Massimiliano Siccardi, and Luca Longobardi. ECF Docket No. (“Dkt.”) 1. Plaintiff asserted a claim for copyright infringement arising from the alleged unauthorized use of the composition “Adagio for Strings.” Id.
On November 7, 2023, Plaintiff and defendants Starvox Exhibits California and Impact Museums filed a Joint Rule 26(f) Report indicating, among other things, Plaintiff “anticipate[d] that service on defendants Visioni Eccentriche S.R.L.S., Genreoso Realino, Massimiliano Siccardi and Luca Longobardi in Italy where they reside will be effected no later than January 2024 pursuant to the Hague Convention.” Dkt. 25 at 13.
On December 11, 2023, the Clerk of Court entered default against defendant LHIM Productions. Dkt. 33.
On December 13, 2023, in light of Plaintiff's non-opposition to the dismissal of defendants Show One Florida and Starvox Exhibits USA, the Court issued an Order dismissing defendants Show One Florida and Starvox Exhibits USA without prejudice. Dkt. 36.
B. THE FIRST AMENDED COMPLAINT
On April 17, 2024, the Court issued an Order granting Plaintiff's Motion for Leave to Amend the Complaint. Dkt. 52.
On April 19, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”). Dkt. 53. The FAC names the following individual defendants: Corey Ross; Svetlana Dvoretsky; Slava Zheleznyakov; Genreoso Realino; Massimiliano Siccardi; and Luca Longobardi. Id. In addition, the FAC names the following entity defendants: Starvox Entertainment Inc., a Canadian corporation (“Starvox Entertainment”); Starvox Immersive Inc., a Canadian corporation (“Starvox Immersive”); Starvox Exhibits Inc., a Canadian corporation (“Starvox Exhibits Canada”); IMP (ABC), LLC, a Delaware limited liability company (“IMP (ABC)”); LHIMP (ABC), LLC, a Delaware limited liability company (“LHIMP (ABC)”); Twenty6Two International, Inc., a Canadian corporation (“Twenty6Two”); Show One Productions Inc., a Canadian corporation (“Show One Canada”); Show One Florida; Starvox Exhibits USA; Starvox Exhibits California; LHIM Productions; Impact Museums; and Visioni Eccentriche. Id.
Defendant Ross is erroneously identified in the FAC as “Cory Ross.” See dkts. 53, 57.
On April 27, 2024, defendants Ross, Starvox Entertainment, Starvox Immersive, Starvox Exhibits Canada, and Starvox Exhibits USA filed an Answer to the FAC. Dkt. 57.
On July 12, 2024, the Court issued an Order to Show Cause (“OSC”) why this action should not be dismissed for lack of prosecution as to defendants IMP (ABC), LHIMP (ABC), and Impact Museums. Dkt. 71. The Court warned Plaintiff “failure to timely file a response to this Order will result in this action being dismissed without prejudice” as to such defendants. Id. at 2.
On July 18, 2024, Plaintiff filed a Response to the Court's July 12, 2024 OSC indicating Plaintiff reached “a settlement in principle” with defendants IMP (ABC) and LHIMP (ABC). Dkt. 72. On the same date, Plaintiff filed a Notice of Settlement with respect to these defendants. Dkt. 73. Plaintiff's Response to the Court's July 12, 2024 OSC did not address defendant Impact Museums. See dkt. 72.
II.
DISCUSSION
Generally, absent a showing of good cause, an action must be dismissed without prejudice if the summons and complaint are not served on a defendant within 90 days after the complaint is filed. See FED. R. CIV. P. 4(m). In addition, pursuant to Federal Rule of Civil Procedure 41(b), an action may be dismissed for failure to prosecute or comply with a court order. See FED. R. CIV. P. 41(b).
As an initial matter, in light of Plaintiff's Response to the Court's July 12, 2024 OSC and Plaintiff s July 18, 2024 Notice of Settlement, see dkts. 72, 73, the Court's July 12, 2024 OSC is DISCHARGED with respect to defendants IMP (ABC) and LHIMP (ABC).
However, Plaintiff's failure to address defendant Impact Museums in its Response to the Court's July 12, 2024 OSC is deemed consent to the dismissal of Plaintiff's claims against defendant Impact Museums. See dkt. 72; see also dkt. 71 (warning Plaintiff “failure to timely file a response to [the OSC] will result in this action being dismissed without prejudice”). Hence, defendant Impact Museums is DISMISSED WITHOUT PREJUDICE.
Finally, to date, Plaintiff has not filed a proof of service with respect to individual defendants Dvoretsky, Zheleznyakov, Realino, Siccardi, or Longobardi, or entity defendants Twenty6Two International, Show One Canada, Show One Florida, Starvox Exhibits California, or Visioni Eccentriche. Accordingly, the Court, on its own motion, orders Plaintiff to show cause in writing no later than seven days from the date of this Order why this action should not be dismissed for lack of prosecution as to such defendants.
While the 90-day deadline under Federal Rule of Civil Procedure 4(m) does not govern service in a foreign country, Lucas v. Natoli, 936 F.2d 432, 432-33 (9th Cir. 1991), a court “may set a reasonable time limit for service in a foreign country to properly manage a civil case[,]” Sport Lisboa e Benfica - Futebol SAD v. Doe 1, No. CV 18-2978-RSWL-E, 2018 WL 4043182, at *4 (C.D. Cal. Aug. 21, 2018).
No oral argument of this matter will be heard unless ordered by the Court. The Order will stand submitted upon the filing of a written response.
III.
CONCLUSION
For the reasons set forth above, it is hereby ordered as follows:
1. The Court's July 12, 2024 OSC is DISCHARGED.
2. Defendant Impact Museums is DISMISSED WITHOUT PREJUDICE.
3. Plaintiff shall show cause in writing no later than seven days from the date of this Order why this action should not be dismissed for lack of prosecution as to defendants Dvoretsky, Zheleznyakov, Realino, Siccardi, Longobardi, Twenty6Two International, Show One Canada, Show One Florida, Starvox Exhibits California, and Visioni Eccentriche.
IT IS SO ORDERED.