Winner's Sun Plastic & Electronic (Shenzhen) Co. Ltd. v. Partnerships and Unincorporated Associations Identified on Schedule "B" ( 2019 )

NIHAT DENIZ BAYRAMOGLU, ESQ. (Nevada. Bar No. 14030) 1 Deniz@bayramoglu-legal.com 2 BAYRAMOGLU LAW OFFICES LLC 1540 West Warm Springs Road, Suite 100 3 Henderson, Nevada 89014 4 Telephone: 702.462.5973 Facsimile: 702.553.3404 5 Attorney for WINNER’S SUN PLASTIC & 6 ELECTRONIC (SHENZHEN) CO. LTD. IN THE UNITED STATES DISTRICT COURT 7 8 DISTRICT OF NEVADA 9 WINNER’S SUN PLASTIC & 10 ELECTRONIC (SHENZHEN) CO. Case No. 2:19-cv-00980-RFB-DJA 11 LTD., a Chinese Limited Company. 12 Plaintiff, EX PARTE MOTION REQUESTING 13 AN EXTENSION OF TIME UNDER vs. FRCP 4. 14 15 THE PARTNERSHIPS and UNINCORPORATED ASSOCIATIONS 16 IDENTIFIED ON SCHEDULE “B” 17 Defendants. 18 19 20 Plaintiff WINNER’S SUN PLASTIC & ELECTRONIC (SHENZHEN) CO. LTD., by and 21 through its undersigned counsel, Bayramoglu Law Offices, LLC, hereby files its Ex Parte Motion 22 Requesting an Extension of Time under Federal Rules of Civil Procedure 4. Plaintiff bases this 23 argument on all pleadings and papers filed therein, the following points and authorities, and any 24 oral argument at the time of hearing. 25 26 EX PARTE MOTION REQUESTING AN EXTENSION OF TIME UNDER FRCP 4 27 PAGE 1 OF 4 BACKGROUND 1 2 This case was filed on June 9, 2019 to combat online counterfeiters and infringers who 3 have and continue to infringe upon the patented technology regarding United States Patent 4 Number 9,995,993 (the “‘993” patent) and Winner’s trade dress by and/or offering to sell 5 unauthorized and unlicensed products, including but not limited to mobile devices to take 6 photographs (“Selfie Sticks”). 7 On information and belief, the Defendants in this matter create Internet Stores to sell their 8 products. The Defendants Internet Stores share unique identifiers, such as their usernames, and 9 suggest that the products sold are inexpensive and free from infringement of any kind. We also 10 believe that most, if not all of the Defendants in this action reside in China. Because of their 11 location and the fact that it may be close to impossible to actually serve the complaint on our 12 Defendants, on the August 13, 2019, we filed a Motion for Alternative Service (ECF No. 07) in 13 order to serve all of the Defendants through an email address. On August 14, 2019, Judge Albregts 14 granted our Order for Alternative Service for Defendants (ECF No. 08). 15 In order to obtain the email addresses from eBay and Amazon, on September 23, 2019, we 16 filed an Ex Parte Motion for Expedited Discovery (ECF No. 13). The court granted our order on 17 September 27, 2019 18 As Plaintiffs, we have done and continue to do our due diligence in this matter in our 19 attempt to serve Defendants in a timely matter. We served Amazon and eBay with discovery 20 requests in October. We received the requested information regarding defendants’ names and 21 email addresses from eBay. However we have not heard back from Amazon. We have contacted 22 Amazon requesting names and addresses of vendors that sell infringing products but to no avail. 23 We recently found out, though, that Amazon’s counsel responsible to responding to the discovery 24 requests is on maternity leave. Prior to learning this, Plaintiff’s counsel has also been on paternity 25 leave, therefore we ask the court to take into consideration the unusual circumstances of this case 26 EX PARTE MOTION REQUESTING AN EXTENSION OF TIME UNDER FRCP 4 27 PAGE 2 OF 4 1 and counsel and grant our request to extend the time to serve the Complaint by 30 days. The 2 Plaintiff is unable to serve the Defendants until Amazon provides the name and email addresses 3 of the Defendants. 4 In order for this case to move forward and do our best for our Client, we respectfully 5 request that our Ex Parte Motion Requesting an Extension of Time under Federal Rule of Civil 6 Procedure 4, be granted so we may move forward in this case. 7 POINTS AND AUTHORITIES 8 Federal Rules of Civil Procedure 4(m) outlines the procedure for a court dismissing an 9 action for failure to effectuate service of process: 10 If a defendant is not served within 90 days after the 11 complaint is filed, the court--on motion or on its own after notice to 12 the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But 13 if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This 14 subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 15 71.1(d)(3)(A). 16 Federal Rule of Civil Procedure 4(m). 17 “Rule 4(m), as amended in 1993, requires a district court to grant an extension of time 18 when the plaintiff shows good cause for the delay … [a]dditionally, the rule permits the district 19 court to grant an extension even in the absence of good cause.” Efaw v. Williams, 473 F.3d 1038, 20 1040 (9th Cir. 2007). 21 The Court, in its August 14, 2019 Order Granting Plaintiff’s Motion for Alternative 22 Service, recognized that “Defendants are likely located in China.” Further, in recognition of this 23 fact, the Court applied Federal Rules of Civil Procedure 4(f), which governs service in a foreign 24 25 26 EX PARTE MOTION REQUESTING AN EXTENSION OF TIME UNDER FRCP 4 27 PAGE 3 OF 4 1 ||country. By Federal Rule of Civil Procedure 4(m)’s plain language, it is inapplicable to this 2 ||situation, where Plaintiff is attempting to serve foreign defendants. 3 Further, the Defendants are anonymous, and Plaintiff recently filed a motion for expedited 4 ||discovery to ascertain the e-mail addresses associated with the Defendant’s accounts on 5 || Amazon.com and eBay.com for the purpose of effectuating service. As outlined above, we have 6 ||not yet received any information from Amazon.com regarding this case. Consequently, good 7 exists for this Court to continue this case and not dismiss it under Federal Rule of Civil 8 || Procedure 4(m). 9 CONCLUSION 10 Based on the foregoing, Plaintiff requests the court to grant an extension of time of 30 day 11 || to effectuate service on Defendants under Federal Rule of Civil Procedure 4. 12 Dated this 20" day of December, 2019 13 14 BAYRAMOGLU LAW OFFICES LLC. 15 By: /s/Nihat Deniz Bayramoglu 16 NIHAT DENIZ BAYRAMOGLU, ESQ. 17 (Nevada. Bar No. 14030) Deniz@bayramoglu-legal.com 18 1540 West Warm Springs Road Suite 100 Henderson, Nevada 89014 19 Attorney for WINNER’S SUN PLASTIC & ELECTRONIC (SHENZHEN) CO. LTD. 21 IT IS SO ORDERED. 22 Dated: December 30, 2019 ~ 23 24 Daniel J. Albregts United States Magistrate Judge 25 EX PARTE MOTION REQUESTING AN EXTENSION OF TIME UNDER FRCP 4 PAGE 4 OF 4