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`Case 5:18-md-02834-BLF Document 305 Filed 11/09/18 Page 1 of 3
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`IN RE PERSONALWEB
`TECHNOLOGIES, LLC, ET AL., PATENT
`LITIGATION
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`Case No. 18-md-02834-BLF
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`ORDER GRANTING MOTION FOR
`LEAVE TO EXTEND DEADLINE TO
`EFFECT SERVICE OF PROCESS
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`On October 11, 2018, Plaintiffs PersonalWeb Technologies, LLC and Level 3
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`Communications, LLC (collectively “PersonalWeb”) filed a motion to extend, nunc pro tunc, the
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`deadline to effect service of process on Defendants Our Film Festival, Inc. (“Our Film Festival”),
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`PayPal, Inc. (“PayPal”), Under Armour, Inc. (“Under Armour”), Lesson Nine GmbH (“Lesson
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`Nine”), Yotpo, Inc. (“Yotpo”), and MWM My Wedding Match, Inc. (“My Wedding Match”)
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`(collectively “unserved defendants”). ECF No. 260. Our Film Festival, Under Armour, Lesson
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`Nine, and Yotpo filed an opposition on October 25, 2018, and PayPal filed an opposition on
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`October 25, 2018. ECF Nos. 267, 268. PersonalWeb filed a Reply on November 1, 2018. ECF
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`No. 287. For the reasons stated below, the Court GRANTS PersonalWeb’s motion.
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`Under Fed. R. Civ. Proc. 4(m), the Court must extend the time for service on a showing of
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`good cause.1 See In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). At a minimum, good cause
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`means excusable neglect. See id. “[G]ood cause generally means that service has been attempted
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`1 As noted by PersonalWeb, ECF No. 287 at 4-5, and Our Film Festival, Under Armour, Lesson
`Nine, and Yotpo, ECF No. 267 at 3, the Court has discretion to extend the time for service even
`absent a showing of good cause. See Mann v. American Airlines, 324 F.3d 1088, 1090 n.2 (9th
`Cir. 2003) (Rule 4(m) “requires a district court to grant an extension of time if good cause is
`shown and permits the district court to grant such an extension even absent good cause.”) The
`Court need not exercise its discretion here because PersonalWeb has shown good cause to extend
`the service deadline.
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`Northern District of California
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`Case 5:18-md-02834-BLF Document 305 Filed 11/09/18 Page 2 of 3
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`but not completed, that plaintiff was confused about the requirements of service, or that plaintiff
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`was prevented from serving defendants by factors beyond his control.” AF Holdings LLC v. Does
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`1-135, No. 11-CV-03336, 2012 WL 1038671, at *3 (N.D. Cal. March 27, 2012) (quoting
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`Chemehuevi Indian Tribe v. Wilson, 181 F.R.D. 438, 440 (N.D. Cal. 1998)).
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`As to Defendants Our Film Festival, PayPal, and Under Armour, PersonalWeb originally
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`identified the incorrect entities in its complaint. On March 1, 2018, PersonalWeb attempted
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`service against Fandor Inc., a dba for Our Film Festival, but counsel refused to accept service until
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`the entity name was corrected on the summons and complaint. See ECF No. 287-1. During this
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`time, PersonalWeb learned that it had incorrectly identified Venmo, which was owned by PayPal,
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`and MyFitnessPal, which had merged into Under Armour. ECF No. 260 at 5. On September 26,
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`2018, the Court gave PersonalWeb leave to amend the complaints and to request an extension of
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`time to serve defendants that it had not yet served. ECF No. 157. PersonalWeb filed an amended
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`complaint against Our Film Festival on October 3, 2018, ECF No. 180, and against Under Armour
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`and PayPal on October 4, 2018, ECF Nos. 240, 242. PersonalWeb successfully served these
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`defendants on October 16, 2018. No. 18-CV-00159, ECF No. 34; No. 18-CV-00166, ECF No. 32;
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`18-CV-00177, ECF No. 33.
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`As to Defendants Lesson Nine, Yotpo, and My Wedding Match, PersonalWeb attempted
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`service but was unable to successfully complete service in accordance with the Hague Convention.
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`On or about February 12, PersonalWeb delivered or attempted to deliver a notice of lawsuit and
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`request to waive service to these defendants. See ECF No. 261. Because these defendants did not
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`execute the waivers, PersonalWeb attempted to serve them abroad in accordance with the Hague
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`Convention. See id. PersonalWeb completed service on LessonNine on November 1, 2018. See
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`No. 18-CV-3453, ECF No. 23. PersonalWeb represents that it continues to attempt service against
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`Yotpo and My Wedding Match in accordance with the Hague Convention. See ECF No. 261.
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`Based on this record, the Court finds that good cause exists. As to Our Film Festival,
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`PayPal, and Under Armour, PersonalWeb originally attempted service based on subsidiary or
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`related entity names and has since identified and served the correct entities. As to Lesson Nine,
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`Yotpo, and My Wedding Match, PersonalWeb requested waivers of service and has attempted
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`Northern District of California
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`United States District Court
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`Case 5:18-md-02834-BLF Document 305 Filed 11/09/18 Page 3 of 3
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`service in compliance with the Hague Convention. Moreover, the Court may extend the time for
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`service retroactively after the time for service has elapsed. See Mann, 324 F.3d at 1090.
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`For the foregoing reasons, the Court GRANTS PersonalWeb’s motion to extend the time
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`for service of process retroactively for an additional 90 days from the date PersonalWeb filed its
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`amended complaints. PersonalWeb shall complete service by January 2, 2019. PersonalWeb shall
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`request any necessary extension of time to serve the foreign defendants in accordance with the
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`Hague Convention before the 90-day period elapses.
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`IT IS SO ORDERED.
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`Dated: November 9, 2018
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`______________________________________
`BETH LABSON FREEMAN
`United States District Judge
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