Bungie Inc v. Elite Boss Tech Incorporated

Opinion

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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 10 11 BUNGIE, INC., CASE NO. 2:21-cv-01112-TL 12 Plaintiff, ORDER v. 13 ELITE BOSS TECH, INC., et al., 14 Defendants. 15

16 17 18 This matter is before the Court sua sponte. The Court entered an order of default 19 judgment against Defendant Daniel Fagerberg Larsen (Dkt. No. 77) and previously entered a 20 consent judgment against Defendants Robert James Duthie Nelson, Elite Boss Tech, Inc., and 21 11020781 Canada Inc. (Dkt. No. 29). In its First Amended Complaint (“FAC”), Plaintiff Bungie, 22 Inc., also includes claims against other named parties as well as a number of fictitious “Doe” 23 Defendants. Dkt. No. 43 ¶¶ 23–45. While some Doe Defendants have apparently been identified 24 since this action commenced (see id.), Does 9–20 are still unidentified and have not been served. 1 Dkt. No. 43 ¶ 45. Further, it appears that the remaining named Defendants in the FAC have not 2 been served. 3 While naming fictious defendants is generally disfavored in federal court, “plaintiff[s] 4 should be given an opportunity through discovery to identify the unknown defendants, unless it

5 is clear that discovery would not uncover the identities, or that the complaint would be dismissed 6 on other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). On October 12, 2022, 7 Plaintiff stated that it “expects either to be able to identify the remaining Doe Defendants or, 8 alternatively, dismiss without prejudice as to those Defendants on or before November 30, 9 2022.” Dkt. No. 42 at 2. Does 9–20 remain unidentified with no explanation. 10 Federal Rule of Civil Procedure 4(m) allows the Court to dismiss defendants who are not 11 timely served sua sponte upon notice to the plaintiff. The Court therefore DIRECTS Plaintiff to file 12 a stipulated notice voluntarily dismissing all unnamed Doe Defendants and named Defendants 13 who have not been served, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), within 14 fourteen (14) days of this Order.

15 Alternatively, if Plaintiff intends to proceed with any of its claims against any of the Doe 16 Defendants or named Defendants who have not yet been served, it must move for leave to amend 17 its complaint to identify any unnamed defendants and/or for additional relief from the service 18 deadline within fourteen (14) days of this Order. Otherwise, pursuant to Rule 4(m), the Court 19 will sua sponte order the dismissal of all claims against all Doe Defendants and all named 20 Defendants who have not been served. 21 Additionally, for clarity of the record, the Court DIRECTS Plaintiff to file within seven (7) 22 days of this Order a confirmation that Plaintiff has settled with or dismissed any Defendant from 23 the original Complaint that is not listed in the Amended Complaint, other than Defendants

24 1 Robert James Duthie Nelson, Elite Boss Tech, Inc., 11020781 Canada Inc., and Daniel 2 Fagerberg Larsen. 3 Dated this 11th day of May 2023. 4 A 5 Tana Lin United States District Judge 6

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