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ME2 Productions Inc. v. Soto

United States District Court, D. Utah

July 8, 2019

ME2 PRODUCTIONS, INC., Plaintiff,
v.
ABEL SOTO, VICTOR RAYA, RYA N CONAWAY, BEN L YUENYOUNG, STACEY LIDDIARD, ROBERT ZAMPEDRI, DARIN & NICOLE CROPPER, PAUL TURNER, MARIO SANCHEZ, REBECCA LIRA, MARIA CARDENAS, and MARTHA LUMBRERAS, Defendants.

          MEMORANDUM DECISION AND ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT

          DAVID NUFFER DISTRICT JUDGE

         Plaintiff ME2 Productions Inc. (“ME2”) has filed two motions for summary judgment (the “MSJs”). One is against Stacey Liddiard, a pro se defendant.[1] The other is against Abel Soto, also a pro se defendant.[2] Except for the parties' names, the MSJs are essentially identical in all respects. Although no response has been filed to either of the MSJs, ME2 has failed to show that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law against Liddiard or Soto. As a result, the MSJs are DENIED.

         BACKGROUND

         ME2 commenced this action to enforce a copyright in a movie entitled Mechanic: Resurrection (the “Movie”).[3] According to ME2, Liddiard and Soto have infringed ME2's copyright in the Movie through a communication protocol for peer-to-peer file sharing called BitTorrent, which is used to distribute electronic data and files over the internet.[4]

         In an effort to establish its claims, ME2 prepared a set of written discovery requests addressed to Liddiard and an identical set of written discovery requests addressed to Soto.[5] Each set of discovery requests includes 11 requests for admission.[6] Among other things, the requests for admission ask Liddiard and Soto to admit that they “have intentionally not sought to control access to or monitor use of” their internet service, and that they have viewed the Movie at home on an electronic device through their internet service.[7] Although the MSJs state that both sets of discovery requests were served on January 15, 2019, [8] ME2 has not provided any evidence to support this assertion or to indicate how or where they were served.

         There is no evidence that the parties have ever conferred (or even attempted to confer) as required under Fed.R.Civ.P. 26(f). There is also no evidence that the parties have stipulated or ever obtained permission to engage in discovery before conferring under Rule 26(f).

         DISCUSSION

         Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[9] In ruling on a motion for summary judgment, the evidence and all reasonable inferences are viewed in the light most favorable to the nonmoving party.[10]

         To establish the nonexistence of a genuine dispute as to any material fact, ME2 relies solely on Liddiard's and Soto's failure to respond to ME's requests for admission within 30 days after being served. According to Fed.R.Civ.P. 36(a)(3), unless a party to whom a request for admission is directed serves a written answer or objection within 30 days of being served, the “matter is admitted.” However, because there is no evidence to establish that ME2's requests for admission were ever served on Liddiard or Soto, ME2 cannot show that Liddiard and Soto failed to respond “within 30 days after being served” with the requests.[11]

         Even if ME2 could show that Liddiard and Soto did not respond to the requests for admission within 30 days after being served, any failure to timely respond to these requests would be of no consequence. According to Fed.R.Civ.P. 26(d)(1), “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.” This case is not exempt from initial disclosure under Rule 26(a)(1)(B), there is no evidence that the parties have conferred (or attempted to confer) under Rule 26(f), and there is also no evidence of any stipulation or court order[12]allowing discovery before the Rule 26(f) conference. As a result, ME2's requests for admission are improper and without effect under Rule 26(d)(1).

         Because ME2 has failed to show that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law against Liddiard and Soto, the MSJs must be denied.

         ORDER

         THEREFORE, IT IS HEREBY ORDERED that ...


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