The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
In this copyright infringement action, Plaintiffs Warner Bros. Records, Inc., Capitol Records, Inc., UMG Recordings, Inc., Sony BMG Music Entertainment, Arista Records LLC and Atlantic Recording Corporation applied to this Court on June 25, 2007 for a judgment by default based on Defendant Chaz Berry's failure to respond to their Complaint. The Court referred Plaintiffs' default judgment application to Magistrate Judge Kevin Nathaniel Fox, who issued a Report and Recommendation on February 11, 2008. Plaintiffs submitted an objection in-part on February 28, 2008.
Plaintiffs accept Magistrate Judge Fox's recommendations that their application for default judgment be denied and their Complaint dismissed. Plaintiffs object, however, to the recommendation that they be ordered to show cause why they did not violate Fed. R. Civ. P. 11(b) and to the finding that they made bad faith statements about their attempts to serve Defendant. For the reasons set forth below, this Court declines to adopt the recommendation to issue such an order to show cause. Magistrate Judge Fox's other recommendations, however, are adopted: Plaintiffs' default judgment application is hereby DENIED and this case DISMISSED.
Plaintiffs' Complaint alleges that, without Plaintiffs' consent, Defendant used the "KaZaA" online media distribution system to download, distribute and make available for distribution the copyrighted recordings of certain artists in violation of U.S. copyright law, 17 U.S.C. §§ 101-1332, as amended. Report & Recommendation of Magistrate Judge Kevin Nathaniel Fox (Feb. 11, 2008) ("R&R") 1. More than a year before they filed their Complaint, Plaintiffs had served a subpoena on the Internet service provider, America Online, Inc., which identified Defendant as the person responsible for the Internet protocol address that was using the KaZaA distribution system. America Online, Inc., in response to the subpoena, provided Plaintiffs with an address for Defendant: 1713 Adee Ave., Bronx, NY 10469 (the "Adee Avenue address"). On November 28, 2005, Plaintiffs sent a letter to Defendant at the Adee Avenue address regarding his alleged copyright infringement, but Defendant never responded. Decl. of Patrick Train-Gutierrez in Support of Plaintiffs' Objection In-Part to the R&R ("Train-Gutierrez Decl.") ¶¶ 3-4. On February 13, 2007, Plaintiffs filed their Complaint against Defendant.
This Court, by a letter dated March 2, 2007 to Plaintiffs, scheduled a pretrial conference with the parties on April 19, 2007. R&R 5. Two days before the scheduled conference, Plaintiffs requested a 60-day adjournment of the conference because their "attempts at service at Defendant's last-known address were unsuccessful." Plaintiffs stated they were "now conducting a thorough address investigation to locate a current address at which to serve Defendant before the June 13, 2007 service deadline." Id. at 5-6. This Court granted Plaintiffs' adjournment request. Id. at 6.
On April 25, 2007, Plaintiffs' process server executed an affidavit of service, declaring that on April 9, 2007, at 3:50 p.m., she posted the summons by affixing one copy "in a conspicuous place on the property known as: 1713 Adee Ave Apt. 1 Bronx, NY 10469," the address that had been provided by America Online, Inc. Id. Plaintiffs' process server further indicated that she completed service on April 25, 2007 by depositing a copy of the summons "in a first class post paid envelope properly addressed" to the same address. Id. On May 8, 2007, Plaintiffs filed with the Clerk of Court a proof of service by posting and mailing.
Magistrate Judge Fox observed that at the time of Plaintiffs' April 17, 2007 letter to this Court, which sought an adjournment of the pretrial conference so that Plaintiffs could locate Defendant's current address, Plaintiffs "had already resorted to the 'affix and mail' method of service because they affixed the summons to the defendant's last known residence on April 9, 2007." Id. at 7. The Magistrate Judge found that "[b]y affixing the summons on April 9, 2007, the plaintiffs demonstrated they never intended to conduct 'a thorough address investigation . . .' because they employed the 'affix and mail' method of service without exercising due diligence to effect personal service pursuant to CPLR § 308(1) and (2)." Id. Magistrate Judge Fox concluded that Plaintiffs' representation to this Court to the effect that they intended to conduct an investigation to locate Defendant's current address implicated Fed. R. Civ. P. 11(b) because it was made for the improper purpose of unnecessary delay. Id.
A district court reviewing a report and recommendation that addresses a dispositive motion "'may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.'" Donahue v. Global Home Loans & Fin., Inc., No. 05 Civ. 8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007) (quoting 28 U.S.C. § 636(b)(1)). Under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2), parties may submit specific, written objections to the magistrate judge's report and recommendation within ten days after being served with a copy of the recommended disposition. Where a party submits objections to a report and recommendation, the district court reviews the parts of the report to which the party objected under a de novo standard of review. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); see also Donahue, 2007 WL 831816, at *1. The district court may adopt those portions of a report to which no objections have been made, as long as those portions are not clearly erroneous. See, e.g., Darby Trading Inc. v. Shell Int'l Trading & Shipping Co. Ltd., No. 07 Civ. 400, 2008 WL 852787, at *4 (S.D.N.Y. Mar. 31, 2008).
A. Recommendations for Dismissal of Plaintiffs' Complaint and Denial of Plaintiffs' Default Judgment Application
The Federal Rules of Civil Procedure provide that a defendant must be served within 120 days after the complaint is filed and must be served by following the state law for service in the state where the district court is located or where service is made, i.e., in this case, New York. Fed. R. Civ. P. 4(e), (m). Section 308(4) of New York's Civil Practice Law and Rules ("CPLR") provides that where in-hand personal service or service to a person of suitable age and discretion at certain designated places "cannot be made with due diligence," an alternative service can be made by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either ...