Free Response to Order - District Court of Delaware - Delaware

Case 1 :06-cv-00357-SLR Document 14 Filed 05/20/2008 Page 1 ot 3
IN THE UNITED STATES DESTRICT COURT
FOR THE DISTRICT OF DELAWARE
BMG MUSIC, a New York general )
partnership; WARNER BROS. ) CIVIL ACTION No. l:06—cv—00357
RECORDS INC., a Delaware corporation; )
PRIORITY RECORDS LLC, a California )
limited liability company; INTERSCOPE )
RECORDS, a California general )
partnership; and FONOVISA, lNC., a )
California corporation, )
)
. . F
Plaintiffs, )
>
vs. I )
)
GILBERT CANO, )
)
)
Defendant. )
RESPONSE TO ORDER TO SHOW CAUSE
Plaintiffs BMG Music, er al., respectfully respond to the Court’s April 22, 2008 Order to
Show Cause as follows:
l. This case arises out of Piaintiffs’ evidence of substantial copyright infringement.
Plaintiffs are the copyright owners of various sound recordings (the “Copyrighted Recordings")
that have been infringed by the Defendant.
2. Plaintiffs tiled this action on May 30, 2006, alleging that Defendant unlawfully
made use of a peer-to-peer computer network ("?2P Network") to download the Copyrighted
Recordings, distribute thern to the public, and/or make the Copyrighted Recordings available for
distribution to others. (See Doc. No. I.) The case was assigned to the Honorable Kent A.
Jordan.

Case 1:06-cv-00357-SLR Document 14 Filed 05/20/2008 Page 2 ot 3
3. Plaintiffs° process server served Defendant by personal service on June 9, 2006.
(See Doc. No. 5.)
4. Defendant did not answer or otherwise respond to the Complaint.
5. Judge Jordan was subsequently elevated to the United States Court of Appeals for
the Third Circuit. As a result, the case was referred to Magistrate Judge Mary Pat Thynge on
December 15, 2006, pending assignment to the judge that filled Judge }ordan’s vacancy.
6. Defendant remained unresponsive to the Complaint.
7. On February 8, 2007, Plaintiffs requested Entry of Default against Defendant.
The Clerk entered Default against Defendant on February 23, 2007.
8. There was no further action until the case was reassigned from the vacant
judgeship to the Honorable Sue L. Robinson and the Court issued the April 22, 2008 Order to
Show Cause.
9. Due to an internal administrative error, Plaintiffs counsei failed to tile an
Application for Entry of Default Judgment against Defendant after the Clerk’s Entry of Default.
Plaintiffs’ counsel sincerely apologizes to the Court for its oversight and is filing an Application
for Entry of Default J adgment against Defendant concurrently herewith. Plaintiffs acknowledge
that they should have filed the Application for Default Sudgment diligently after the Clerk
entered Default, and Plaintiffs beg the Court’s forgiveness in this matter.
10. Dismissal for faiiure to prosecute is a harsh sanction that should only be used in
extreme situations, such as when there is a clear record of delay or contempt. See Gran v.
Paeumo Abex Corp., 163 F.3d 411, 425 (7th Cir. 1998). Plaintiffs respectfully submit that they
have prosecuted this case in the past, that the delay was caused by an inadvertent error, and that
2

Case 1:06-cv-00357-SLR Document 14 Filed 05/20/2008 Page 3 of 3
Plaintiffs are attempting to move the litigation forward by tiling an Application for Entry of
Default Judgment against Defendant.
WHEREFORE, Plaintiffs respectfully request that the Court vacate its Order to Show
Cause dated April 22, 2008, and accept for filing the Application for Entry of Default Judgment
filed concurrently herewith. %
DATED: May 30, 2008 By: /
Robert S. Goldman (DE Bar No. 2508)
Lisa C. McLaughlin (DE Bar No. 3113)
PHILLIPS, GOLDMAN & SPENCE, P.A.
1200 North Broom Street
Wilmington, Delaware 19806
(N ew Castle County)
Telephone: 302—655~4200
Telecopier: 302-655421 0
Attorneys for Plaintiffs BMG MUSIC;
WARNER BROS. RECORDS INC.;
PRIORITY RECORDS LLC;
INTERSCOPE RECORDS; and
FONOVISA, INC.
3