Ewert v. eBay, Inc.

Filing 56

ORDER by Judge Whyte granting 46 Motion for Leave to File; denying 49 Motion to Dismiss for Lack of Prosecution; vacating hearing on motions; scheduling case management conference for April 24, 2009 at 10:30 a.m.. (rmwlc2, COURT STAFF) (Filed on 3/23/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE AND GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT--No. C-07-02198 RMW MAG E-FILED on 03/23/09 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MICHAEL EWERT, Plaintiff, v. EBAY, INC., DOES 1 to 100, inclusive, Defendants. No. C-07-02198 RMW ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE AND GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT [Re Docket No. 46, 49] Defendant eBay, Inc. ("eBay") moves to dismiss plaintiff Michael Ewert's ("Ewert") complaint for failure to prosecute. Ewert opposes the motion, and moves for leave to file a second amended complaint. eBay's motion to dismiss for lack of prosecution is denied. Although ten months without action is not a desirable delay, it is not sufficient to justify dismissal without more prejudice than eBay has demonstrated. Plaintiff's motion for leave to file a second amended complaint is granted. The proposed amended complaint appears only to remove the claims on which the court sustained a motion to dismiss and add a claim for false advertising, which is also a result of the court's dismissal of the Auction Act claims. 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The hearing scheduled for Friday, March 27, 2009 on the present motions is hereby vacated. The parties shall appear for a case management conference on April 24, 2009 at 10:30 a.m.. DATED: 03/23/09 RONALD M. WHYTE United States District Judge ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE AND GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT--No. C-07-02198 RMW MAG 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of this document has been electronically sent to: Counsel for Plaintiff: Charles Stewart Bishop Patricia Ann Carlson John R. Fabry Counsel for Defendants: Heather Coe Meservy Lori Renee Ellis Ploeger Michael Graham Rhodes hmeservy@cooley.com lploeger@cooley.com rhodesmg@cooley.com cbishop@connbish.com pcarltex@sbcglobal.net jfabry@williamskherkher.com Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program. Dated: 03/23/09 JAS Chambers of Judge Whyte ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE AND GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT--No. C-07-02198 RMW MAG 3