Jenkins et al v. Mod.com

Filing 53

ORDER TO SHOW CAUSE. Signed by Judge Jeffrey S. White on 12/1/08. (jjo, COURT STAFF) (Filed on 12/1/2008)

1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ANN JENKINS, et al., Plaintiff, v. TUCOWS, INC., Defendant. / No. C 07-03112 JSW ORDER TO SHOW CAUSE

United States District Court

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For the Northern District of California

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On June 13, 2007, Plaintiffs Ann and Ernest Jenkins ("Plaintiffs") filed this lawsuit against the domain name "Mod.com," and alleged a in rem action for cybersquatting. After Mod.com failed to appear, Plaintiffs filed a motion for default judgment, which was referred to Magistrate Judge Chen for a report and recommendation. (Docket Nos. 23, 27.) On April 2, 2008, Magistrate Judge Chen issued an Order requiring the Plaintiffs to provide supplemental briefing and evidence on the motion. (Docket No. 28.) April 9, 2008, Plaintiffs filed a notice of withdrawal of their motion for default judgment. (Docket No. 29.) Thereafter, this Court issued Orders requiring Plaintiffs to submit a status report to the Court, addressing whether they intended to dismiss this case or whether they intended to re-file a motion for default judgment. (Docket Nos. 30, 31.) In response, on April 22, 2008, Plaintiffs filed an amended complaint, in which they dropped Mod.com as a defendant, and added Tucows, Inc., as a defendant and asserted claims for relief of conversion and trover. (Docket No. 32.) Tucows, Inc. subsequently moved to dismiss for lack of jurisdiction. After hearing argument on the motion, the Court ordered the parties to engage in

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jurisdictional discovery, and ordered supplemental briefing on the issue of personal jurisdiction. (Docket Nos. 45, 47.) On November 24, 2008, Plaintiffs and Tucows, Inc. stipulated to the filing of a second amended complaint, which drops Tucows, Inc. as a defendant and adds as defendants Robert Pooke and Kevin Dillon. (Docket Nos. 49, 50.) Based on the allegations in the amended complaint, Messrs. Pooke and Dillon are not affiliated with Tucows, Inc. "A party may amend its pleading once as a matter of course: (A) before being served with a responsive pleading; or (B) within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar." Fed. R. Civ. P. 15(a)(1). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Given the length of time that this case has been pending, and in light of Plaintiffs' prior amendment dismissing the original defendant and the original claim and adding new claims against Tucows, Inc., Plaintiffs are HEREBY ORDERED to show cause why the amendment is permissible under Rule 15, and why the amended complaint should not be filed as an separate action. Plaintiffs' response to this Order to Show Cause shall be due on December 12, 2008. It is FURTHER ORDERED that Plaintiffs shall file a formal notice of dismissal of Tucows, Inc. by that date. If is FURTHER ORDERED that, in light of the proposed amendment, the motion to dismiss for lack of jurisdiction filed by Tucows, Inc. is DEEMED MOOT, and the briefing schedule set by the Court in its order permitting jurisdictional discovery is VACATED. IT IS SO ORDERED.

United States District Court

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For the Northern District of California

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Dated: December 1, 2008

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

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