IO Group, Inc. v. Antelope Media, LLC

Filing 27

ORDER DISCHARGING ORDER TO SHOW CAUSE; STRIKING LETTERS FILED BY HERRMANN AND PALICKI; GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION; AFFORDING PLAINTIFF LEAVE T O SUPPLEMENT MISCELLANEOUS ADMINISTRATIVE REQUEST; CONTINUING CASE MANAGEMENT CONFERENCE; VACATING JANUARY 16, 2009 HEARING. The two letters signed by Herrmann and Palicki and filed by the Clerk on October 23, 2008 and January 5, 2009, respectively, are stricken. The November 18, 2008 order to show cause is discharged. Plaintiff shall file its First Amended Complaint within ten days of the date of this order. Plaintiff is afforded leave to supplement its Miscellaneous Administrative Request by f iling, no later than ten days from the date of this order, Exhibit A. The Case Management Conference is continued from January 30, 2009 to March 20, 2009, at 10:30 a.m.; a Joint Case Management Conference shall be filed no later than March 13, 2009. Signed by Judge Maxine M. Chesney on January 12, 2009. (mmclc1, COURT STAFF) (Filed on 1/12/2009)

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court is plaintiff IO Group, Inc.'s response, filed December 5, 2008, to the Court's November 18, 2008 order to show cause why the instant action should not be dismissed for lack of personal jurisdiction over defendant Antelope Media, Inc. ("Antelope"). Antelope has not filed a reply to plaintiff's response. Also before the Court are plaintiff's "Motion for Leave to File First Amended Complaint," "Motion for Preliminary Injunction," and "Miscellaneous Administrative Request Pursuant to Local Rule 7-11 for Leave to Take Discovery Prior to Rule 26 Conference," each of which was filed December 5, 2008. Antelope has not filed a response to plaintiff's motions or request. Having read v. ANTELOPE MEDIA, LLC, Defendant / United States District Court IO GROUP, INC., Plaintiff, No. C-08-4050 MMC ORDER DISCHARGING ORDER TO SHOW CAUSE; STRIKING LETTERS FILED BY HERRMANN AND PALICKI; GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION; AFFORDING PLAINTIFF LEAVE TO SUPPLEMENT MISCELLANEOUS ADMINISTRATIVE REQUEST; CONTINUING CASE MANAGEMENT CONFERENCE; VACATING JANUARY 16, 2009 HEARING IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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and considered the above-described filings, the Court finds the matters suitable for decision on the papers submitted, VACATES the hearing scheduled for January 16, 2009 on plaintiff's motions, and rules as follows: 1. Plaintiff has offered evidence sufficient to demonstrate Antelope is an Arizona corporation. (See Sperlein Decl., filed December 5, 2008, ¶ 2, Ex. A.) "A corporation may appear in federal court only through licensed counsel." See United States v. High Country Broadcasting Co., 3 F.3d 1244, 1245 (9th Cir. 1993). Consequently, the two letters signed by M. Herrmann ("Herrmann") and T. Palicki ("Palicki") and filed by the Clerk of the Court on October 23, 2008 and January 5, 2009, respectively, are hereby STRICKEN, for the reason that neither Herrmann nor Palicki is an attorney and, accordingly, neither can make an appearance on behalf of Antelope. In particular, neither Herrmann nor Palicki can assert defenses on behalf of Antelope.1 2. The order to show cause is hereby DISCHARGED, for the reason that Antelope has not filed a response to the complaint, and, accordingly, has not raised a defense of lack of personal jurisdiction. 3. Plaintiff's motion for leave to file a First Amended Complaint ("FAC") is hereby granted, for the reason that Antelope, the sole defendant, has not filed a response to the initial complaint. See Fed. R. Civ. P. 15(a). Plaintiff shall file its FAC within ten days of the date of this order. 4. To the extent plaintiff's motion for a preliminary injunction is directed at Sunrise Media, Ltd. ("Sunrise"), Herrmann, and Palicki, the motion is hereby DENIED, for the reason that Sunrise, Herrmann, and Palicki are not, at the present time, parties to the // // The Honorable Patricia V. Trumbull, to whom the above-titled action was previously assigned, overruled plaintiff's objection to the letter filed October 23, 2008, for the reason plaintiff, at that time, had not shown Antelope was a corporation as opposed to a partnership. Such ruling was without prejudice to plaintiff's offering evidence that Antelope was, in fact, a corporation. As noted, plaintiff has now offered such evidence. 2
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instant action.2 See Fed. R. Civ. P. 65(a)(1) ("The court may issue a preliminary injunction only on notice to the adverse party."). Such denial is without prejudice to plaintiff's renoticing the motion as to Sunrise, Herrmann, and/or Palicki, after plaintiff has filed the FAC and has effectuated service of process on such parties or party. To the extent plaintiff's motion for a preliminary injunction is directed at Antelope, the motion is hereby DENIED, for the reason that Antelope was "dissolved" on September 16, 2008, (see Sperlein Decl. Ex. A), and divested itself, on various dates in 2008, of its ownership interest in the websites on which, according to plaintiff, defendant engaged in infringing activities, (see id. ¶¶ 4-6; Exs. B, C). Under such circumstances, plaintiff has made "no showing of any real or immediate threat that [ ] plaintiff will be wronged again" by Antelope. See City of Los Angeles v. Lyons, 461 U.S. 95, 110 (1983) (setting forth standard for issuance of preliminary injunction); see also Ariz. Rev. Stat. § 10-1405 (providing dissolved corporation "shall not carry on any business except that business appropriate to wind up and liquidate its business and affairs"). 5. By its Miscellaneous Administrative Request, plaintiff seeks leave to serve certain subpoenas on third parties. In its proposed order granting said request, plaintiff seeks leave to serve subpoenas that are "substantially in the same form as the example attached to plaintiff's Miscellaneous Administrative Request [ ] as Exhibit A." (See "[Proposed] Order for Leave to Take Early Discovery".) Plaintiff has not, however, attached an exhibit to its Miscellaneous Administrative Request, nor otherwise submitted the example. Accordingly, plaintiff is hereby afforded leave to supplement its Miscellaneous Administrative Request by filing, no later than ten days from the date of this order, the above-referenced Exhibit A. // //

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Palicki.

In its proposed FAC, plaintiff seeks to add claims against Sunrise, Herrmann, and 3

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6. The Case Management Conference is hereby CONTINUED from January 30, 2009 to March 20, 2009, at 10:30 a.m.. A Joint Case Management Conference shall be filed no later than March 13, 2009. IT IS SO ORDERED.

Dated: January 12, 2009

MAXINE M. CHESNEY United States District Judge

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