Asis Internet Services et al v. Consumerbargaingiveaways, LLC et al

Filing 46

ORDER APPROVING APPLICATION TO AMEND OPPOSITION (whalc2, COURT STAFF) (Filed on 3/17/2009)

Case 3:08-cv-04856-WHA

Document 43-2

Filed 03/05/2009

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Jason K. Singleton, State Bar #166170 [e-mail] Richard E. Grabowski, State Bar #236207 [e-mail] SINGLETON LAW GROUP 611 "L" Street, Suite A Eureka, CA 95501 [phone] FAX [phone]

Attorneys for Plaintiffs, ASIS INTERNET SERVICES and JOEL HOUSEHOLTER

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) Case No. C-08-4856 WHA ASIS INTERNET SERVICES, a California corporation, and JOEL HOUSEHOLTER, dba ) KNEELAND ENGINEERING, dba FOGGY.NET, ) PLAINTIFFS' APPLICATION TO AMEND ) ) OPPOSITION WITH SUPPLEMENTAL Plaintiffs, ) MATERIALS TO DEFENDANTS' vs. ) MOTION TO DISMISS AND ) (PROPOSED) ORDER CONSUMERBARGAINGIVEAWAYS, LLC, et al., ) ) ) Defendants. ) Plaintiffs, ASIS INTERNET SERVICES and JOEL HOUSEHOLTER, request the Court's permission to amend their Opposition (filed as Docket 31) with supplemental materials. (See Civil Local Rule 7-3 and 7-4; also see the Court's Order of March 4, 2009 (Docket 42).) The supplemental materials have been incorporated in the original Opposition papers amended in a manner that keeps the paper within the 25 page requirement of Civil Local Rule 7-3(a). Plaintiff's wish to amend the opposition to add arguments and legal support for key issues within this matter. The basic argument, proposed by Defendants in their Motion to dismiss, is that California Business & Professions Code §17529.5 is preempted by the CAN SPAM Act of 2003 unless it sounds in common law fraud. Defendants' premise is based on the holding in the Northern District Court decision of Hoang v. Reunion.com, Inc., Slip Copy, 2008 WL 4542418 (N.D. Cal., October, 2008); relying on Omega World Travel, Inc. v.
APPLICATION TO FILE AMENDED OPPOSITION 1 C-08-4856 WHA

Case 3:08-cv-04856-WHA

Document 43-2

Filed 03/05/2009

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Mummagraphics, Inc., 469 F.3d 348, 353-56 (4th Cir.2006) and Kleffman v. Vonage Holdings Corp., 2007 WL 1518650, *3 (C.D. Cal. 2007). Further research has revealed that all of these cases are in fact decisions concerning consumers. Both ASIS and Joel

Householter are email service providers, not consumers within the definition of the statute. This makes Plaintiffs into third party representatives assigned by the legislature to bring actions, and Supreme Court decisions allow that they may rely on the interests of the general public in brining those actions. This distinction is key to this matter. In the amended paper Plaintiffs have separated the issue and provided support, legal and factual, as to why this distinction is important to the Court's decision in this case. Therefore, for good cause shown, Plaintiffs request that the Court allow the Amended Opposition.

SINGLETON LAW GROUP Dated: March 5, 2009 /s/ Richard E. Grabowski Jason K. Singleton Richard E. Grabowski Attorneys for Plaintiffs, ASIS INTERNET SERVICES and JOEL HOUSEHOLTER, dba FOGGY.NET

(PROPOSED) ORDER ALLOWING AMENDED OPPOSITION Plaintiffs' Application having come before the Court andDfor R good cause shown, it is IST
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hereby ordered that Plaintiffs' Application to file the Amended Opposition is granted.
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APPLICATION TO FILE AMENDED OPPOSITION

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March 16, 2009 DATED: _______________________

illiam ________________________________ Judge W HONORABLE WILLIAM H. ALSUP ER C UNITED STATES DISTRICT JUDGE N OF

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C-08-4856 WHA