XL Marketing Corp. et al v. Kirby

Filing 61

ORDER by Judge Hamilton denying 54 Motion for Partial Summary Judgment; finding as moot 56 Ex Parte Application (pjhlc2, COURT STAFF) (Filed on 1/15/2014)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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XL MARKETING CORP., et al.,
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Plaintiffs,

No. C 11-5107 PJH

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v.
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KRISTINA KIRBY,
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For the Northern District of California

United States District Court

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ORDER DENYING MOTION FOR
PARTIAL SUMMARY JUDGMENT;
ORDER TO SHOW CAUSE RE
SUBJECT MATTER JURISDICTION

Defendant.
_______________________________/

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Defendant’s motion for partial summary judgment came on for hearing before this

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court on January 15, 2014. Plaintiffs and counter-defendants XL Marketing Corp., et al.

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(“plaintiffs”) appeared through their counsel, Leeor Neta. Defendant and counter-plaintiff

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Kristina Kirby (“defendant” or “Kirby”) appeared through her counsel, Daniel Balsam.

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Having read the papers filed in conjunction with the motion and carefully considered the

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arguments and the relevant legal authority, and good cause appearing, the court DENIES

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Kirby’s motion for the reasons stated at the hearing. Kirby seeks a ruling regarding the

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scope of federal CAN-SPAM preemption in the abstract, and presents no actual facts in her

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motion. As such, the court finds that Kirby seeks an advisory opinion, and thus DENIES

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her motion for partial summary judgment. The court also DENIES as moot plaintiffs’

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“application to strike” Kirby’s motion.

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At the hearing, the court also noted that the jurisdictional basis for this case is

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unclear, now that it is no longer consolidated with Davison v. Riley. Accordingly, the court

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orders plaintiffs to show cause as to why this case should not be dismissed for lack of

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subject matter jurisdiction. Plaintiffs shall have until January 29, 2014 to file a response to

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this order, and Kirby shall have until February 12, 2014 to respond to plaintiffs’ filing.

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Finally, to remove any doubt, this case shall remain stayed for all purposes other
than the OSC until the court rules otherwise.
IT IS SO ORDERED.
Dated: January 15, 2014
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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