ADT Security Services, Inc. v. Security One International, Inc. et al

Filing 102

ORDER re: NOTICE OF PARTIAL PRELIMINARY RULING AND REQUEST FOR SUPPLEMENTAL AUTHORITY IN ADVANCE OF THE HEARING. Signed by Judge Yvonne Gonzalez Rogers on 7/19/12. (fs, COURT STAFF) (Filed on 7/19/2012)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA

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ADT SECURITY SERVICES, INC.,
Plaintiff(s),

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v.

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Case No.: 11-CV-05149 YGR
NOTICE OF PARTIAL PRELIMINARY RULING
AND REQUEST FOR SUPPLEMENTAL
AUTHORITY IN ADVANCE OF THE HEARING

SECURITY ONE INT’L, INC. et al.,
Defendant(s).

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE NOTICE OF THE

Northern District of California

United States District Court

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FOLLOWING PRELIMINARY RULING AND REQUEST FOR SUPPLEMENTAL AUTHORITY FOR THE HEARING

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SCHEDULED ON JULY 24, 2012 AT 2:00 P.M.

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PRELIMINARY RULING ON THE MOTION TO DISMISS AS TO COUNT I OF THE SECOND
AMENDED COMPLAINT

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The Court has reviewed the parties’ papers and arguments, and is inclined to DENY that part of

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the Motion to Dismiss that seeks dismissal of Count I of the Second Amended Complaint on the basis

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that it is a successive Rule 12 motion. Having failed to raise his objection to Count I in his first

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motion to dismiss, Claudio Hand is now precluded under Rule 12(g) from raising the objection in a

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second motion to dismiss. Thus, the Court will not entertain argument addressing Count I of the

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Second Amended Complaint.

I.

Based on the foregoing, the Court will DENY IN PART that part of the Motion to Dismiss that

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seeks to dismiss Count I of the Second Amended Complaint on the basis that the motion is a

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successive Rule 12 motion.

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II.

REQUEST FOR SUPPLEMENTAL AUTHORITY

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The parties shall file a statement of supplemental authority regarding the following:

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1)

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Under the Lanham Act “a corporate officer or director is, in general, personally liable

for all torts which he authorizes or directs or in which he participates, notwithstanding that he acted as

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an agent of the corporation and not on his own behalf.” Coastal Abstract Serv., Inc. v. First Am. Title

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Ins. Co., 173 F.3d 725, 734 (9th Cir. 1999).
a)

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With pinpoint citations, and without argument, what legal authority supports

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ADT’s position that under the Lanham Act a corporate officer or director is personally liable

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for torts which he does not authorize, does not direct, and does not participate in, but to which

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he is willfully blind?
b)

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With pinpoint citations, and without argument, what legal authority supports

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Defendant’s position that under the Lanham Act a corporate officer or director is not

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personally liable for torts which he does not authorize, does not direct, and does not participate

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in, but to which he is willfully blind?
c)

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With pinpoint citations, and without argument, what legal authority supports

Northern District of California

United States District Court

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Defendant’s position that under the Lanham Act, alleging that the sole officer, director, and

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shareholder of a corporation “directs, authorizes, approves, participates in, [and] supervises”

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fraudulent acts, does not plead the circumstances of the fraud with particularity?

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2)

Count II alleges Vicarious Unfair Competition and False Advertising under the

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Lanham Act, 15 U.S.C. § 1125.

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a)

With pinpoint citations to legal authority, and without argument, what are the

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elements for a cause of action for Vicarious Unfair Competition under the Lanham Act, 15

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U.S.C. § 1125?
b)

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With pinpoint citations to legal authority, and without argument, what are the

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elements for a cause of action for Vicarious False Advertising under the Lanham Act, 15

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U.S.C. § 1125?

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3)

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Count III alleges Contributory Unfair Competition and False Advertising under the

Lanham Act, 15 U.S.C. § 1125. The parties dispute whether such a cause of action exists.
a)

With pinpoint citations, and without argument, what legal authority supports

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Defendant’s position that no cause of action exists for Contributory Unfair Competition or

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Contributory False Advertising under the Lanham Act?

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b)

For sake of argument, assuming that there are causes of action for

Contributory Unfair Competition and Contributory False Advertising under the Lanham Act:
i.

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With pinpoint citations to legal authority, and without argument, what

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are the elements for a cause of action for Contributory Unfair Competition under

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the Lanham Act, 15 U.S.C. § 1125?
ii.

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With pinpoint citations to legal authority, and without argument, what

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are the elements for a cause of action for Contributory False Advertising under the

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Lanham Act, 15 U.S.C. § 1125?

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No later than 12:00 p.m. on Monday, July 23, 2012, the parties shall file either jointly or

additional briefing. Cf. Civil L. R. 7-3(d). Copies of the cases should not be filed in the docket, but

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Northern District of California

separately a statement of supplemental authorities, with pinpoint citations, and without argument or

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United States District Court

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rather, Counsel should provide copies at the hearing. The parties will be given the opportunity at the

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hearing to explain their reliance on such authority.

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IT IS SO ORDERED.
Dated: July 19, 2012
_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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