Oracle America, Inc. v. Service Key, LLC et al

Filing 196

ORDER by Judge ARMSTRONG granting 158 Motion to Strike (lrc, COURT STAFF) (Filed on 4/11/2013)

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1 2 UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 OAKLAND DIVISION 5 ORACLE AMERICA, INC., a Delaware Case No: C 12-00790 SBA 6 corporation, Plaintiff, 7 8 vs. ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT DLT-FSB’S COUNTERCLAIMS AND AFFIRMATIVE DEFENSE 9 SERVICE KEY, LLC, a Georgia limited liability company; ANGELA VINES; DLT Dkt. 158 10 FEDERAL BUSINESS SYSTEMS CORPORATION, a Delaware corporation; 11 and DOES 1–50, 12 Defendants. 13 14 15 On February 20, 2013, Plaintiff Oracle America, Inc. (“Oracle”) filed the instant 16 motion seeking to strike the first, second, third, fourth and fifth counterclaims for relief and 17 the twelfth affirmative defense in DLT Federal Business Systems Corporation’s (“DLT- 18 FSB”) Answer to Plaintiff’s Second Amended Complaint and Counterclaims, filed on 19 February 8, 2013, Dkt. 155. See Dkt. 158. Although opposition briefs are typically due 20 two weeks after a motion is filed, see Civ. L.R. 7-3(a), Oracle granted DLT-FSB’s request 21 for a two-day extension, see Zipes Decl. Ex. B, Dkt. 166-3. Despite this extension, DLT- 22 FBS failed to file any opposition. 23 This Court’s Standing Order is clear: “The failure of the opposing party to file a 24 memorandum of points and authorities in opposition to any motion shall constitute a 25 consent to the granting of the motion.” See Dkt. 31 at 5. That notwithstanding, the Court 26 finds that Oracle’s motion is well taken. DLT-FSB filed its new counterclaims and 27 affirmative defense after the deadline previously set by the Court. See Dkt. 59. However, 28 DLT-FSB failed to seek leave to modify the Court’s scheduling order based on a showing 1 of good cause. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 2 1992). As such, DLT-FSB’s unauthorized submission of new counterclaims and an 3 affirmative defense is improper. Accordingly, 4 IT IS HEREBY ORDERED THAT Plaintiff’s Motion to Strike Defendant DLT- 5 FSB’s Counterclaims and Affirmative Defense is GRANTED. This Order terminates 6 Docket 158. 7 8 IT IS SO ORDERED. Dated: April 11, 2013 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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