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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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ORACLE AMERICA, INC., a Delaware

Case No: C 12-00790 SBA

6 corporation,

Plaintiff,

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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;
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Defendants.

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On February 20, 2013, Plaintiff Oracle America, Inc. (“Oracle”) filed the instant

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motion seeking to strike the first, second, third, fourth and fifth counterclaims for relief and

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the twelfth affirmative defense in DLT Federal Business Systems Corporation’s (“DLT-

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FSB”) Answer to Plaintiff’s Second Amended Complaint and Counterclaims, filed on

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February 8, 2013, Dkt. 155. See Dkt. 158. Although opposition briefs are typically due

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two weeks after a motion is filed, see Civ. L.R. 7-3(a), Oracle granted DLT-FSB’s request

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for a two-day extension, see Zipes Decl. Ex. B, Dkt. 166-3. Despite this extension, DLT-

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FBS failed to file any opposition.

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This Court’s Standing Order is clear: “The failure of the opposing party to file a

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memorandum of points and authorities in opposition to any motion shall constitute a

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consent to the granting of the motion.” See Dkt. 31 at 5. That notwithstanding, the Court

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finds that Oracle’s motion is well taken. DLT-FSB filed its new counterclaims and

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affirmative defense after the deadline previously set by the Court. See Dkt. 59. However,

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DLT-FSB failed to seek leave to modify the Court’s scheduling order based on a showing

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of good cause. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir.

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1992). As such, DLT-FSB’s unauthorized submission of new counterclaims and an

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affirmative defense is improper. Accordingly,

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IT IS HEREBY ORDERED THAT Plaintiff’s Motion to Strike Defendant DLT-

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FSB’s Counterclaims and Affirmative Defense is GRANTED. This Order terminates

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Docket 158.

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IT IS SO ORDERED.
Dated: April 11, 2013

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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