Brahmana v. Lembo et al

Filing 78

ORDER by Judge Whyte denying 54 Motion for Service and Dismissing defendant Conquest Technology, Limited. (rmwlc2, COURT STAFF) (Filed on 8/7/2009)

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ORDER DENYING PLAINTIFF'S REQUEST FOR SERVICE AND DISMISSING DEFENDANT CONQUEST TECHNOLOGY LIMITED--No. C-09-00106 RMW JAS

E-FILED on

08/07/09

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

METTEYYA BRAHMANA, Plaintiff, v. PHILLIP CHARLES LEMBO; CYBERDATA CORPORATION; NUMONIX, INC.; AND CONQUEST TECHNOLOGY LIMITED, Defendants.

No. C-09-00106 RMW ORDER DENYING PLAINTIFF'S REQUEST FOR SERVICE AND DISMISSING DEFENDANT CONQUEST TECHNOLOGY LIMITED

On June 10, 2009, plaintiff Metteyya Brahmana ("Brahmana") filed an ex parte request for the court to order the U.S. Marshalls to serve defendant Conquest Technology Limited ("Conquest") with a summons and Second Amended Complaint ("SAC"). On June 25, 2009, the court ordered Brahmana to show cause why Conquest should not be dismissed from the action because plaintiff's Second Amended Complaint ("SAC") fails to state a claim against it. Brahmana has responded and defendants Phillip Charles Lembo, Cyberdata Corporation ("CyberData"), and Numonix, Inc., have filed a brief in support of dismissal. For the reasons stated below, the court dismisses Conquest as a defendant and denies Brahmana's request for an order issuing a summons on Conquest.

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According to the allegations in the complaint, Conquest is a company "owned and controlled" by defendant Phillip Charles Lembo, and used for an improper business purpose. SAC ¶¶ 8, 20. But the complaint does not anywhere allege that Conquest itself took any action, or that Lembo did anything in his role as owner of Conquest. The complaint's allegations that mention Conquest allege that Conquest was involved in a scheme, with Lembo, to misappropriate intellectual property. As described in the complaint, those actions bear no relation to the actions of CyberData and Lembo that form the basis for plaintiffs claims. Plaintiff contends in his response that Conquest is the agent and/or alter ego of CyberData, but nothing in the complaint supports such a claim. Therefore, the claims against Conquest are dismissed. Plaintiff's request for service on Conquest is denied as moot. Plaintiff may amend his complaint within 20 days to state a claim against Conquest, if he can do so in good faith.

DATED:

08/07/09

RONALD M. WHYTE United States District Judge

ORDER DENYING PLAINTIFF'S REQUEST FOR SERVICE AND DISMISSING DEFENDANT CONQUEST TECHNOLOGY LIMITED--No. C-09-00106 RMW JAS 2

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Notice of this document has been sent to: Plaintiff: Metteyya Brahmana 2636 17th Avenue Box 79 Santa Cruz, CA 95062 831-212-2731 Counsel for Defendants: James Joseph Cook [e-mail]

Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program.

Dated:

08/07/09

JAS Chambers of Judge Whyte

ORDER DENYING PLAINTIFF'S REQUEST FOR SERVICE AND DISMISSING DEFENDANT CONQUEST TECHNOLOGY LIMITED--No. C-09-00106 RMW JAS 3