Federal Trade Commission v. Swish Marketing, Inc et al

Filing 69

ORDER RE: #64 GRANTING ADMINISTRATIVE MOTION TO FILE AMENDED COMPLAINT. Signed by Judge Richard Seeborg on 03/12/2010. (rslc3, COURT STAFF) (Filed on 3/12/2010)

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*E-Filed 03/12/2010*

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION FEDERAL TRADE COMMISSION, Plaintiff, v. MARK BENNING, et al., Defendants. _________________________________/ On February 22, 2010 this Court issued an order granting Defendant Benning's motion to dismiss the FTC's Complaint. In the order, the Court granted the Commission leave to amend its Complaint but did not set a deadline by which it needed to do so. On March 8, 2010, Benning filed an administrative motion, pursuant to Local Rule 7-11, requesting that the Court impose a filing deadline. The Commission timely opposed the motion; it contends that an administrative motion is an improper vehicle for Benning's request. Local Rule 7-11 provides that "a party may require a Court order with respect to miscellaneous administrative matters, not otherwise governed by a federal statute, Federal or local rule or standing order of the assigned judge." The Commission argues that the scheduling of amended pleadings is governed by Federal Rules of Civil Procedure 15(a)(2) and 16(b)(3)(A). Additionally, the FTC points out that Local Rule 16-10 states that a case 1 No. C 09-03814 RS ORDER GRANTING ADMINISTRATIVE REQUEST TO SET DEADLINE TO FILE AMENDED COMPLAINT

United States District Court

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For the Northern District of California

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NO. C 0903814 RS ORDER

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management order should be used for "establishing deadlines for joining parties and amending pleadings." While the Commission's quotations are accurately transcribed, the rules it cites contemplate a situation where a party seeks to amend a pleading that is already in existence. Once the Court dismissed the Commission's Complaint (at least as it applied to Benning), this was no longer the case. In light of the unusual circumstance this Court created when it dismissed the Complaint but did not impose a filing deadline, Benning's motion falls within the spirit of Local Rule 7-11. Therefore, good cause appearing, the FTC shall file its amended complaint on or before April 5, 2010. IT IS SO ORDERED. Dated: 03/12/2010 RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

United States District Court

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For the Northern District of California

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NO. C 0903814 RS ORDER