Mintel Learning Technology, Inc. v. Ambow Education Holding, Ltd et al

Filing 51

AMENDED ORDER re 50 ORDER GRANTING 43 Motion to Dismiss WITH LEAVE TO AMEND. Amended Pleadings due by 1/13/2012. Motion due by 2/3/2012. Opposition due due by 2/17/2012. Reply due by 2/24/2012. Motion Hearing set for 3/2/2012 09:00 AM in C ourtroom 4, 5th Floor, San Jose before Hon. Edward J. Davila. Further Case Management Conference set for 3/2/2012 10:00 AM in Courtroom 4, 5th Floor, San Jose. IT IS FURTHER ORDERED that this order which is amended solely to correct the date of the motion hearing and case management conference supersedes yesterday's earlier order in this case. Please see Order for further specifics. Signed by Judge Edward J. Davila on 1/6/2012. (ecg, COURT STAFF) (Filed on 1/6/2012) Modified text on 1/6/2012 (ecg, COURT STAFF).

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION CASE NO. 5:11-CV-01504-EJD MINTEL LEARNING TECHNOLOGY, INC., 11 For the Northern District of California United States District Court 10 12 AMENDED ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND Plaintiff, v. 13 AMBOW EDUCATION HOLDING, LTD., 14 15 [Re: Docket Item Nos. 43, 45, 46] Defendant. / 16 Presently before the court is the motion of Ambow Education Holding, Ltd. (“Ambow”) to 17 dismiss the complaint for failure to state a claim. The court has determined that the motion is 18 suitable for determination without oral argument pursuant to Civil L.R. 7-1(b). For the reasons set 19 forth below, the motion is granted. 20 In its order resolving issues of subject matter jurisdiction and service of process (Nov. 2, 21 2011, ECF No. 42), the court deemed service effective upon Ambow and ordered Ambow to 22 respond to the complaint on or before Nov. 28, 2011. Ambow timely filed a motion to dismiss the 23 complaint for failure to state a claim. Plaintiff Mintel Learning Technology, Inc. (“Mintel”) filed an 24 amended complaint on Dec. 5, 2011, without leave of court. Mintel’s opposition to Ambow’s motion 25 to dismiss does not address the motion’s substantive arguments, but instead requests that the court 26 allow withdrawal of the improperly-filed amended complaint and formally grant Mintel leave to 27 amend. Ambow’s reply in support of its motion to dismiss acts as an opposition to Mintel’s request 28 1 CASE NO. 5:11-CV-01504-EJD ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND 1 for leave to file its amended complaint. 2 The parties are correct that Mintel’s amended complaint (Dec. 5, 2011, ECF No. 45) was 3 improperly filed because Mintel failed to obtain leave of court. It is therefore stricken. Mintel’s 4 subsequent request for leave to file an amended complaint was also improper; it should have been 5 made as a noticed motion pursuant to Civil L.R. 7-2. Accordingly, it is denied. Ambow’s motion to 6 dismiss stands unopposed, so it is granted. Mintel is now granted leave to amend its complaint. 7 8 Good cause therefore appearing, IT IS HEREBY ORDERED that the Amended Complaint (Dec. 5, 2011, ECF No. 45) is STRICKEN. 9 IT IS FURTHER ORDERED that Mintel’s request for leave to amend the complaint (Opp. Mot. Dismiss, Dec. 12, 2011, ECF No. 46) is DENIED WITHOUT PREJUDICE for failing to 11 For the Northern District of California United States District Court 10 comply with Civil L.R. 7. 12 IT IS FURTHER ORDERED that Ambow’s Motion to Dismiss (Nov. 28, 2011, ECF No. 43) 13 is GRANTED WITH LEAVE TO AMEND. Mintel shall file an amended complaint on or before 14 January 13, 2012, or face dismissal of the action in its entirety. 15 IT IS FURTHER ORDERED that Ambow shall respond to any amended complaint on or 16 before February 3, 2012. If that response is a motion to dismiss, Mintel’s opposition shall be due 17 February 17, 2012, and Ambow’s reply shall be due February 24, 2012. That motion to dismiss will 18 be heard on March 2, 2012 at 9:00 a.m in Courtroom 4, 5th Floor, 280 S. First St., San Jose, 19 California. 20 21 IT IS FURTHER ORDERED that the Case Management Conference currently scheduled for January 6, 2012, is continued to March 2, 2012 at 10:00 a.m. 22 IT IS FURTHER ORDERED that this order—which is amended solely to correct the date of 23 the motion hearing and case management conference—supersedes yesterday’s earlier order in this 24 case. 25 IT IS SO ORDERED. 26 27 Dated: January 6, 2012 EDWARD J. DAVILA United States District Judge 28 2 CASE NO. 5:11-CV-01504-EJD ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

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