Noll v. eBay, Inc et al

Filing 83

ORDER granting 69 Motion to Intervene; finding as moot 70 Motion to Dismiss by Judge Edward J. Davila. Rhythm Motor Sports LLC shall file its complaint in intervention as a separate docket entry on PACER/ECF no later than September 18, 2012. Plaintiffs shall file a consolidated complaint no later than October 2, 2012. (ejdlc4, COURT STAFF) (Filed on 9/4/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION
CASE NO. 5:CV 11-04585-EJD

RICHARD NOLL,

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ORDER GRANTING RHYTHM MOTOR
SPORTS LLC’S MOTION TO
INTERVENE AND DENYING
DEFENDANTS’ MOTION TO DISMISS AS
MOOT

Plaintiff,
For the Northern District of California

United States District Court

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v.
EBAY, INC., ET AL,

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Defendants.
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[Re: Docket Item Nos. 69, 70]

Presently before the court are Rhythm Motor Sports LLC’s (“Rhythm”) motion to intervene,

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for joinder and/or for substitution pro tanto, and Defendants Ebay Inc., Ebay Europe S.A.R.L. and

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Ebay International AG’s (collectively “Defendants”) motion to dismiss Plaintiff’s first amended

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complaint. Having reviewed the parties’ arguments, the court GRANTS Rhythm Motor Sports

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LLC’s motion to intervene, and DENIES Defendants’ motion to dismiss as moot.

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I. Motion to Intervene

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Rhythm seeks to intervene as a matter of right under Fed. R. Civ. Proc. 24(a), or in the

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alternative, permission to intervene under Fed. R. Civ. Proc. 24(b). Defendants submit a statement

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of partial non-opposition, in which they agree to add Rhythm as a plaintiff party “subject to eBay’s

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position...that Rhythm’s claims will be subject to the filing date of the consolidated complaint and

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will not relate back to the initial filing date of Mr. Noll’s complaint in this case.” The court declines

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to accept Defendants’ condition. The determination of whether Rhythm’s claims should relate back

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CASE NO. 5:CV 11-04585-EJD
ORDER GRANTING RHYTHM MOTOR SPORTS LLC’S MOTION TO INTERVENE AND DENYING
DEFENDANTS’ MOTION TO DISMISS AS MOOT

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to the initial filing date is not an appropriate consideration at this stage in the litigation. Defendants

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may pursue a statute of limitations defense as to Rhythm through dispositive motions and, if

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necessary, trial. Though styled as only a partial non-opposition, Defendants’ statement put forth no

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argument suggesting that Rhythm should not be permitted to intervene. Therefore, the court

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GRANTS Rhythm’s motion to intervene.

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II. Motion to Dismiss

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Also before the court is Defendants’ motion to dismiss Plaintiff’s first amended complaint.

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This motion is moot given the court’s decision on Rhythm’s motion to intervene. Defendants may

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file a revised motion to dismiss after Plaintiffs have filed their consolidated complaint.

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For the Northern District of California

United States District Court

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III. Conclusion
For the foregoing reasons, the court GRANTS Rhythm’s motion to intervene, and DENIES
Defendants’ motion to dismiss as moot.
Rhythm shall file its complaint in intervention as a separate docket entry on PACER/ECF no
later than September 18, 2012.
Plaintiffs shall file a consolidated complaint no later than October 2, 2012.

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IT IS SO ORDERED.

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Dated: September 4, 2012
EDWARD J. DAVILA
United States District Judge

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CASE NO. 5:CV 11-04585-EJD
ORDER GRANTING RHYTHM MOTOR SPORTS LLC’S MOTION TO INTERVENE AND DENYING
DEFENDANTS’ MOTION TO DISMISS AS MOOT