Allphin v. Peter K. Fitness, LLP et al

Filing 39

ORDER to Vacate Entry of Default and Requesting Clarification re 38 Third Party Complaint, filed by Peter K. Fitness, LLP, Peter K. Fitness, LLC, 37 MOTION for Dismissal Without Prejudice and MOTION to Vacate Entry of Default Judgment filed by Peter T Kofitsas, Peter K. Fitness, LLP, Peter K. Fitness, LLC. Signed by Judge Lucy H. Koh on July 8, 2013. (lhklc2, COURT STAFF) (Filed on 7/8/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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SONDRA J. ALLPHIN,
Plaintiff,
v.
PETER K FITNESS, LLC; PETER T.
KOFITSAS; FULCO FULFILLMENT, INC.;
and DOES 1-50, inclusive,

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Defendants.

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PETER K. FITNESS, LLC, a New Jersey
Limited Liability Company,

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Third-Party Plaintiff,
v.
IDEAL JACOBS CORPORATION, IDEAL
JACOBS (XIAMEN) CORPORATION,
ANDREW CONRAD JACOBS, XIAMEN
IDEAL JACOBS INTERNATIONAL
LIMITED, IDEAL JACOBS XIAMEN
CORPORATION, IDEAL JACOBS
MALAYSIA CORPORATION
Third-Party Defendants.

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Case No.: 13-CV-01338-LHK
ORDER GRANTING REQUEST TO
VACATE ENTRY OF DEFAULT AND
REQUESTING CLARIFICATION

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Case No.: 13-CV-01338
ORDER GRANTING REQUEST TO VACATE ENTRY OF DEFAULT AND REQUESTING
CLARIFICATION

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On March 25, 2013, Third-Party Plaintiff Peter K. Fitness, Inc. (“Peter K. Fitness”) filed a

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Third-Party Complaint, naming as Defendants Ideal Jacobs Corporation, and Ideal Jacobs

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(Xiamen) Corporation (“Ideal Jacobs (Xiamen)”). ECF No. 4.

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On May 28, 2013, Peter K. Fitness filed a request for entry of default against Ideal Jacobs

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(Xiamen). ECF No. 24. Default was entered as to Ideal Jacobs (Xiamen) on May 29, 2013. ECF

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No. 25.

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On June 5, 2013, the parties filed a stipulation to file an Amended Third-Party Complaint,
naming the original two Defendants and several others, as reflected in the caption of this action.

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United States District Court
For the Northern District of California

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ECF No. 27. The Court granted the stipulation on June 7, 2013. ECF No. 31. Third-Party

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Defendant Andrew Conrad Jacobs filed an Answer to the Amended Third-Party Complaint on June

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27, 2013, alleging in relevant part that Ideal Jacobs (Xiamen) was dissolved on or about July 26,

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2011. ECF No. 36, at 2.

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On July 1, 2013, Peter K. Fitness filed a request to vacate the May 29, 2013 Default entered

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against Ideal Jacobs (Xiamen), and to dismiss Ideal Jacobs (Xiamen), “a dissolved New Jersey

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Corporation,” from this action without prejudice. ECF No. 37. Accordingly, the Court VACATES

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the May 29, 2013 Default entered against Ideal Jacobs (Xiamen).

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However, on July 2, 2013, Peter K. Fitness filed a new Amended Third Party-Complaint,

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again naming Ideal Jacobs (Xiamen) as a Defendant. ECF No. 38. The Court requests clarification

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from Peter K. Fitness as to whether the July 2, 2013 filing constitutes a Second Amended

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Complaint, and whether Peter K. Fitness continues to seek the dismissal without prejudice of Ideal

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Jacobs (Xiamen).

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IT IS SO ORDERED.

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Dated: July 8, 2013

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 13-CV-01338
ORDER GRANTING REQUEST TO VACATE ENTRY OF DEFAULT AND REQUESTING
CLARIFICATION