Microsoft Corporation v. Pak et al
Filing
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ORDER that 30 Third Party Complaint is dismissed without prejudice. The clerk of court is instructed to close the case. Signed by Chief Judge Gloria M. Navarro on 8/3/17. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MICROSOFT CORPORATION,
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Plaintiff,
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JULIANNA PAK, et al.,
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Defendants.
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Case No.: 2:16-cv-0452-GMN-VCF
ORDER
On April 7, 2017, the Court entered a Stipulated Permanent Injunction and Consent
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Judgment against Defendants Julianna Pak and Mark Pak (collectively “Defendants”), which
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resolved Plaintiff Microsoft Corporation’s (“Plaintiff’s) claims against Defendants. (ECF Nos.
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45, 46). This Consent Judgment, however, did not address Defendants’ Third-Party Complaint,
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which asserts claims against fictitious “John Doe” Third-Party Defendants.
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As a general rule, “the use of Doe pleading is disfavored in federal court.” Turner v.
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County of Los Angeles, 18 F. App’x 592, 596 (9th Cir. 2001); see also Graziose v. Am. Home
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Prod. Corp., 202 F.R.D. 638, 643 (D. Nev. 2001) (“If there are unknown persons or entities,
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whose role is known, that fact should be expressed in the complaint, but it is unnecessary and
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improper to include ‘Doe’ parties in the pleadings.”). When pleading-amendment deadlines
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have expired and no leave to amend a complaint has been requested, a party is no longer
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entitled to substitute new defendants for fictitious defendants. Romero v. Nevada Dep’t of
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Corr., No. 2:08-CV-808-JAD-VCF, 2013 WL 6206705, at *4 (D. Nev. Nov. 27, 2013); see
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also Maestrini v. City and County of San Francisco, No. C 07-2941 PJH, 2009 WL 814510, at
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*11-12 (N.D.Cal. Mar. 26, 2009).
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Here, the deadline to amend the pleadings and add parties was August 23, 2016.
Defendants have failed to substitute new parties for the fictitious ones or request additional
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time to do so. As the deadline to amend the pleadings has expired, Defendants cannot possibly
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win relief on their Third-Party Complaint.
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On July 19, 2017, the Court issued a Minute Order requiring Defendants to respond to
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the Court’s concerns. The Court warned that failure to respond would constitute consent to the
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dismissal of the Third-Party Complaint. See Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991
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(9th Cir. 1987) (stating that a court may dismiss a complaint sua sponte for failure to state a
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claim). To date, Defendants have not responded to the Court’s Order, and the deadline to do so
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has now passed. Accordingly, IT IS HEREBY ORDERED that the Third-Party Complaint is
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dismissed without prejudice.
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The clerk of court is instructed to close the case.
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DATED this _____ day of August, 2017.
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___________________________________
Gloria M. Navarro, Chief Judge
United States District Court
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