CollegeNET, Inc. v. A.C.N., Inc.

Filing 10

CollegeNET, Inc. v. A.C.N., Inc.

Doc. 10

Michael N. Zachary, OSB #04120 Email: [e-mail] Stephen J. Joncus, OSB # 01307 Email: [e-mail] KLARQUIST SPARKMAN, LLP 121 S.W. Salmon Street, Suite 1600 Portland, Oregon 97204 Telephone: [phone] Facsimile: 503-595-5301 Attorneys for Plaintiff CollegeNET, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

COLLEGENET, INC., a Delaware corporation, Plaintiff, v. A.C.N., INC., a Minnesota corporation, Defendant.

Civil No. 06-663-PK COLLEGENET'S BRIEF IN OPPOSITION TO A.C.N.'S MOTION FOR AN EXTENSION OF TIME TO FILE ITS ANSWER

COLLEGENET'S BRIEF IN OPPOSITION TO A.C.N.'S MOTION FOR AN EXTENSION OF TIME TO FILE ITS ANSWER
Dockets.Justia.com

ARGUMENT Defendant A.C.N., Inc. d/b/a AnyCollege.Net (hereinafter, "AnyCollege.Net"), was served with CollegeNET's Complaint on May 10, making its Answer due by May 30. By May 16, AnyCollege.Net's counsel was in communications with CollegeNET's counsel, where AnyCollege.Net was informed that CollegeNET was contemplating filing a motion for a preliminary injunction. AnyCollege.Net proceeded to alter its behavior with respect to one aspect of CollegeNET's Complaint, in the hopes that it could stave off CollegeNET's contemplated injunction motion. At the same time, AnyCollege.Net requested an extension of time to file its Answer. CollegeNET sought AnyCollege.Net's assurances that it would refrain from placing its name on web pages that were generated by CollegeNET. These negotiations stalled, as AnyCollege.Net countered with several conditions that CollegeNET could not accede to. Despite the lack of an agreement concerning AnyCollege.Net's actions, CollegeNET offered AnyCollege.Net a one week extension to file an Answer as a courtesy. AnyCollege.Net instead filed the instant motion, requesting until June 20 to file its Answer. AnyCollege.Net did not file its Answer on the due date or by one week later either; in fact, it has yet to file its Answer. The filing of its motion did not extend the date, and its Answer is now overdue. Even after AnyCollege.Net's Motion was filed, CollegeNET reiterated its offer of a one-week extension as a courtesy, contingent only upon AnyCollege.Net dropping its motion for an extension of time. AnyCollege.Net has declined to do so, necessitating this response. AnyCollege.Net's requested three week extension is unreasonable, and unnecessary. This is not a complex case. Further, AnyCollege.Net's continuing usage of a mark that is confusingly similar to CollegeNET's results in damage to CollegeNET on a daily basis. COLLEGENET'S BRIEF IN OPPOSITION TO A.C.N.'S MOTION FOR AN EXTENSION OF TIME TO FILE ITS ANSWER Page 1

AnyCollege.Net's Answer will help set the stage for discovery and enable it to progress in an efficient manner, which will lead to a quick and speedy resolution of CollegeNET's claims. AnyCollege.Net's delayed Answer also delays the case from moving forward. More importantly, AnyCollege.Net was obligated to Answer CollegeNET's Complaint by May 30. CollegeNET has never intended, nor does it presently intend, to alter or drop any claims in its Complaint. It has never suggested otherwise to AnyCollege.Net. The claims asserted against AnyCollege.Net are the same today as they were when AnyCollege.Net was initially served with CollegeNET's Complaint nearly four weeks ago. AnyCollege.Net's Answer is already a week overdue. While Rule 6 allows for extensions of time to be granted at the Court's discretion, they do not provide that a party may grant itself an extension by filing a motion for an extension of time in lieu of meeting a deadline established by the Rules. Absent the Court having granted an extension of time, AnyCollege.Net was obligated to file its Answer on May 30. AnyCollege.Net has effectively taken the one-week extension offered by CollegeNET, and takes more time with each passing day. AnyCollege.Net could have resolved the impasse upon which its requested extension hung by a telephone conference with the Court, which would have provided immediate and timely resolution, ahead of AnyCollege.Net's deadline to Answer. Instead, it decided to delay filing its Answer, taking the liberty of filing a motion for an extension of time (and assuming that the Court would grant its motion), ensuring at least its requested three-week delay due to the Court's standing briefing schedule, and necessitating the added expense of briefing this motion. For all of the foregoing reasons, CollegeNET respectfully requests that the Court deny AnyCollege.Net's motion, and order it to file its Answer to CollegeNET's Complaint immediately. Furthermore, CollegeNET requests the Court impose such measures as it sees fit COLLEGENET'S BRIEF IN OPPOSITION TO A.C.N.'S MOTION FOR AN EXTENSION OF TIME TO FILE ITS ANSWER Page 2

upon AnyCollege.Net for attempting to grant itself an extension by the mere act of filing a motion for one, in derogation of its obligations pursuant to the Federal Rules of Civil Procedure. Respectfully submitted,

Dated: June 6, 2006

By:

s/ Michael Zachary_____________________ Michael N. Zachary, OSB #04120 Email: [e-mail] Stephen J. Joncus, OSB # 01307 Email: [e-mail] KLARQUIST SPARKMAN, LLP 121 S.W. Salmon Street, Suite 1600 Portland, Oregon 97204 Telephone: [phone] Facsimile: 503-595-5301 Attorneys for Plaintiff CollegeNET, Inc.

COLLEGENET'S BRIEF IN OPPOSITION TO A.C.N.'S MOTION FOR AN EXTENSION OF TIME TO FILE ITS ANSWER Page 3

CERTIFICATE OF SERVICE The undersigned hereby certifies that on June 6, 2006, a true copy of the foregoing COLLEGENET'S BRIEF IN OPPOSITION TO A.C.N.'S MOTION FOR AN EXTENSION OF TIME TO FILE ITS ANSWER, was served by electronic and first-class, U.S. mail to: J. Peter Staples CHERNOFF, VILHAUER, MCCLUNG & STENZEL, LLP 1600 ODS Tower 601 SW Second Avenue Portland, OR 97204-3157 Telephone: [phone] Facsimile: 6503-228-4373 Email: [e-mail] Attorneys for Defendant A.C.N., Inc.

By: s/ Michael Zachary_____________________ Michael N. Zachary, OSB #04120 Email: [e-mail] Stephen J. Joncus, OSB # 01307 Email: [e-mail] KLARQUIST SPARKMAN, LLP 121 S.W. Salmon Street, Suite 1600 Portland, Oregon 97204 Telephone: [phone] Facsimile: 503-595-5301

CERTIFICATE OF SERVICE