Blocker v. Bandmine.com et al

Filing 84

OPINION and ORDER ADOPTING Judge Acosta's Amended Findings and Recommendation as my own opinion. Defendant eBay's Motion 8 to Dismiss Plaintiff's First Amended Complaint with prejudice and without leave to amend is GRANTED. Defendant Webnames' Motion 29 to Dismiss for lack of jurisdiction is GRANTED. Blocker's claims against Bandmine are DISMISSED for lack of timely service. Defendant eBay's Motion for Sanctions 29 is DENIED. Plaintiff may file an amended complaint against Defendant Webnames within 30 days of the filing date of this order. IT IS SO ORDERED. Signed on 9/26/17 by Chief United States District Judge Michael W. Mosman.(copy mailed to Tyrone Blocker) (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

TYRONE BLOCKER,
No. 3:16-cv-1709-AC
Plaintiff,
OPINION AND ORDER
v.

BANDMINE.COM, et al.,
Defendants.

MOSMAN,J.,
On August 25, 207, Magistrate Judge John V. Acosta issued his Findings and
Reconnnendation ("F&R") [75], reconnnending GRANTING Defendant eBay, Inc's ("eBay")
Motion to Dismiss [8] Plaintiff Tyrone Blocker's ("Blocker") First Amended Complaint1 with
prejudice and without leave to amend, GRANTING Defendant Webnames CA Inc. 's
("Webnames") motion to dismiss [29] for failure to state a claim with leave to amend, and
DISMISSING Blocker's claim against Bandmine.com ("Bandmine") for lack of timely service.
Blocker filed objections and amended objections, which the Court accepted. Defendant
Webnames responded to the objections, and Defendant eBay responded to the amended
objections.

1

After the parties completed their briefmg on Defendants' Motion to Dismiss, Blocker filed a First Amended
Complaint [56]. In light of the Amended Complaint, Judge Acosta ordered Defendants to file supplemental briefs
addressing to extent to which Plaintiffs amendments cured the defects asserted in Defendants' Motions to Dismiss,

if at all. Defendants filed supplemental briefing.

1 - OPINION AND ORDER

DISCUSSION
The magistrate judge makes only reeommendations to the court, to which any party may
file written objections. The court is not bound by the recommendations of the magistrate judge,
but retains responsibility for making the final determination. The court is generally required to
make a de nova determination regarding those portions of the report or specified findings or
recommendations as to which an objection is made. 28 U.S.C. § 636(b)(l)(C). However, the
court is not required to review, de novo or under any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of the F&R to which no objections are
addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328
F.3d JI 14, 1121 (9th Cir. 2003). While the level of scrutiny with which I am required to review
the F&R depends on whether or not objection<> have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(l)(C).
Upon careful review, I agree with Judge Acosta's recommendations and ADOPT the
Amended Findings and Recommendation [75] as my own opinion. Defendant eBay's Motion to
Dismiss [8] Plaintiffs' First Amended Complaint with prejudice and without leave to amend is
GRANTED. Defendant Webnames' Motion to Dismiss [29] for lack of jurisdiction is
GRANTED. Blocker's claims against Bandmine are DISMISSED for lack of timely service.
Defendant eBay's Motion for Sanctions [29] is DENIED. Plaintiff, however, is
cautioned that any attempts to file amended complaints naming eBay as a defendant or to file
subsequent lawsuits against eBay arising from the same transactional nucleus of facts may
support a finding ofbad faith, exposing Blocker to sanctions under Section 1927, Rule 11, or the
Court's inherent power to sanction.
Plaintiff may file an amended complaint against Defendant Webnames. Any amended
complaint must remedy the jurisdit.'tional defects present in the Complaint and First Amended
2 ···· OPINION AND ORDER

Complaint and allege suffieient faets to establish Blocker's interest in the intelleetual property at
issue in his claims. Additionally, any amended complaint must be filed within thirty days of the
date this order is filed. Failure to file an amended complaint may result in dismissal of this case.
IT IS SO ORDERED.
DATED

this'£'.,~ day of September, 2017.

(\J\j\JJ/\/W{v~
MICHAEL W. MOSMAjN
Chief United StatesJli;><fict Judge

3 - OPINION AND ORDER