Omni Innovations LLC v. Ascentive LLC et al

Filing 66

PROPOSED ORDER (Unsigned) re 65 MOTION to Dismiss and to Stay (Townsend, Roger)

Omni Innovations LLC v. Ascentive LLC et al

Doc. 66

Case 2:06-cv-01284-JCC

Document 66

Filed 02/22/2007

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants. OMNI INNOVATIONS, LLC, a Washington limited liability company; Emily Abbey, an individual, Plaintiffs, v. ASCENTIVE, LLC, a Delaware limited liability company; ADAM SCHRAN, individually and as part of his marital community; JOHN DOES, I-X,

The Honorable Thomas S. Zilly

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

NO. 06-CV-01284 TSZ [PROPOSED] ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND TO STAY

THIS MATTER comes before the Court on the Motion of Defendants Ascentive, LLC ("Ascentive") and Adam Schran ("Schran") (together, "Defendants") to dismiss pursuant to Fed. R. Civ. P 12(b)(6). Defendants also move to stay proceedings in the above-captioned matter until this Court enters judgment in Omni Innovations, LLC v. Virtumundo et al., No. CV06-0204JCC, W.D.Wash. (Coughenour, J.) ("Omni"). Having reviewed the First Amended Complaint in the above-captioned matter, as well as the
[PROPOSED] ORDER GRANTING DEFS.' MOT. TO DISMISS AND TO STAY CASE NO. 06-CV-01284 TSZ- 1

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP
505 Fifth Avenue South, Suite 610 Seattle, Washington 98104 phone: [phone] fax: [phone]

Dockets.Justia.com

Case 2:06-cv-01284-JCC

Document 66

Filed 02/22/2007

Page 2 of 2

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instant motion, Plaintiffs' response, and Defendants' reply, and also having reviewed the docket in Omni and the pleadings related thereto, the Court finds and rules as follows: 1. 2. Abbey fails to allege facts sufficient to state a claim upon which relief may be granted under FED. R. CIV. P. 12(b)(6). Abbey's claim under the under the CAN-SPAM Act of 2003, 15 U.S.C. § 7701 et seq. ("CAN-SPAM") is dismissed because she does not claim to be an Internet access service provider. 3. Abbey's claims under the Washington Commercial Electronic Mail Act (RCW 19.190) ("CEMA") and Washington Consumer Protection Act ("WCPA"), RCW 19.86.010 et seq., are dismissed because the only damage she alleges regarding those claims is "damage to Plaintiff as the interactive computer service", yet she does not claim to provide any interactive computer service. 4. Plaintiffs' CEMA and WCPA claims are preempted by CANSPAM to the extent their claims based upon immaterial violations of email header protocol. 5. All of Abbey's claims in the above-captioned matter are dismissed, and the parties and the clerk of the court are instructed to strike her name from the caption in future pleadings. 6. The Court finds that substantially similar and material facts are being adjudicated in another proceeding which is closely related to this case. Accordingly, the Court orders this entire lawsuit be stayed pending resolution of Omni. DATED this _____ day of ________________, 2007. _______________________________ HONORABLE THOMAS S. ZILLY UNITED STATES DISTRICT JUDGE
[PROPOSED] ORDER GRANTING DEFS.' MOT. TO DISMISS AND TO STAY CASE NO. 06-CV-01284 TSZ- 2

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP
505 Fifth Avenue South, Suite 610 Seattle, Washington 98104 phone: [phone] fax: [phone]