Filed: Mar. 08, 2018
Latest Update: Mar. 08, 2018
Summary: ORDER Re: STATUS JAMES A. TEILBORG , Senior District Judge . As of the Fourth Amended Complaint (Doc. 72) the following Defendants were named in this case: • Amazon.com Inc. • LG Company (Korea) • LG Chem Company (Korea) • Super Engine • EasyCredit Trade Hongkong Co., Limited d/b/a Super Engine • Various Fictitious Defendants. Defendant Amazon.com Inc. has answered and moved to dismiss. (Docs. 74 and 75). Discovery is ongoing as to this Defendant. Service on Defendant LG Company (Ko
Summary: ORDER Re: STATUS JAMES A. TEILBORG , Senior District Judge . As of the Fourth Amended Complaint (Doc. 72) the following Defendants were named in this case: • Amazon.com Inc. • LG Company (Korea) • LG Chem Company (Korea) • Super Engine • EasyCredit Trade Hongkong Co., Limited d/b/a Super Engine • Various Fictitious Defendants. Defendant Amazon.com Inc. has answered and moved to dismiss. (Docs. 74 and 75). Discovery is ongoing as to this Defendant. Service on Defendant LG Company (Kor..
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ORDER Re: STATUS
JAMES A. TEILBORG, Senior District Judge.
As of the Fourth Amended Complaint (Doc. 72) the following Defendants were named in this case:
• Amazon.com Inc.
• LG Company (Korea)
• LG Chem Company (Korea)
• Super Engine
• EasyCredit Trade Hongkong Co., Limited d/b/a Super Engine
• Various Fictitious Defendants.
Defendant Amazon.com Inc. has answered and moved to dismiss. (Docs. 74 and 75). Discovery is ongoing as to this Defendant.
Service on Defendant LG Company (Korea) was due by March 5, 2018. (Doc. 57). As the Court noted in its October 26, 2017 Order, a proof of service was required to be filed by March 6, 2018. (Doc. 57). No proof of service has been filed for Defendant LG Company (Korea). Accordingly, by this Order, this Defendant will be dismissed.
A proof of service for Defendant LG Chem Company (Korea) was filed on March 5, 2018, showing service was accomplished on November 22, 2017. (Doc. 80). Plaintiff must prosecute this case against this Defendant. See LR Civ. 41.1; Fed. R. Civ. P. 41(b).
Plaintiff added Defendant Super Engine in the Third Amended Complaint. (Doc. 33). Prior to filing the Fourth Amended Complaint, Plaintiff suggested Super Engine was not a real entity, but instead only a d/b/a. Specifically, Plaintiff stated "Plaintiff subsequently learned . . . that the legal name for Super Engine is EasyCredit Trade HongKong Co., Limited." (Doc. 69). Nonetheless, Plaintiff renamed Defendant Super Engine as a separate Defendant in the Fourth Amended Complaint. (Doc. 72). The Court can locate no record that Defendant Super Engine was served within the time limits of Federal Rule of Civil Procedure 4(m), specifically by December 19, 2017.1 Plaintiff will be required to show cause why Defendant Super Engine should not be dismissed.
Service on Defendant EasyCredit Trade Hongkong, Co., Limited d/b/a Super Engine is due by March 22, 2018. (Doc. 71). If Plaintiff fails to file a proof of service, this Defendant will be dismissed.
The Federal Rules of Civil Procedure do not permit the use of fictitious defendants. See, e.g., Fed. R. Civ. P. 10(a); Craig v. U.S., 413 F.2d 854, 856 (9th Cir.), cert. denied, 396 U.S. 987 (1969); Molnar v. Nat'l Broadcasting Co., 231 F.2d 684, 686-87 (9th Cir. 1956). Therefore all fictitious Defendants will be dismissed.
Based on the foregoing,
IT IS ORDERED that Defendant LC Company (Korea) is dismissed, without prejudice, for failure to serve.
IT IS FURTHER ORDERED that all fictitious defendants are dismissed, without prejudice.
IT IS FURTHER ORDERED that by March 23, 2018, Plaintiff shall show cause why Defendant Super Engine should not be dismissed for failure to serve.
