Gordon v. Impulse Marketing Group Inc, No. 2:2004cv05125 - Document 356 (E.D. Wash. 2006)
Court Description: ORDER Granting in Part and Denying in Part 313 Motion to Amend Complaint; Finding as Moot 317 Motion to Expedite; Denying 354 Motion to Expedite . Signed by Judge Fred Van Sickle. (SAP, Case Administrator)
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Gordon v. Impulse Marketing Group Inc Doc. 356 Case 2:04-cv-05125-FVS Document 356 Filed 05/02/2006 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON 3 4 5 JAMES S. GORDON, JR., an individual residing in Benton County, Washington, 6 Plaintiff, ORDER 7 v. 8 9 10 IMPULSE MARKETING GROUP, INC.,a Nevada Corporation, Defendant. 11 12 No. CV-04-5125-FVS IMPULSE MARKETING GROUP, INC., 13 Third-Party Plaintiff, 14 v. 15 16 17 BONNIE GORDON, JAMES S. GORDON, III, JONATHAN GORDON, JAMILA GORDON, ROBERT PRITCHETT and EMILY ABBEY, 18 Third-Party Defendants. 19 20 21 22 23 24 25 26 BEFORE THE COURT is Plaintiff’s Motion to Amend Complaint (Ct. Rec. 313). Plaintiff is represented by Robert Siegel. Defendant is represented by Floyd Ivey, Sean Moynihan, and Peter Glantz. The Third-Party Defendants are proceeding pro se. BACKGROUND Plaintiff, James Gordon, is a Washington resident and the registered user of the internet domain name “Gordonworks.com.” ORDER - 1 Dockets.Justia.com Case 2:04-cv-05125-FVS Document 356 Filed 05/02/2006 1 Defendant, Impulse Marketing Group, Inc. (“Impulse Marketing”), a 2 Nevada corporation, is an electronic marketing company that transacts 3 business with Washington by sending commercial electronic mail 4 messages (email) to Washington state residents. 5 operates by collecting personally identifiable information from 6 individuals who sign up to receive free products and/or services at 7 websites run by Impulse Marketing and/or its marketing partners. 8 consideration for receiving free products and/or services from an 9 Impulse Marketing related website, it requires that individuals using 10 its websites agree to submit accurate personal subscriber information 11 (“Subscriber Profile”). 12 individuals grant Impulse Marketing the right transfer the Subscriber 13 Profiles to third parties for marketing purposes. 14 subscribes revenue from the licensing and/or use of accurate 15 Subscriber Profiles. Impulse Marketing In By submitting their Subscriber Profile, Impulse Marketing 16 Plaintiff's Complaint alleges Impulse Marketing violated 17 Washington's Commercial Electronic Mail Act, RCW § 19.190 et seq., 18 and Washington's Consumer Protection Act, RCW § 19.86 et seq., by 19 initiating and/or conspiring with others to initiate unsolicited 20 commercial emails to various addresses at Plaintiff's domain, 21 “Gordonworks.com”. 22 Marketing’s motion to dismiss Plaintiff’s Complaint. 23 2005, Impulse Marketing filed five counterclaims against Plaintiff 24 Gordon and five separate causes of action against each of the Third 25 Party Defendants. 26 Second Amended Third-Party Complaint, which alleges claims against ORDER - 2 On July 1, 2005, the Court denied Impulse On September 6, On November 28, 2005, Impulse Marketing filed a Case 2:04-cv-05125-FVS Document 356 Filed 05/02/2006 1 the Third-Party Defendants for (1) fraud and deceit; (2) tortious 2 interference with business relationships; (3) contribution and 3 indemnity; (4) breach of contract; and (5) injunctive relief. 4 Plaintiff now seeks leave to file an Amended Complaint. The 5 Amended Complaint seeks to add claims under the Federal Can-Spam Act 6 (15 U.S.C. § 7701 et seq.), Washington’s Deceptive Offers statute 7 (RCW 19.170), Washington’s Identity Crimes statute (RCW 9.35), and a 8 new provision of the CEMA (RCW 19.190.080). 9 also seeks to add additional defendants, Jeffrey Goldstein, Kenneth The Amended Complaint 10 Adamson, and Phillip Huston, officers and/or directors of Impulse 11 Marketing. 12 because they had knowledge of, participated in, and/or approved the 13 alleged unlawful conduct by the Defendant Impulse Marketing. 14 Finally, the Amended Complaint seeks to add an additional plaintiff, 15 Omni Innovations, LLC, a Washington company that owns the servers on 16 which the domains hosting some of the email addresses that received 17 some of the alleged unlawful emails at issue in this action. 18 Plaintiff contends Omni is entitled to assert claims under the 19 Federal Can-Spam Act. Plaintiff alleges these individuals are personally liable 20 DISCUSSION 21 When an answer has been filed, a plaintiff may amend its 22 complaint “only by leave of court or by written consent of the 23 adverse party ....” 24 grant a motion for leave to amend a complaint rests in the sound 25 discretion of the trial court. 26 Service, 87 F.3d 339, 343 (9th Cir. 1996). ORDER - 3 Fed.R.Civ.P. 15(a). The decision of whether to Swanson v. United States Forest Leave to amend "shall be Case 2:04-cv-05125-FVS Document 356 Filed 05/02/2006 1 freely given when justice so requires.” Id. In exercising its 2 discretion, the Court is to be guided by the purpose of Rule 15, 3 which is to facilitate decisions on the merits rather than a 4 determination based on pleadings or technicalities. 5 203 F.3d 1122, 1127 (9th Cir. 2000). 6 held like other courts that the rule is to be applied with extreme 7 liberaltiy. 8 1051 (9th Cir. 2003) (citations omitted). 9 this policy is subject to the qualification that the amendment not Lopez v. Smith, Thus, the Ninth Circuit has Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, However, application of 10 cause the defendant undue prejudice, is not sought in bad faith, and 11 is not futile. 12 Additionally, the Court may consider the factor of undue delay. 13 at 758. 14 motion to amend. 15 (9th Cir. 1973) (reversing denial of motion for leave to amend where 16 court made a finding of undue delay but did not provide a 17 contemporaneous specific finding of prejudice to the opposing party, 18 bad faith by the moving party or futility of amendment). 19 consideration of prejudice to the opposing party that carries the 20 greatest weight. 21 omitted). 22 prejudice.” 23 Cir. 1987). 24 Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999). Id. Undue delay by itself is insufficient to justify denying a See Howey v. United States, 481 F.2d 1187, 1190 It is the Eminence Capital, 316 F.3d at 1051 (citations The opposing party “bears the burden of showing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Here, Defendant argues it will be unduly prejudiced by the 25 filing of an amended complaint because additional causes of action 26 and the naming of additional parties will require additional ORDER - 4 Case 2:04-cv-05125-FVS Document 356 Filed 05/02/2006 1 discovery. 2 in a discovery dispute involving the existing claims. 3 existing scheduling order needs to be revised, regardless of whether 4 the Court allows the filing of an amended complaint. 5 opposes the filing of an amended complaint on the basis that this 6 will necessitate the filing of a motion to dismiss because 7 Plaintiff’s new claims are without merit. 8 9 This is true, but the parties are currently still engaged Moreover, the Defendant also The Court finds no evidence of bad faith on the part of the Plaintiff. Further, the Court finds that Defendant will not be 10 prejudiced by the filing of the proposed amended complaint as long as 11 the case is rescheduled to allow for discovery of the new claims. 12 Further, at this juncture, the Court cannot determine that any of the 13 proposed new causes of action are futile. 14 Ninth Circuit's command that Rule 15 is to be applied with "extreme 15 liberality", see supra, the Court grants Plaintiff's request to file 16 an amended complaint asserting additional causes of action and naming 17 an additional party defendant. 18 an additional party plaintiff is denied. 19 IT IS HEREBY ORDERED: 20 1. 21 Therefore, in light of the However, Plaintiff's request to name Accordingly, Plaintiff’s Motion to Amend Complaint (Ct. Rec. 313) is GRANTED IN PART AND DENIED IN PART. 22 2. Plaintiff's Motion to Expedite (Ct. Rec. 317) is MOOT. 23 3. Defendant's Expedited Motion for Hearing of Plaintiff's 24 Motion to Amend Complaint With Oral Argument (Ct. Rec. 354) is 25 DENIED. 26 and determines oral argument is not necessary. Pursuant to LR 7.1(h)(3), the Court exercises its discretion ORDER - 5 Case 2:04-cv-05125-FVS 1 2 Document 356 Filed 05/02/2006 // IT IS SO ORDERED. The District Court Executive is hereby 3 directed to enter this Order, furnish copies to counsel and to the 4 Third Party Defendants who are proceeding pro se. 5 DATED this 2nd day of May, 2006. 6 s/ Fred Van Sickle Fred Van Sickle United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER - 6
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