Opinion
ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION; AFFORDING PLAINTIFF LEAVE TO SUPPLEMENT REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS SECOND AMENDED COUNTERCLAIM; DEFERRING DECISION ON MOTION TO DISMISS SECOND AMENDED COUNTERCLAIM; VACATING HEARING; DENYING AS MOOT DEFENDANT'S EX PARTE APPLICATION TO CONTINUE HEARING
MAXINE CHESNEY, District Judge.
Before the Court are two motions filed by plaintiff/counter-defendant Pentalpha Macau Commercial Offshore Limited ("Pentalpha"): (1) Pentalpha's motion for a preliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure; and (2) Pentalpha's motion to dismiss defendant/counterclaimant Damoder Reddy's ("Reddy") Second Amended Counterclaim ("SACC"), pursuant to Rule 12(b)(6). Reddy has filed opposition to both motions. Pentalpha has filed no reply in support of its motion for a preliminary injunction and an untimely reply in support of its motion to dismiss. Having considered the papers filed in support of and in opposition to the motions, the Court deems the motions appropriate for decision on the papers, VACATES the hearing scheduled for November 5, 2004, and rules as follows.
The Court has not considered Pentalpha's untimely reply, for which Pentalpha has neither sought nor obtained leave to file.
Reddy's ex parte application to continue the hearing on the motions is DENIED as moot.
I. Motion for Preliminary Injunction
To obtain a preliminary injunction, the "moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in favor of the moving party." See Stuhlbarg Int'l Sales Co. v. John D. Brush and Co. , 240 F.3d 832, 839-40 (9th Cir. 2001).
Pentalpha alleges, in its claim for conversion as contained in its First Amended Complaint ("FAC"), that Reddy "removed hard and electronic data, documents, and intellectual property from Opsys." (See FAC ¶ 45.) In its motion for a preliminary injunction, Pentalpha states that Reddy is currently working for Nuelight Corporation ("Nuelight") and that "it appears" Reddy is using Pentalpha's "intellectual property" while engaged in such work. (See Pl.'s Mot. for Prelim. Inj. at 1:6-8.) In support of this assertion, Pentalpha relies solely on the declaration of Gary Rhea, a former "Consultant" for Opsys, who attests that he has reviewed statements contained on Nuelight's website and has concluded therefrom that Nuelight "appears to be using intellectual property and technology developed by Opsys and subsequently purchased by Pentalpha." (See Rhea Decl. ¶ 6.)
Pentalpha alleges that it now owns the assets formerly owned by Opsys. (See FAC ¶ 30.)
The Court finds that Pentalpha has failed to establish a likelihood of success on its claim for conversion or even the existence of a serious question. The Rhea declaration fails to identify, in any respect, the "intellectual property" in question, let alone a factual basis for the conclusory opinions set forth therein. Nor has Pentalpha offered any evidence to contest Reddy's showing that Nuelight is engaged in a business unrelated to that of Opsys. (See Reddy Decl. ¶ 10.) Even if the Rhea declaration could be considered to have raised a serious question as to conversion of the unspecified property, Pentalpha has made no showing that the balance of hardships tips sharply in its favor. Indeed, Reddy has shown that the balance of hardships tips in his favor. (See id. ¶ 14 (stating Nuelight is presently seeking "capital funding" and that injunction would harm Nuelight's ability to obtain investors).)
Accordingly, the motion for a preliminary injunction will be denied.
II. Motion to Dismiss
Pentalpha moves to dismiss four of the five causes of action contained in Reddy's SACC. In support of its argument that the Third, Fourth, and Fifth Causes of Action are subject to dismissal, Pentalpha relies on, and requests that the Court take judicial notice of, the contents of the "Docket listing all actions taken by the Bankruptcy Court" in the bankruptcy matter In re Opsys, No. 03-42660. (See Pl.'s Req. for Jud. Notice at 1:6.) Pentalpha, however, has not provided the Court with a copy of the docket. Consequently, the Court cannot take judicial notice of the contents of the docket to determine whether, for example, and as Pentalpha asserts, Reddy did not file an appeal from certain orders filed by the bankruptcy court.
Accordingly, the Court will afford Pentalpha leave to supplement its Request for Judicial Notice by filing a copy of the above-referenced docket, and hereby sets the following supplemental briefing schedule:
1. Pentalpha may supplement its Request for Judicial Notice with a copy of the docket no later than November 5, 2004.
2. If Pentalpha supplements its Request for Judicial Notice, and Reddy objects to the Court's consideration of any copy so filed, Reddy may file such objection no later than November 12, 2004. See Fed.R.Evid. 201(e) (providing "party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed").
3. As of November 12, 2004, the Court will take Pentalpha's motion to dismiss the SACC under submission.
CONCLUSION
For the reasons stated above:
1. Pentalpha's motion for a preliminary injunction is hereby DENIED.
2. Decision on Pentalpha's motion to dismiss the SACC is DEFERRED until November 12, 2004, at which time the Court will determine the matter on the papers submitted.
This order terminates Docket Nos. 60 and 68.
IT IS SO ORDERED.