Opinion
No. CV-06-1772-PHX-SMM.
September 5, 2006
ORDER
Pending before the Court is Plaintiff Mitek Corporation's Motion for Expedited Order to Show Cause Why Preliminary Injunction Should Not be Issued. (Dkt. 21.)
On July 17, 2006, Mitek filed this action against defendants Seven Elephants Distributing Corp. ("SEDC"), Ashkan Tabibnia, and Sharam Tabibnia (together, the "Tabibnias," and collectively with SEDC, "Defendants"). On August 2, 2006, Mitek filed a Motion for a Preliminary Injunction and an Order to Show Cause why Preliminary Injunction Should Not Issue against Defendants. (Dkt. 9.)
On August 14, 2006, the Tabibnias filed a Motion to Dismiss for Lack of Personal Jurisdiction (Dkt. 11), and SEDC filed a Motion to Dismiss the Complaint or, in the alternative, to Transfer or Stay Action. (Dkt. 12.) According to SEDC, a complaint for declaratory relief involving the same primary parties and the same issues raised by the instant action was filed by SEDC in the Central District of California on June 17, 2006. (Dkt. 12 at 1-2.) As a result, SEDC requested this Court to dismiss Mitek's complaint under the first-to-file doctrine, to transfer this case to the Central District of California, or, in the alternative, to stay this action pending the decision of the California Court. (Dkt. 12.)
Mitek's responses to both Motions to Dismiss were originally due on August 28, 2006. On August 28, 2006, the Court approved a stipulation of the parties permitting Mitek to file its responses on September 13, 2006. (Dkt. 19.) Three days later, Mitek filed its reply to Defendants' response to Mitek's Motion for a Preliminary Injunction and an Order to Show Cause why a Preliminary Injunction Should Not Issue as well as the instant Motion for an Expedited Order to Show Cause. (Dkts. 20-21.) According to Mitek, it needs "immediate relief," the Application is fully briefed, and "all parties are ready for a hearing." (Dkt. 21.)
Although the Application is fully briefed, the Court takes issue with Mitek's assertion that "all parties are ready for a hearing." For several reasons, the Court will not issue an expedited Order to Show Cause. First, the Tabibnias have asserted that this Court lacks personal jurisdiction against them. Because this issue has not yet been resolved, and, indeed, the resolution of this issue has been postponed, the Court will not issue an expedited Order to Show Cause. See Paccar Int'l, Inc. v. Commercial Bank of Kuwait, S.A.K., 757 F.2d 1058, 1060 (9th Cir. 1985) (vacating preliminary injunction issued against defendant because district court lacked personal jurisdiction over defendant). Similarly, SEDC has asserted that, for reasons of comity and judicial efficiency, this action should be dismissed because the same issues are pending in the Central District of California lawsuit. Because the resolution of this issue has also been postponed, the Court will not issue an expedited Order to Show Cause. Finally, in less than three court days, Judge Real will hold a hearing on Mitek's Motion to Dismiss the California lawsuit filed by SEDC. See Seven Elephants Dist'g Corp. v. Mitek Corp., CV-06-3911-R-VBK, dkt. 16. For this additional reason, the Court will not issue an expedited Order to Show Cause.
In the Court's opinion, both Motions to Dismiss, as well as the Motion to Dismiss pending in the Central District of California, should be resolved before any decision is made on Mitek's request for an Order to Show Cause Why a Preliminary Injunction Should Not Issue.
Accordingly,
IT IS HEREBY ORDERED DENYING Plaintiff Mitek Corporation's Motion for Expedited Order to Show Cause Why Preliminary Injunction Should Not be Issued. (Dkt. 21.)