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Grady v. Iacullo

United States District Court, D. Colorado

February 4, 2015

JAMES S. GRADY, Plaintiff,
v.
SAMUEL IACULLO, a/k/a

ORDER

RAYMOND P. MOORE, District Judge.

This matter is before the Court on Magistrate Judge Kathleen M. Tafoya's Recommendation ("Recommendation") (ECF No. 35) that the Court deny Defendant Samuel Iacullo's motion to dismiss ("Motion to Dismiss") (ECF No. 27).

For the reasons stated below, the Court: (1) REJECTS the Recommendation; but (2) DENIES Defendant's Motion to Dismiss.

I. BACKGROUND

On March 8, 2013, Plaintiff James Grady filed this lawsuit against Defendant for alleged copyright and trademark violations. (ECF No. 1 ¶¶ 45-78.) Plaintiff alleges that the Court has subject matter jurisdiction as the matter arises under a United States law as well as relates to copyrights and trademarks. (ECF No. 1 ¶ 8.) Plaintiff alleges that the Court has personal jurisdiction over Defendant as Defendant's conduct was committed, in part, within the District of Colorado as well as was targeted at Plaintiff who is a resident of Colorado. (ECF No. 1 ¶¶ 9-10.)

This matter has been reassigned to three different presiding judges. (ECF Nos. 2, 6, 11.)

On March 15, 2013, Judge Philip A. Brimmer referred, in pertinent part, the matter to Magistrate Judge Tafoya for the purpose of entering a scheduling order. (ECF NO. 7.)

On April 11, 2013, a summons returned executed was filed with the Court. (ECF No. 9.) Defendant's answer was due on April 22, 2013. (ECF No. 9.) On April 30, 2013, Plaintiff notified the Court that Defendant had filed a voluntary petition for relief in the United States Bankruptcy Court for the Western District of Texas under Chapter 7 of Title 11 of the United States Code. (ECF No. 10.) That matter is pending as Case No. 13-51001-cag ("Bankruptcy Case"). (ECF No. 10.)

On May 2, 2013, the Court stayed all proceedings in this matter pending resolution of the Bankruptcy Case. (ECF No. 12.) On May 8, 2013, the Court administratively closed the matter subject to reopening for good cause. (ECF No. 13.)

On October 18, 2013, the Court granted a motion to reopen the matter. (ECF No. 18.) The Court ordered Plaintiff to serve a copy of the order reopening the matter on Defendant and file a certificate of service with the Court. (ECF No. 18.) Plaintiff subsequently requested an extension of time to serve Defendant with a copy of the order reopening the case and setting the deadline for Defendant to answer or otherwise respond to the Complaint. (ECF No. 19.) The Court granted Plaintiff's motion for an extension of time and ordered Defendant to answer or otherwise respond to the Complaint on or before December 6, 2013. (ECF No. 21.)

On December 6, 2013, Defendant filed, what the Court docketed as, an answer to the Complaint that contained elements of being a motion to dismiss the Complaint. (ECF Nos. 23, 34.)

For an unknown reason, the matter was dormant for a period of time between December 27, 2013 and June 9, 2014. ( See Dkt.) On June 9, 2014, the Court set the matter for a scheduling conference. (ECF No. 26.)

On July 3, 2014, Defendant filed the Motion to Dismiss the matter due to the Court's failure to hold a scheduling conference pursuant to Rule 16(b)(2) of the Federal Rules of Civil Procedure. (ECF No. 27.)

On July 10, 2014, Magistrate Judge Tafoya held a scheduling conference during which Plaintiff and Defendant appeared. (ECF No. 34.) At the scheduling conference, Magistrate Judge Tafoya informed the parties that she would recommend that the Court deny Defendant's Motion to Dismiss and provided the parties with an opportunity to respond orally at the scheduling conference to that ...


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