Cheetah Mobile, Inc. et al v. Apus Group

Northern District of California, cand-4:2015-cv-02363

ORDER by Judge Haywood S. Gilliam, Jr. DENYING {{17}} MOTION FOR ADMINISTRATIVE RELIEF FOR BIFURCATED BRIEFING OF RULE 12(B) MOTION

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 CHEETAH MOBILE, INC., et al., 7 Case No. 15-cv-02363-HSG Plaintiffs, 8 ORDER DENYING MOTION FOR v. ADMINISTRATIVE RELIEF FOR 9 BIFURCATED BRIEFING OF RULE APUS GROUP, 12(B) MOTION 10 Defendant. Re: Dkt. No. 17 11 12 Pending before the Court is Defendant APUS Group's motion for administrative relief for Northern District of California United States District Court 13 bifurcated briefing of Rule 12(b) motion. Dkt. No. 17. Defendant seeks to initially brief only its 14 challenges to sufficiency of process and service of process under Federal Rule of Civil Procedure 15 12(b)(4) and 12(b)(5), and to brief its remaining Rule 12(b) challenges based on lack of personal 16 jurisdiction, lack of subject-matter jurisdiction, improper venue, choice of law, and failure to state 17 a claim in a later motion if the initial motion is denied. Plaintiffs Cheetah Mobile, Inc., Cheetah 18 Mobile America, Inc. and Cheetah Technology Corp. oppose the motion. See Dkt. No. 19. 19 Rule 12(g)(2) provides that "a party that makes a motion under this rule must not make 20 another motion under this rule raising a defense or objection that was available to the party but 21 omitted from its earlier motion." If a party fails to assert the defenses of lack of personal 22 jurisdiction, improper venue, insufficient process, or insufficient service of process in its initial 23 Rule 12(b) motion or in a responsive pleading, the party waives those defenses. Fed. R. Civ. P. 24 12(h)(1). The defenses of failure to state a claim upon which relief can be granted, failure to join a 25 party under Rule 19, and lack of subject-matter jurisdiction are not subject to Rule 12(g)(2)'s 26 limitation. See Fed. R. Civ. P. 12(g)(2); 12(h)(2)-(3); see also FTC v. Innovative Mktg., Inc., 654 27 F. Supp. 2d 378, 383-83 (D. Md. 2009) (listing cases in which successive motions to dismiss for 28 failure to state a claim have been allowed). 1 Based on a plain reading of Rule 12, the Court finds that it does not have the authority to 2 grant Defendant's motion. Rule 12(h)(1) explicitly disallows the bifurcation of motions based on 3 the Rule 12(b)(2)-(5) defenses. In other words, if Defendant does not raise its anticipated defenses 4 of lack of personal jurisdiction and improper venue in its initial Rule 12(b) motion, the Rule 5 requires that those defenses be waived. Defendant offers no authority to the contrary. 6 Accordingly, the Court DENIES the motion. 7 IT IS SO ORDERED. 8 Dated: June 15, 2015 9 ______________________________________ HAYWOOD S. GILLIAM, JR. 10 United States District Judge 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2