Crocs, Inc. v. Effervescent, Inc et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Phillip S. Figa
Civil Action No. 06-cv-00605-PSF-BNB
CROCS, INC.,
Plaintiff,
v.
ACME EX-IM, INC.;
AUSTRALIA UNLIMITED, INC.;
CHENG’S ENTERPRISES, INC.;
COLLECTIVE LICENSING INTERNATIONAL, LLC;
D. MYERS & SONS, INC.;
DOUBLE DIAMOND DISTRIBUTION, LTD.;
EFFERVESCENT, INC.;
GEN-X SPORTS, INC.;
HOLEY SOLES HOLDINGS, LTD.;
INTER-PACIFIC TRADING CORPORATION;
SHAKA HOLDINGS, INC.; and
DOES 1-10,
Defendants.
ORDER ON MOTION TO STRIKE ANSWER
This matter comes before the Court on Plaintiff’s Motion to Strike the Answer,
Affirmative Defenses and Counterclaims of Defendant Australia Unlimited, Inc. (Dkt.
# 54), filed by plaintiff on August 22, 2006. Defendant Australia Unlimited, Inc., filed
its opposition on August 28, 2006 (Dkt. # 55). The motion is GRANTED in part, and
DENIED in part, for the following reasons:
On May 16, 2006, this Court entered an order staying this case based in part
on the stipulation of some of the parties, and pursuant to 28 U.S.C. § 1659(a), which
Case No. 1:06-cv-00605-PAB-MDB Document 56 filed 09/01/06 USDC Colorado
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mandates stay of cases at the request of a party when the parties are also parties to
a proceeding before the International Trade Commission (“ITC”) (Dkt. # 31). Although
Defendant Australia Unlimited, Inc. was not a party to the stipulated motion for stay, the
Court notes that it is a party to the proceeding before the ITC (see Motion for Stay,
Dkt. # 26, Exhibit A, thereto). The case was also ordered administratively closed,
subject to possible reopening by the Court (Dkt. # 31).
Since the entry of the stay Order, this Court has on several occasions authorized
limited reopening of the case at the request of plaintiff to permit the filing of consent
judgments between plaintiff and certain defendants. The Court also notes that at least
one defendant other than Australia Unlimited, Inc. filed an answer after the stay was
entered (see Dkt. # 33). Thus, while plaintiff may be correct that no further pleadings
are to be filed, the Court sees no reason at this time to strike the answer and
counterclaims filed by Defendant Australia Unlimited, Inc. However, given the fact that
this case is stayed pending resolution of the proceedings before the ITC, Plaintiff
Crocs, Inc. need not file a response to the counterclaims.
DATED: September 1, 2006
BY THE COURT:
s/ Phillip S. Figa
_______________________________
Phillip S. Figa
United States District Judge
Case No. 1:06-cv-00605-PAB-MDB Document 56 filed 09/01/06 USDC Colorado
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