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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 09-cv-02578-MSK-MJW

e.DIGITAL CORPORATION,

Plaintiff,

v.

PENTAX OF AMERICA, INC., et al.,

Defendants.

ORDER TO SHOW CAUSE AND

ORDER SETTING STATUS CONFERENCE

MICHAEL J. WATANABE

United States Magistrate Judge

This case is before this court pursuant to an Order of Reference to Magistrate

Judge issued by District Judge Marcia S. Krieger on November 4, 2009 (Docket No. 4). This action was commenced on November 2, 2009 (Docket No. 1).

Nevertheless, plaintiff has not served several defendants, namely, Canon Inc., DXG Technology, Inc., HTC Corporation, Kyocera Corporation, Leica Camera AG, D & M Holdings, Inc., and Panasonic Corporation.

Rule 4(m) of the Federal Rules of Civil Procedure provides in relevant part: If a defendant is not served within 120 days after the complaint is filed, the court–on motion or on its own after notice to the plaintiff–must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1). Fed. R. Civ. P. 4(m).

Furthermore, Rule 41(b) provides in pertinent part: If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule–except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19–operates as an adjudication on the merits.

Fed. R. Civ. P. 41(b). In addition, Rule 16(f) provides in pertinent part that “[o]n motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: . . . (C) fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f). Rule 37(b)(2)(A) (ii)-(vii), which is referenced in Rule 16(f), permits the following sanctions:

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party; or

(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Fed. R. Civ. P. 37(b)(2)(A) (ii)-(vii) (emphasis added).

Based upon the foregoing, it is hereby ORDERED that on April 1, 2010, at 9:00 a.m. in Courtroom A-502, Fifth Floor, Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado, a Show Cause Hearing will be held at which the plaintiff shall show cause why this case should not be dismissed pursuant to Fed. R. Civ. P. 4(m), 16(f), and/or 41(b) as against defendants Canon Inc., DXG Technology, Inc., HTC Corporation, Kyocera Corporation, Leica Camera AG, D & M Holdings, Inc., and Panasonic Corporation for failure to prosecute and failure to serve.

It is further ORDERED that the plaintiff shall forthwith serve defendants Canon Inc., DXG Technology, Inc., HTC Corporation, Kyocera Corporation, Leica Camera AG, D & M Holdings, Inc., and Panasonic Corporation and file proof of service with the court.

It is further ORDERED that a Status Conference is also set for April 1, 2010, at 9:00 a.m. in Courtroom A-502, Fifth Floor, Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado.

Dated: January 20, 2010 s/ Michael J. Watanabe

Denver, Colorado Michael J. Watanabe

United States Magistrate Judge