Opinion
23-cv-2276-GPC-DTF
07-15-2024
VANILLA CHIP, LLC dba TruHeight, Plaintiff, v. NOGENETICS.COM; ON DEMAND FULLFILLMENT, LLC; VOX NUTRITION, INC., DOES 1-10, Defendants.
ORDER GRANTING MOTION FOR RECONSIDERATION REGARDING MOTION FOR EXPEDITED DISCOVERY [ECF NO. 13]
Hon. D. Thomas Ferraro, United States Magistrate Judge.
Before the Court is Plaintiff Vanilla Chip, LLC's (“Plaintiff”) Motion for Reconsideration of the Court's denial of their ex parte application for expedited discovery. (ECF No. 13.) Defendants On Demand Fulfillment, LLC (“On Demand”) and VOX Nutrition, Inc. (“VOX”) have been served with Plaintiff's First Amended Complaint (“FAC”) but have not yet appeared in the action. (ECF Nos. 6-7.) Defendant NoGenetics.com has not yet been served in this action. For the reasons discussed below, the Court GRANTS Plaintiff's Motion for Reconsideration.
I. BACKGROUND
On December 13, 2023, Plaintiff filed its Complaint against Defendants NoGenetics.com, and VOX Nutrition, LLC for copyright and trademark infringement. (ECF No. 1.) On March 18, 2024, Plaintiff filed a First Amended Complaint (“FAC”) naming Defendants NoGenetics.com, VOX Nutrition, Inc., On Demand Fulfillment, LLC, and Does 1-10. (ECF No. 4.) Defendants VOX and On Demand were served with the FAC on March 26, 2024. (ECF Nos. 6-7.) On May 20, 2024, Plaintiff filed an ex parte motion seeking expedited discovery to ascertain identifying information for NoGenetics.com, along with “information on the VOX/OnDemand/NoGenetics.com agency relationship.” (ECF No. 9-1 at 4.)
In their FAC, Plaintiff asserts that Defendants are liable for trademark and copywrite infringement. (See generally FAC.) Plaintiff alleges that NoGenetics.com is selling counterfeit TruHeight products on its website. (See id. at 3.) VOX is alleged to be the manufacturer of the alleged counterfeit product which they delivered to On Demand. (See id.) Once received by On Demand, they affixed the labels provided by their client NoGenectics.com and shipped the products to the customers on behalf of their client. (See id.)
Plaintiff claimed in their previous Motion, see ECF No. 9 at 3, that On Demand and VOX most likely have knowledge of the identifying information for NoGenetics.com including “the full names of its owners and employees, as well as its business addresses, payment information, trade channels, website traffic, geolocation data, phone number(s), email addresses, IP addresses, billing addresses, and its physical addresses.” (Id.) Plaintiff's Counsel represented that Counsel for On Demand and VOX had not agreed to provide this information pursuant to Plaintiff's informal request but “conced[ed] that On Demand applied labeling and shipped product for NoGenetics.com.” (See Eastman Decl., ECF No. 9-2, at ¶¶ 11-13.)
In their previous Motion, Plaintiff claimed that good cause existed to grant the ex parte motion because: (1) the scope of discovery sought is narrow; (2) there is an insignificant burden on the Defendants, and (3) without knowing the identity of NoGenetics.com, Plaintiff would be “unfairly prejudiced in the meet and confer conference to propose a potential discovery plan.” (ECF No. 9-1 at 6-7.)
The Court denied Plaintiff's request on the ground that the “good cause” factors for permitting expedited discovery did not weigh in favor of the Plaintiff's request. (See May 28, 2024 Order, ECF No. 11, at 3.)
Plaintiff has now filed a motion to reconsider the Court's May 28, 2024 Order. (ECF No. 13-1.) However, rather than reconsidering the Court's ruling based on the representation made in Plaintiff's original motion, the current motion is a renewed motion seeking expedited discovery as Plaintiff now makes arguments in favor of expedited discovery that either address the Court's initial concerns regarding the scope of the discovery requested or asserts new positions not previously set forth in the prior motion.
II MOTION FOR RECONSIDERATION
Rule 60(b) permits relief from a judgment for: (1) mistake, inadvertence, surprise, excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied, released, or discharged judgment, a judgment which is “based on an earlier judgment which has been reversed or vacated,” or a judgment which is no longer equitable; or (6) “any other reason that justifies relief.” Fed.R.Civ.P. 60(b).
A. Identity of Defendant NoGenetics.com and Agency Relationship
In Plaintiff's original motion, they argued for expedited discovery in order to identify NoGenetics.com and “the VOX/On Demand/NoGenetics.com agency relationship.” (ECF No. 9-1 at 7-8.) To that end, the Court noted in the Order that in order to determine whether good cause exists to grant Plaintiff's relief, one element it must consider is the “breadth of the discovery requests” and the “burden on the defendant” to comply with the requested discovery. (ECF No. 11 at 3.)
In the current Motion, Plaintiff indicates that the Complaint was filed on December 13, 2023 and they were required to serve a summons and complaint “upon a defendant within 120 days after filing the complaint.” (Pl.'s Mot. at 5 citing Fed.R.Civ.P. 4(m) and S.D. Local Rule 4.1(a).) However, Plaintiff is mistaken. Both Rule 4 and Local Rule 4.1(a) require a defendant to be served “within 90 days after the complaint is filed.” See Fed.R.Civ.P. 4(m) (emphasis added.)
First, the Court found that it could not find good cause to grant relief because Plaintiff failed to set forth in motion itself, the scope of the discovery it was seeking. (Id. at 4.) Thus, the Court could not make a finding that the discovery would not be overly burdensome to the other Defendants. Plaintiff does not seek reconsideration of this finding, instead Plaintiff indicates that they have “further refined its discovery request to only written discovery to Defendants Vox and On Demand.” (ECF No. 13-1 at 4.)
As the Court noted in the May 28, 2024 Order, Plaintiff chose to identity with specificity the scope of discovery it was seeking in a proposed order that was emailed to the Court. The proposed order included a much larger scope of discovery including subpoenas to third parties, multiple depositions, and multiple written discovery and production of document requests. It is not clear why Plaintiff did not include the scope of the discovery they were seeking in the motion itself.
Second, as stated above, in their original Motion, Plaintiff did not just seek expedited discovery as to the identity of NoGenetics.com but also sought discovery “on the Vox/On Demand/NoGenetics.com agency relationship.” (ECF No. 9-1 at 4.) In fact, Plaintiff stated that “[u]pon information and belief, NoGenetics.com may not have an identify of its own that is separate from Vox and/or On Demand.” (Id. at 7.) Despite those arguments made in the original Motion, Plaintiff is no longer seeking expedited discovery as to the potential agency relationship between the various parties and instead seeks much more limited discovery that appears to solely relate to identifying information regarding NoGenetics.com. (ECF No. 13-1 at 4.)
III. STANDARD OF REVIEW
Absent a court order, discovery is generally not allowed prior to the parties' Federal Rule of Civil Procedure 26(f) conference. See Fed.R.Civ.P. 26(d)(1). Early discovery to identify a defendant may be warranted given “a plaintiff cannot have a discovery planning conference with an anonymous defendant.” UMG Recordings, Inc. v. Doe, No. C-08-03999-RMW, 2008 WL 4104207, at *2 (N.D. Cal. Sept. 2008). To determine if early discovery is warranted in a particular case, the court applies a “good cause” test by weighing the need for discovery to further justice against the prejudice it may cause the opposing party. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002).
In order to determine whether good cause exists, Courts “examine the reasonableness of the [expedited discovery] request by considering a non-exhaustive set of factors: (1) whether a preliminary injunction is pending, (2) the breadth of the discovery requests, (3) the purpose for requesting the expedited discovery, (4) the burden on the defendant of compliance with the requested discovery, and (5) how far in advance of the typical discovery process the request was made.” TGG Mgmt. Co. Inc. v. Petraglia, No. 19-cv-2007-BAS-KSC, 2019 WL 6310556, at *2 (S.D. Cal. Nov. 25, 2019) (citing Am. LegalNet, Inc. v. Davis, 673 F.Supp.2d 1063, 1067 (C.D. Cal. 2009)).
IV. DISCUSSION
Here, the Court finds that the “good cause” factors do weigh in favor of the request to expedite discovery. In their original Motion, Plaintiff's counsel declared that they were unable to locate the identity of NoGenetics.com because “virtually no public data is available on its website.” (ECF No. 9-2, Eastman Decl. at ¶ 15.) However, Plaintiff failed to demonstrate that they exhausted all publicly available means to identify NoGenetics.com. However, in their current Motion, Plaintiff's counsel has declared that he “utilized multiple databases in an effort to gather meaningful identifying information regarding Defendant NoGenetics.com, to no avail,” as well as contacting the California Secretary of State for information. (Id. at ¶¶ 4-5.) Thus, it appears that they have now exhausted all publicly available means to discover the identity of NoGenetics.com.
In addition, Plaintiff significantly reduced the scope of the discovery they are seeking to a limited number of requests for production and interrogatories. (Id., Ex. 1.) Semitool, Inc. v. Tokyo Electron America., Inc, 208 F.R.D. 273, 277 (N.D. Cal. 2002) (granting expedited discovery where narrowly tailored requests will “substantially contribute to moving this case forward”).
Finally, the Court finds minimal prejudice to Defendants Vox and On Demand if Plaintiff is granted leave to conduct this expedited discovery. Plaintiff's request, as set forth in the current Motion, is narrowly tailored to obtain the identity of NoGenetics.com and they have significantly reduced the scope of the amount of discovery initially sought. Moreover, Plaintiff's Counsel declares that Counsel for Vox and On Demand is “willing to cooperate with court-ordered discovery, but cannot provide the necessary information without the obligations of formal discovery.” (Eastman Decl. at ¶ 8.)
V. CONCLUSION
The Court finds, after weighing all the factors, that Plaintiff has demonstrated good cause for expedited discovery. Semitool, 208 F.R.C. at 276. Accordingly, Plaintiff's Motion for Reconsideration is GRANTED. Plaintiff is granted leave to serve the discovery set forth in Exhibit 1, see ECF No. 13-2 at 4, on Defendants Vox Nutrition, Inc. and On Demand Fulfillment, LLC prior to the Rule 26(f) conference.
IT IS SO ORDERED.