La Michoacana Plus Ice Cream Parlor Corp, a California Corporation v. Windy City Paletas, a California Corporation et al, No. 2:2023cv00279 - Document 21 (D. Nev. 2023)
Court Description: ORDER Granting 20 Stipulated Discovery Plan. Discovery due by 3/29/2024. Motions due by 5/28/2024. Proposed Joint Pretrial Order due by 6/27/2024. Signed by Magistrate Judge Daniel J. Albregts on 5/31/2023. (Copies have been distributed pursuant to the NEF - AMMi)
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La Michoacana Plus Ice Cream Parlor Corp, a California Corporation v. ...alifornia Corporation et al Doc. 21 Case 2:23-cv-00279-CDS-DJA Document 21 Filed 05/31/23 Page 1 of 7 1 2 3 4 5 6 ENSO LAW, L.L.P. DAVID R. WELCH Nevada State Bar Number 13417 ALEXANDER R. VAIL Nevada State Bar Number14291 2970 WEST SAHARA AVE LAS VEGAS, NV 89102 TELEPHONE: (213) 513-0028 EMAIL: litigation@enso.law Attorneys for Plaintiff La Michoacana Plus Ice Cream Parlor Corp. 7 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 8 9 10 LA MICHOACANA PLUS ICE CREAM PARLOR CORP, a California Corporation, 11 PLAINTIFF 12 13 Case Number: 2:23-cv-00279-CDS-DJA STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER SPECIAL SCHEDULING REVIEW REQUESTED v. 14 15 16 17 18 19 20 21 22 23 WINDY CITY PALETAS, INC., a California corporation, ECUAMEX PALETAS, INC., a California corporation, SKY LIMIT ENTERPRISE II, INC., a Nevada corporation, KJAM PALETAS INC., a California corporation, ARTURO MIRANDA, an individual, KAYLA RINCON, an individual, DIGMEY JARAMILLO, an individual; and DOES 1 through 50, Inclusive, 24 25 DEFENDANTS 26 27 28 STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER Dockets.Justia.com Case 2:23-cv-00279-CDS-DJA Document 21 Filed 05/31/23 Page 2 of 7 1 Plaintiff La Michoacana Plus Ice Cream Parlor Corp (“LMP” or “Plaintiff”), 2 and Defendants Windy City Paletas, Inc. (“WINDY CITY”), Ecuamex Paletas, Inc. 3 (“ECUAMEX”), Sky Limit Enterprise II, Inc. (“SKY LIMIT”), KJAM Paletas Inc. 4 (“KJAM”), Arturo Miranda (“MIRANDA”), Kayla Rincon (“RINCON”), and 5 Digmey Jaramillo (“JARAMILLO”), (the “Defendants” and collectively the 6 “Parties”) by and through their respective counsels, hereby submit their joint 7 report of the parties’ Rule 26(f) conference, and state their respective proposals 8 concerning the schedule for discovery in this case: 9 1. Procedural History. On February 22, 2023, Plaintiff filed this action, 10 alleging that Defendants engaged in trademark infringement based on Defendants’ 11 use of Plaintiff’s trademarks at eight ice cream stores located in San Diego and Las 12 Vegas. On March 17, 2023, Plaintiff filed a first amended complaint (“FAC”). On 13 March 30, 2023, Defendants filed a motion to transfer venue or alternatively to 14 dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) (“Motion to 15 Dismiss”); as part of the Motion to Dismiss, Defendants Windy City Paletas, Inc., 16 Ecuamex Paletas, Inc., KJAM Paletas, Inc., Kayla Rincon, and Digmey Jaramillo 17 (collectively, the “Foreign Defendants”) moved to dismiss the First Amended 18 Complaint (“FAC”), for lack of personal jurisdiction. 19 2. Rule 26(f) Conference. On May 16, 2023, Plaintiff’s counsel convened 20 a telephonic Rule 26(f) conference. The participants were David R. Welch and 21 George Krboyan on behalf of Plaintiff and David M. Greeley and Jonathan W. 22 Fountain on behalf of Defendants. 23 24 3. Rule 26(f) Report. During the Rule 26(f) conference, the parties’ counsel discussed the following issues: 25 a. Fed. R. Civ. P. 26(f)(3)(A) - What changes should be made in the 26 timing, form, or requirement for disclosures under Rule 26(a), 27 including a statement of when initial disclosures were made or will 28 -2STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER Case 2:23-cv-00279-CDS-DJA Document 21 Filed 05/31/23 Page 3 of 7 1 be made? The parties agree that no changes should be made in the 2 timing, form, or requirement for disclosures under Rule 26(a). Rule 3 26(a)(1)(A) disclosures shall be served on or before June 15, 2023. 4 b. Fed. R. Civ. P. 26(f)(3)(B) - The subjects on which discovery may be 5 needed, when discovery should be completed, and whether discovery 6 should be conducted in phases or be limited to or focused on 7 particular issues? The parties agree that discovery should commence 8 on May 16, 2023, the date of the parties’ Rule 26(f) conference, on 9 all issues relevant and proportional to the parties’ respective claims 10 and defenses, except as addressed below. The Foreign Defendants 11 have challenged personal jurisdiction. And the Defendants may file 12 a compulsory counterclaim, alleging that LMP’s business model, 13 which consists of permitting licensees to use LMP’s trademarks and 14 providing material support for its licensees’ operation of eight ice 15 cream Stores in exchange for the payment of licensing fees and 16 royalties, meets the definition of a “franchise” under the California 17 Franchise Investment Law (“CFIL”), entitling the store operators, 18 under the facts alleged, to rescission of the licensing agreements for 19 all eight Stores in light of LMP’s failure to register its franchise 20 offering with the California Department of Financial Protection and 21 Innovation (the “DFPI”). 22 Ruben Jimenez as a party when filing the counterclaim. The parties 23 do not believe discovery should be conducted in phases or limited to 24 or focused on any particular issues at this time, except that, because 25 of the pending Motion to Dismiss wherein the Foreign Defendants 26 are challenging personal jurisdiction, the parties propose that written 27 discovery be limited to Plaintiff and the non-Foreign Defendants 28 Defendants may add Plaintiff’s CEO -3STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER Case 2:23-cv-00279-CDS-DJA Document 21 Filed 05/31/23 Page 4 of 7 1 (Sky Limit and Arthuro Miranda), and that depositions not occur 2 until 45 days after the Court’s ruling on the Motion to Dismiss. 3 Written discovery to or from the Foreign Defendants shall be 4 permitted upon the Court’s ruling on the Motion to Dismiss. 5 c. Fed. R. Civ. P. 26(f)(3)(C) - Any issues about disclosure or discovery 6 of electronically stored information, including the form or forms in 7 which it should be produced? None at this time. 8 d. Fed. R. Civ. P. 26(f)(3)(D) - Any issues about claims of privilege or 9 of protection as trial-preparation materials, including--if the parties 10 agree on a procedure to assert these claims after production--whether 11 to ask the court to include their agreement in an order? The parties 12 agree that discovery will require the disclosure of valuable, 13 proprietary, financial, personal, and/or competitive business 14 information. Accordingly, the parties agree to prepare and submit a 15 proposed order governing the discovery, disclosure, and use of 16 confidential information in this case. 17 e. Fed. R. Civ. P. 26(f)(3)(F) - Any other orders that should be issued 18 under Rule 26(c) or under Rule 16(b) and (c)? None at this time. 19 20 4. Proposed Schedule of the Completion of Discovery. The parties agree to the following case management deadlines: 21 a. Discovery Cutoff. The discovery cutoff date shall be March 29, 22 2024, which is 365 days from the date Defendants appeared, March 23 30, 2023. Should this period be insufficient, the parties are amenable 24 to extending the discovery period for a reasonable length of time; 25 b. Amending the Pleadings and Adding Parties. The last day to amend 26 pleadings and add parties shall be December 30, 2023, which is 90 27 days before the discovery cut-off date; 28 -4STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER Case 2:23-cv-00279-CDS-DJA Document 21 Filed 05/31/23 Page 5 of 7 1 c. Expert Disclosures. The last day to make initial expert disclosures 2 shall be January 29, 2024, which is 60 days before the discovery 3 cut-off date. Rebuttal expert disclosures shall be served by February 4 28, 2024, which is 30 days after the deadline for serving initial expert 5 disclosures; 6 d. Dispositive Motions. The last day for filing dispositive motions, 7 including but not limited to motions for summary judgment, shall be 8 May 28, 2024, which is 60 days after the discovery cut-off date; 9 e. Joint Pretrial Order. The last day for filing the Joint Pretrial Order 10 shall be June 27, 2024, which is 30 days after the deadline for filing 11 dispositive motions. In the event dispositive motions are filed, the 12 date for filing the joint pretrial order shall be suspended until thirty 13 (30) days after decision of the dispositive motions or further order of 14 the Court; 15 f. Fed. R. Civ. P. 26(a)(3) Disclosures. Unless the Court orders 16 otherwise, the disclosures required by Fed. R. Civ. P. 26(a)(3) and 17 any objections thereto shall be included in the joint pretrial order; 18 g. Alternative Dispute Resolution. The parties certify that they have met 19 and conferred about the possibility of using alternative dispute- 20 resolution processes, including mediation, arbitration, and if 21 applicable, early neutral evaluation. The parties may, in the near 22 future, submit a stipulation or joint motion requesting that the Court 23 conduct a magistrate facilitated mediation/settlement conference; 24 h. Alternative Forms of Case Disposition. The parties certify that they 25 have considered consent to trial by a magistrate judge under 28 26 U.S.C. § 636(c) and Fed. R. Civ. P. 73 and the use of the Short Trial 27 Program, but respectfully decline this option at this time; and, 28 -5STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER Case 2:23-cv-00279-CDS-DJA Document 21 Filed 05/31/23 Page 6 of 7 1 i. Electronic Evidence. The parties certify that they have discussed 2 whether they intend to present evidence in electronic format to jurors 3 for the purposes of jury deliberations. The parties agree to consult the 4 court’s website and to contact the assigned judge’s courtroom 5 administrator for instructions about how to prepare evidence in an 6 electronic format and to obtain other requirements for the court’s 7 electronic jury evidence display system. 8 5. Discovery Motions. 9 6. Calculation of Time. Fed. R. Civ. P. 6 shall govern the calculation of 10 time under this Order. For example, if a deadline falls on a day that is a Saturday, a 11 Sunday, or a legal holiday, pursuant to Fed. R. Civ. P. 6(a)(1)(C), the deadline shall 12 run to the next day that is not a Saturday, a Sunday, or a legal holiday. 13 14 Dated this 30th day of May 2023. 15 IT IS SO STIPULATED: 16 17 18 19 20 21 22 23 24 25 /s/David R. Welch David R. Welch Nevada Bar No. 13417 Alexander R. Vail Nevada Bar No.14291 ENSO LAW L.L.P. Attorneys for Plaintiff La Michoacana Plus Ice Cream Parlor Corp. /s/ David M. Greeley David M. Greeley, Esq. California Bar No. 198520 Admitted Pro Hac Vice GREELEY THOMPSON LLP /s/ Jonathan W. Fountain Jonathan W. Fountain, Esq. Nevada Bar No. 10351 HOWARD & HOWARD ATTORNEYS PLLC Attorneys for Defendants 26 27 28 -6STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER Case 2:23-cv-00279-CDS-DJA Document 21 Filed 05/31/23 Page 7 of 7 1 IT IS SO that the parties' stipulated discovery plan and scheduling order (ECF No. IT ORDERED IS SO ORDERED. 20) is GRANTED. 2 3 May 31 Dated: _____________________, 2023. 4 5 6 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER
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