Talavera Hair Products, Inc. v. Taizhou Yunsung Electrical Appliance Co., LTD. et al, No. 3:2018cv00823 - Document 34 (S.D. Cal. 2018)
Court Description: ORDER Granting in Part Plaintiff's 29 Ex Parte Motion. Signed by Judge Janis L. Sammartino on 6/12/2018. (mpl)
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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 TALAVERA HAIR PRODUCTS, INC., Case No.: 18-CV-823-JLS (JLB) Plaintiff, 14 15 v. ORDER GRANTING IN PART PLAINTIFF’S EX PARTE MOTION 16 TAIZHOU YUNSUNG ELECTRICAL APPLIANCE CO., LTD, et al, (ECF No. 29) 17 Defendants. 18 19 20 Presently before the Court is Plaintiff’s Ex Parte Application Regarding Unknown 21 and Unserved Defendants Nos. 50–74, (“Ex Parte App.,” ECF No. 29). Plaintiff requests 22 multiple orders from the Court: Orders (1) Permitting Plaintiff to serve third party 23 discovery on Amazon regarding the identify of Defendants Nos. 50–74; (2) Permitting 24 Plaintiff to file a notice to supplement the listings for Defendants Nos. 50–74 to add the 25 Seller ID Name; (3) Clarifying that Plaintiff may serve Defendants Nos. 50–74 pursuant to 26 the alternative service order; (4) Extending the TRO and Preliminary Injunction Dates. 27 /// 28 /// 1 18-CV-823-JLS (JLB) 1 I. Discovery 2 Plaintiff seeks leave to serve a subpoena on Amazon to obtain Seller ID and email 3 information for Defendants Nos. 50–74. (Ex Parte App. 4.) Plaintiff seeks to serve twenty- 4 five subpoena requests, as follows: 5 Request No. 1: For defendant 50 (listed on Exhibit 1 to the Complaint [Dkt. 1-3] and on Exhibit 1 to the TRO [Dkt. 10-1]), documents sufficient to show the following information with respect to ASIN B0071HVQ9ZG associated with that defendant: a. MERCHANT_LEGAL_NAME (for each seller of that ASIN); b. MERCHANT_FRIENDLY_NAME (for each seller of that ASIN); c. MERCHANT_EMAIL (for each seller of that ASIN). 6 7 8 9 10 11 (Id.) The requests will all be identical except for the Defendant number and associated ASIN. (Id.) 12 This Court previously ordered that Amazon shall, “at Plaintiff’s request, provide 13 Plaintiff’s counsel with any e-mail address known to be associated with the Defendants’ 14 respective Seller IDs.” (“TRO,” ECF No. 10, at 9.) Plaintiff states Amazon informed 15 16 17 18 19 20 21 22 23 24 Plaintiff there were no Seller IDs for these Defendants. (Ex Parte App. 6.) It appears that Amazon is the only party with the information necessary to identify the Defendants. A. Legal Standard Discovery is not permitted before the parties have conferred pursuant to Federal Rule of Civil Procedure 26(f) unless authorized by court order. Fed R. Civ. P. 26(d)(1). “[H]owever, in rare cases, courts have made exceptions, permitting limited discovery to ensue after filing of the complaint to permit the plaintiff to learn the identifying facts necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999). Requests to conduct discovery prior to a Rule 26(f) conference are granted upon a showing of good cause by the moving party, which may be 25 found “where the need for expedited discovery, in consideration of the administration of 26 justice, outweighs the prejudice to the responding party.” Semitool, Inc. v. Tokyo Electron 27 Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 2002). “A district court’s decision to grant 28 2 18-CV-823-JLS (JLB) 1 discovery to determine jurisdictional facts is a matter of discretion.” Columbia Ins. Co., 2 185 F.R.D. at 578 (citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 3 430 n.24 (9th Cir. 1977)). 4 District courts in the Ninth Circuit apply a three-factor test for determining whether 5 good cause exists to allow for expedited discovery to identify Doe defendants. See 6 Columbia Ins., 185 F.R.D. at 578–80. “First, the plaintiff should identify the missing party 7 with sufficient specificity such that the Court can determine that defendant is a real person 8 or entity who could be sued in federal court.” Id. at 578. Second, the plaintiff “should 9 identify all previous steps taken to locate the elusive defendant” to ensure that the plaintiff 10 has made a good faith effort to identify and serve process on the defendant. Id. at 579. 11 Third, the plaintiff “should establish to the Court’s satisfaction that plaintiff’s suit against 12 defendant could withstand a motion to dismiss.” Id. (citing Gillespie v. Civiletti, 629 F.2d 13 627, 642 (9th Cir. 1980)). Further, the plaintiff “should file a request for discovery with 14 the Court, along with a statement of reasons justifying the specific discovery requested as 15 well as identification of a limited number of persons or entities on whom discovery process 16 might be served and for which there is a reasonable likelihood that the discovery process 17 will lead to identifying information about defendant that would make service of process 18 possible.” Id. at 580 (citing Gillespie, 629 F.2d at 642). 19 B. Analysis 20 First, Plaintiff points to the fact that it has identified Defendants Nos. 50–74 21 previously in its Complaint. (Ex. Parte App. 6.) Plaintiff has previously alleged that all 22 Defendants in this matter are subject to personal jurisdiction in this district because they 23 direct their activities toward and conduct business with consumers with this state. 24 (“Compl.,” ECF No. 1, ¶ 6.) Plaintiff attests that Amazon “knows the Seller IDs and 25 associated email addresses for the ASINs used by Defendants 50–74 because Amazon 26 received infringement notices from Plaintiff regarding infringing products with the ASINs 27 associated with Defendants 50–74.” (Ex Parte App. 6.) The Court finds that Plaintiff has 28 3 18-CV-823-JLS (JLB) 1 met its burden of showing that Defendants Nos. 50–74 are entities that can be sued in this 2 court. 3 Second, Plaintiff states it sent notices to Amazon identifying ASINs associated with 4 Defendants Nos. 50–74 so Amazon could remove the infringing products, but Plaintiff 5 “cannot find documents identifying the Seller IDs of the sellers that sold the infringing 6 products associated with Defendants 50–74.” (Id.) Plaintiff states Amazon “took the 7 position that there were no Seller IDs listed for Defendants 50–74, so it had no obligation 8 to provide Seller IDs and email addresses for Defendants 50–74.” (Id.) Plaintiff states 9 “Amazon appears willing to provide the Seller IDs and email addresses for Defendants 10 50–74 if required to do so by subpoena or court order.” (Id.) The Court finds that Plaintiff 11 has made a good faith effort to identify and serve process on Defendants. Plaintiff cannot, 12 on its own, locate Defendant with any greater specificity than it already has. 13 Third, Plaintiff attests its suit could withstand a motion to dismiss. Indeed, this Court 14 has already determined “Plaintiff has proven it has a likelihood of success on its 15 infringement claims for its copyright, trademark, and patents.” (TRO 7.) 16 Plaintiff’s Application for discovery is GRANTED as follows: 17 1. Plaintiff may serve on Amazon subpoenas, pursuant to and compliant with the 18 procedures of Federal Rule of Civil Procedure 45, seeking only the information 19 set forth in Plaintiff’s present application: a. MERCHANT_LEGAL_NAME (for 20 each seller of that ASIN); b. MERCHANT_FRIENDLY_NAME (for each seller 21 of that ASIN); and c. MERCHANT_EMAIL (for each seller of that ASIN); 22 2. Plaintiff’s subpoenas to Amazon must provide a minimum of thirty (30) calendar 23 days’ notice before any production responsive to the subpoena shall be made to 24 Plaintiff, see Fed. R. Civ. P. 34(b)(2)(A); 25 26 3. At the time Plaintiff serves its subpoenas on Amazon, Plaintiff shall also serve on Amazon a copy of this Order; 27 4. Within fourteen (14) calendar days after service of the subpoenas, Amazon shall 28 notify each Defendant Nos. 50–74 that his, her, or its identify has been 4 18-CV-823-JLS (JLB) 1 subpoenaed by Plaintiff and shall provide the Defendant with a copy of this 2 Order; 3 5. The Defendant shall have thirty (30) calendar days from the date of such notice 4 to challenge Amazon’s disclosure of his, her, or its name and address by filing an 5 appropriate pleading with this Court contesting the subpoena; 6 6. If Amazon seeks to modify or quash the subpoenas, it shall do so as provided by 7 8 Federal Rule of Civil Procedure 45(d)(3); II. Supplemental Notice 9 Plaintiff requests the Court order it to file separate notices linked to the Complaint 10 and the Temporary Restraining Order that list the Defendants Nos. 50–74 and their 11 respective Seller IDs. (Ex Parte App. 7.) The Court GRANTS the request. If and when 12 Amazon supplies Plaintiff with the Seller IDs associated with Defendants Nos. 50–74, 13 Plaintiff SHALL file notices with the Court that list these Defendants and their respective 14 Seller IDs. 15 III. Clarification Regarding Alternative Service 16 Plaintiff requests clarification that it is authorized to serve Defendants Nos. 50–74 17 pursuant to the Order Granting Motion Authorizing Alternative Service on Defendants. 18 (Ex Parte App 7.) The Court has previously authorized alternate service of process on 19 Defendants via email and website publication. (ECF No. 19.) This order applies to all 20 Defendants provided that Plaintiff’s attestations in its Motion for Alternative Service, (ECF 21 No. 18), apply to Defendants Nos. 50–74 as well. 22 IV. TRO and Preliminary Injunction Dates 23 Plaintiff requests the Court extend the TRO and continue the hearing and briefing 24 schedule set for Plaintiff’s Motion for Preliminary Injunction. The Court EXTENDS the 25 TRO until further order of the Court. However, the Court finds it would be premature to 26 set a hearing date for the Motion for Preliminary Injunction, given the time parameters for 27 Plaintiff’s discovery request set forth above. The Court VACATES the hearing for 28 Plaintiff’s Motion for Preliminary Injunction currently set for June 14, 2018 at 1:30 p.m. 5 18-CV-823-JLS (JLB) 1 Plaintiff SHALL inform the Court when and if it is able to serve Defendants Nos. 50–74. 2 At that time, the Court will set a briefing and hearing schedule that allows these Defendants 3 a fair opportunity to oppose the Motion. 4 5 IT IS SO ORDERED. Dated: June 12, 2018 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 18-CV-823-JLS (JLB)
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