Nordic Naturals, Inc. v. John Does 1-50

[4] 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA [7] 8 NORDIC NATURALS, INC., Case No. 23-cv-02606-DMR 9 Plaintiff, ORDER DENYING EX PARTE 10 v. MOTION FOR LEAVE TO SERVE A SUBPOENA WITHOUT PREJUDICE 11 JOHN DOES 1-50, INDIVIDUALLY OR AS CORPORATE/BUSINESS ENTITIES, Re: Dkt. No. 10 [12] Defendant. [13] 14 Plaintiff Nordic Naturals, Inc. filed this lawsuit against John Does 1-50 for trademark 15 infringement, unfair competition, unfair and deceptive business practices, and related claims based 16 on the allegations that Defendants unlawfully sold “non-genuine products bearing Plaintiff’s 17 trademarks” online. See generally Compl. Plaintiff alleges that Defendants are selling or have 18 sold non-genuine nutritional supplements bearing Plaintiff’s trademarks through the following 19 eBay storefronts: 1nfinit3; World_Nutritions; DEAL HUNTER; urbabydol71; emerald.city.sales; 20 and 777Vitamins. Id. at ¶ 3. Plaintiff now moves ex parte for leave to serve a third-party 21 subpoena prior to the Rule 26(f) conference.1 [Docket No. 10.] It seeks leave to issue a subpoena 22 on third party eBay, Inc. for information that it claims will reveal the identities of the Doe 23 Defendants that allegedly operate the six eBay storefronts at issue. For the following reasons, the 24 motion is denied without prejudice.2 [25] 1 This is Plaintiff’s second ex parte motion for leave to take early discovery. [See Docket No. 6.] [26] The court denied the first motion without prejudice for Plaintiff’s failure to submit evidence supporting the factual contentions in its motion in accordance with Local Rule 7-5(a) and the [27] applicable legal standard. [Docket No. 9.] 1 A court may authorize discovery before the Federal Rule of Civil Procedure 26(f) 2 conference “for the parties’ and witnesses’ convenience and in the interests of justice.” Fed. R. 3 Civ. P. 26(d)(3). Courts have permitted “limited discovery . . . after [the] filing of the complaint 4 to permit the plaintiff to learn the identifying facts necessary to permit service on the 5 defendant.” Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999); see 6 also Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (“[W]here the true identity of the 7 defendants will not be known prior to the filing of a complaint . . . the plaintiff should be given an 8 opportunity through discovery to identify the unknown defendants, unless it is clear that discovery 9 would not uncover the identities, or that the complaint would be dismissed on other grounds”). 10 The plaintiff must show good cause for early discovery. Semitool, Inc. v. Tokyo Electron 11 Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be found where the need for 12 expedited discovery, in consideration of the administration of justice, outweighs the prejudice to 13 the responding party.” Id.; see also Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063 , 1066 14 (C.D. Cal. 2009) (“The party seeking expedited discovery . . . has the burden of showing good 15 cause for the requested departure from usual discovery procedures” (quoting Qwest Commc’ns 16 Int’l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003)). Courts examine 17 whether the plaintiff (1) has “identif[ied] the missing party with sufficient specificity such that the 18 Court can determine that the defendant is a real person or entity who can be sued in federal court,” 19 (2) recounted “all previous steps taken to locate the elusive defendant,” (3) established that the 20 action can withstand a motion to dismiss, and (4) demonstrated a “reasonable likelihood that the 21 discovery process will lead to identifying information about [the] defendant that would make 22 service of process possible.” Columbia, 185 F.R.D. at 578-80 . 23 Having evaluated Plaintiff’s motion for early discovery “in light of all the surrounding 24 circumstances,” Semitool, 208 F.R.D. at 275 (cleaned up), the court finds that Plaintiff has failed 25 to satisfy its burden to show good cause to take early discovery. Specifically, Plaintiff has not 26 demonstrated that the court likely has personal jurisdiction over any of the Doe Defendants. The 27 complaint includes the following allegations about personal jurisdiction: have expressly aimed tortious activities toward the State of California 1 and established sufficient minimum contacts with California by, among other things, advertising and selling infringing products 2 bearing Plaintiff’s trademarks to consumers within California through a highly interactive commercial website, through the regular course 3 of business, with the knowledge that Plaintiff is located in California and is harmed in California as a result of Defendants’ sales of 4 infringing products to California residents. 5 Compl. ¶ 6. The motion does not expressly address personal jurisdiction and does not cite any 6 legal authority that the foregoing allegations are sufficient to establish personal jurisdiction. 7 Plaintiff provides some details of Plaintiff’s efforts to identify and locate the Doe 8 Defendants in its motion. For example, eBay seller “1nfinit3” appears to have shipped an 9 unidentified product from a California address. [See Docket No. 10-2 (Micheil Decl. Aug. 9, 10 2023) ¶¶ 4-4.4.] However, Plaintiff does not provide any authority supporting this court’s exercise 11 of personal jurisdiction over that seller based on its minimum contacts with this forum. Further, 12 Plaintiff does not describe any contacts between the remaining five sellers and California. See id. 13 at ¶¶ 5-9. See Ayla, LLC v. Alya Skin Pty. Ltd., 11 F.4th 972 , 979 (9th Cir. 2021) (“[a] district 14 court’s exercise of jurisdiction over a nonresident defendant comports with due process when the 15 defendant has at least ‘minimum contacts’ with the forum and subjecting the defendant to an 16 action in that forum would ‘not offend traditional notions of fair play and substantial justice.’” 17 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945))). 18 Accordingly, Plaintiff has failed to satisfy the first factor of the Columbia test. See 19 Columbia, 185 F.R.D. at 578 (explaining that the first factor “is necessary to ensure that federal 20 requirements of jurisdiction and justiciability can be satisfied”). For the same reason, Plaintiff has 21 failed to satisfy the third factor of the Columbia test to the extent that it has not demonstrated that 22 the action can withstand a motion to dismiss due to lack of personal jurisdiction over the Doe 23 Defendants. Plaintiff’s ex parte motion for early discovery is therefore denied without prejudice. 24 See, e.g., JT Foxx Org. v. Palmer, No. 17-CV-02661-DMR, 2017 WL 3617111 , at *6 (N.D. Cal. 25 Aug. 23, 2017) (denying motion for early discovery without prejudice for failure to demonstrate 26 personal jurisdiction over Doe defendant); Bungie, Inc. v. Thorpe, No. 21-CV-05677-EMC-DMR, [27] 2021 WL 5178825 , at *7 (N.D. Cal. Nov. 8, 2021) (same). s DISTR; 1 A joint CMC statement is due by January 31, 2024. KEE CP DY > é DY 3 IT IS SO ORDERED. □□□ sO ORDERE 4 || Dated: November 7, 2023 ~ | YD 5 Z. EF rsa cP O Boia ra Dati rOWer Magistrate Judge wy ’ RP EY DISTRICS [12] © [16] & Z 18