FitTrack, Inc. v. Hyperzoo Technology Ltd.

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 FITTRACK, INC., Case No.: 23-cv-0838-AGS-BGS 4 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR A TEMPORARY 5 v. RESTRAINING ORDER, 6 HYPERZOO TECHNOLOGY LTD., ALTERNATIVE SERVICE, AND et al., EARLY DISCOVERY (ECF 6) [7] 8 Defendants. [9] 10 In this Lanham Act trademark-infringement case, plaintiff seeks a temporary 11 restraining order, expedited discovery, and permission to serve defendants by email. Each 12 request is denied. 13 BACKROUND 14 Plaintiff FitTrack, Inc., sued two foreign companies for counterfeiting one of its 15 products, alleging trademark infringement, unfair competition, and false advertising. The 16 product is the “FitTrack Dara Smart BMI Digital Scale,” a weight scale bearing FitTrack’s 17 registered trademark. (ECF 1, at 4–5.) According to the complaint, the defendants—British 18 company Hyperzoo Technology, Ltd., and China-based ShenZhen DingKa Technology 19 Co., Ltd.—“source” knock-off Dara scales and sell them on Amazon. (See ECF 1, at 7.) 20 FitTrack contends that these imitation scales hurt its goodwill, as they are of inferior quality 21 and “cannot connect” to the mobile app that is meant for use with the scales. (ECF 1, at 11– 22 12.) 23 To aid its suit, FitTrack seeks: (1) a temporary restraining order freezing all 24 defendants’ assets and requiring them to stop infringement, (2) leave to serve defendants— 25 who are apparently unaware of this lawsuit—by email, and (3) early discovery. 26 DISCUSSION 27 FitTrack has not met the high bar for any of the emergency relief it requests. [28] 1 A. Temporary Restraining Order 2 First, FitTrack asks for a temporary restraining order, which is an emergency form 3 of injunctive relief issued without notice to the restrained party. As with all preliminary 4 injunctions, plaintiffs must establish that they are “likely to succeed on the merits, that 5 [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the 6 balance of equities tips in [their] favor, and that an injunction is in the public interest.” 7 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). But temporary restraining 8 orders require even more: plaintiff must “clearly show that immediate and irreparable 9 injury, loss, or damage will result to the movant before the adverse party can be heard in 10 opposition.” Fed. R. Civ. P. 65(b)(1)(A). FitTrack has not made that heightened showing. 11 FitTrack argues that immediate and irreparable harm will arise because “proceeding 12 through the traditional noticed motion process will result in Defendants destroying or 13 hiding their counterfeit inventory and absconding with the sales proceeds.” (ECF 6-1, at 8.) 14 But the only evidence for this contention is a statement from counsel’s two-page affidavit. 15 He asserts that the “modus operandi of counterfeiters” upon learning of infringement 16 lawsuits is to “immediately hide or destroy their inventory, withdraw all sales proceeds 17 from the Amazon storefronts,” and then “create new Amazon storefronts and begin the 18 cycle of counterfeiting anew.” (ECF 6-3, at 2.) Yet counsel offers no evidence to support 19 this assertion, nor his expertise on this topic, nor the foundation of this belief. (See id.) The 20 Court has no doubt that counsel honestly believes it. But this unadorned statement cannot 21 satisfy the necessary “clear[] show[ing]” that imminent irreparable harm “will result to the 22 movant before the adverse party can be heard in opposition.” See Fed. R. Civ. 23 P. 65 (b)(1)(A); Spengler v. LASD: L.A. Cty. Jail, No. CV 16-6880-DOC (SP), 2017 WL 24 2468771, at *2 (C.D. Cal. June 5, 2017) (noting that “conclusory” allegations are 25 “insufficient” to show “irreparable harm”). A temporary restraining order is not justified. 26 B. Electronic Service 27 Next, FitTrack requests to serve both foreign defendants by email. Typically, a 28 plaintiff must employ “internationally agreed means of service” to serve a defendant in a 1 foreign country, such as means “authorized by the Hague Convention on the Service 2 Abroad of Judicial and Extrajudicial Documents.” Fed. R. Civ. P. 4(f)(1). The three 3 countries relevant to the service issue—the United States, the United Kingdom, and 4 China—are all signatories to the Hague Service Convention. See Amazon.com, Inc. v. 5 Dong, No. 2:21-CV-00159-TL-BAT, 2023 WL 4106032 , at *2 (W.D. Wash. June 21, 6 2023) (“China is a signatory to the Hague [Service] Convention . . . .”); NordAq Energy, 7 Inc. v. Devine, No. 3:16-CV-00267 JWS, 2017 WL 9854543 , at *2 (D. Alaska July 24, 8 2017) (“[B]oth the United States and the United Kingdom are signatories to the Hague 9 [Service] Convention . . . .”). But FitTrack did not use any Convention-authorized means 10 of service. It sent DHL mail couriers to the defendants’ British and Chinese addresses. (See 11 ECF 4 & 5.) Such mail service is valid only if, among other things, “service by mail is 12 authorized under otherwise-applicable law.” Water Splash, Inc. v. Menon, 581 U.S. 271 , 13 284 (2017). The relevant otherwise-applicable law here is Federal Rule of Civil 14 Procedure 4(f). And “no part of Rule 4(f) authorizes service by ordinary international first 15 class mail.” Brockmeyer v. May, 383 F.3d 798, 804 (9th Cir. 2004). 16 Even if international mail service were permitted, FitTrack used an outdated address 17 to serve Hyperzoo, the primary defendant who hosts the allegedly offending Amazon store. 18 As of December 2022, Hyperzoo updated its address with the British government. See 19 Hyperzoo Technology LTD, Filing History, https://find-and-update.company20 information.service.gov.uk/company/13301355/filing-history (last visited July 20, 2023). 21 That new address also now appears on Hyperzoo’s Amazon store, although it’s unclear 22 when the Amazon account was updated. At any rate, it’s no surprise that service failed, as 23 FitTrack used an apparently obsolete address. 24 Nonetheless, FitTrack is entitled to request leave of court to conduct service “by 25 other means not prohibited by international agreement.” Fed. R. Civ. P. 4(f)(3). Even if 26 this Court has discretion to authorize electronic service, it is not inclined to do so under 27 these circumstances. See Fed. R. Civ. P. 4 advisory committee’s notes to the 1993 28 Amendments (“Use of the Convention procedures, when available, is mandatory if 1 ||}documents must be transmitted abroad to effect service.”); see also Khazai v. Grover, 2 || No. 2:22-CV-00100-SPG-KS, 2022 WL 18712318 , at *3 (C.D. Cal. Dec. 21, 2022) (noting 3 || that courts are “split on the issue of whether email service is permissible under the Hague 4 ||Convention”). At a minimum, before resorting to court-approved email service, FitTrack 5 make a diligent effort to use the Hague Convention procedures to serve defendants or 6 || explain how it has already done so. 7 Early Discovery 8 Finally, although defendants have not yet appeared in this case, FitTrack requests 9 || “an ex parte Order allowing expedited discovery” for “bank and payment system accounts 10 || Defendants use for their infringing sales operations.” (ECF 6-1, at 8.) “As a general rule, 11 || discovery proceedings take place only after the defendant has been served.” hey, Inc. v. 12 || Twitter, Inc., No. 22-MC-80034-DMR, 2023 WL 3874022 , at *4 (N.D. Cal. June 6, 2023). 13 || That rule has a “rare” exception for targeted early discovery “to learn the identifying facts 14 ||necessary to permit service on the defendant.” /d. A court may issue an early subpoena 15 || under this exception only if plaintiff shows “good cause” and satisfies a multi-factor test. 16 || See Malibu Media, LLC v. Doe, No. 16cv444 GPC (BGS), 2016 WL 1618227 , at *2 (S.D. 17 || Cal. Apr. 22, 2016). Yet FitTrack already knows the defendants’ identities and registered 18 || addresses. So, the requested discovery does not fit within this narrow exception. Even if it 19 || did, FitTrack has not attempted to satisfy this exception’s strict requirements. See Malibu 20 || Media, 2016 WL 1618227 , at *2 (setting forth test to justify early discovery to locate 21 || defendants). Thus, FitTrack is not entitled to early discovery. 22 CONCLUSION 23 FitTrack’s motion (ECF 6) is DENIED. 24 || Dated: July 20, 2023 25 Z f. Andrew G. Schopler United States District Judge