1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 VANILLA CHIP, LLC dba Case No.: 23-cv-2276-GPC-DTF TruHeight, 9

ORDER DENYING EX PARTE

Plaintiff, 10 APPLICATION FOR EXPEDITED v. DISCOVERY 11

NOGENETICS.COM; ON DEMAND

12 FULLFILLMENT, LLC; VOX [ECF No. 9] 13 NUTRITION, INC., DOES 1-10, 14 Defendants. 15 16

17 Before the Court is Plaintiff Vanilla Chip, LLC’s (“Plaintiff”) “Ex Parte Motion for 18 Expedited Discovery Prior to a Rule 26(f) Conference.” (ECF No. 9.) Defendants On 19 Demand Fulfillment, LLC (“On Demand”) and VOX Nutrition, Inc. (“VOX”) have been 20 served with Plaintiff’s First Amended Complaint (“FAC”) but have not yet appeared in the 21 action. (ECF Nos. 6-7.) For the reasons discussed below, the Court DENIES Plaintiff’s 22 application. 23 I. BACKGROUND 24 On December 13, 2023, Plaintiff filed its Complaint against Defendants 25 NoGenetics.com, and VOX Nutrition, LLC for copyright and trademark infringement. 26 (ECF No. 1.) On March 18, 2024, Plaintiff filed a First Amended Complaint (“FAC”) 27 naming Defendants NoGenetics.com, VOX Nutrition, Inc., On Demand Fulfillment, LLC, 28 and Does 1-10. (ECF No. 4.) Defendants VOX and On Demand were served with the FAC 1 on March 26, 2024. (ECF Nos. 6-7.) On May 20, 2024, Plaintiff filed an ex parte motion 2 seeking expedited discovery to ascertain identifying information for NoGenetics.com, 3 along with “information on the VOX/OnDemand/NoGenetics.com agency relationship.” 4 (ECF No. 9-1 at 4.) 5 In their FAC, Plaintiff asserts that Defendants are liable for trademark and copywrite 6 infringement. (See generally FAC.) Plaintiff alleges that NoGenetics.com is selling 7 counterfeit TruHeight products on its website. (See id. at 3.) VOX is alleged to be the 8 manufacturer of the alleged counterfeit product which they deliver to On Demand. (See 9 id.) Once received by On Demand, they affix the labels provided by their client 10 NoGenectics.com and ship the products to the customers on behalf of their client. (See id.) 11 Plaintiff claims that, at the very least, On Demand and VOX most likely have 12 knowledge of the identifying information for NoGenetics.com including “the full names of 13 its owners and employees, as well as its business addresses, payment information, trade 14 channels, website traffic, geolocation data, phone number(s), email addresses, IP 15 addresses, billing addresses, and its physical addresses.” (Id.) Counsel for On Demand 16 and VOX has not agreed to provide this information pursuant to Plaintiff’s informal 17 request. (See Eastman Decl., ECF No. 9-2, at ¶¶ 11-13.)1 Counsel for On Demand and 18 VOX has “conced[ed] that On Demand applied labeling and shipped product for 19 NoGenetics.com.” (Id. at ¶ 12.) 20 Plaintiff claimed that good cause exists to grant the ex parte motion because: (1) the 21 scope of discovery sought is narrow; (2) there is an insignificant burden on the Defendants, 22 and (3) without knowing the identity of NoGenetics.com, Plaintiff will be “unfairly 23 prejudiced in the meet and confer conference to propose a potential discovery plan.” (Id. 24 at 6-7.) 25 / / / 26

27 1 As set forth in more detail below, Plaintiff has since filed another pleading indicating that Defendants’ 28 1 II. STANDARD OF REVIEW 2 Absent a court order, discovery is generally not allowed prior to the parties’ Federal 3 Rule of Civil Procedure 26(f) conference. See Fed. R. Civ. P. 26(d)(1). Early discovery 4 to identify a defendant may be warranted given “a plaintiff cannot have a discovery 5 planning conference with an anonymous defendant.” UMG Recordings, Inc. v. Doe, No. 6 C-08-03999-RMW, 2008 WL 4104207, at *2 (N.D. Cal. Sept. 2008). To determine if early 7 discovery is warranted in a particular case, the court applies a “good cause” test by 8 weighing the need for discovery to further justice against the prejudice it may cause the 9 opposing party. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 10 2002). 11 In order to determine whether good cause exists, Courts “examine the 12 reasonableness of the [expedited discovery] request by considering a non-exhaustive set of 13 factors: (1) whether a preliminary injunction is pending, (2) the breadth of the discovery 14 requests, (3) the purpose for requesting the expedited discovery, (4) the burden on the 15 defendant of compliance with the requested discovery, and (5) how far in advance of the 16 typical discovery process the request was made.” TGG Mgmt. Co. Inc. v. Petraglia, No. 17 19-cv-2007-BAS-KSC, 2019 WL 6310556, at *2 (S.D. Cal. Nov. 25, 2019) (citing Am. 18 LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1067 (C.D. Cal. 2009)). 19 III. DISCUSSION 20 Here, the Court finds that the “good cause” factors do not weigh in favor of the 21 request to expedite discovery. First, Plaintiff concedes that there is no pending motion for 22 preliminary injunction nor do they indicate an intent to file such a motion but instead argue 23 that without a “complete understanding of NoGenetics.com’s identity” they will be 24 prejudiced in the “meet and confer conference to propose a potential discovery plan.” (ECF 25 No. 9-1 at 6.) The fact that there is no pending motion for preliminary injunction, nor is 26 there any indication that one will be filed, lessens the urgency, or need for early discovery. 27 See MedImpact Healthcare Sys., Inc. v. IQVIA Holdings, Inc., No. 19cv1865-GPC (LL), 28 2019 WL 6310554, at *3 (S.D. Cal. Nov. 25, 2019.) 1 Second, Plaintiff fails to set forth in the motion the specific forms or scope of 2 discovery they are seeking. Instead, they simply inform the Court what information they 3 are hoping to find in this discovery. Specifically, Plaintiff’s seeks “expedited discovery on 4 identifying information for NoGenetics.com as well as information on the Vox/On 5 Demand/NoGenetics.com agency relationship,” which includes the “full names of 6 [NoGenetics.com’s] owners and employees, as well as its business addresses, payment 7 information, trade channels, website traffic, geolocation data, phone number(s), email 8 addresses, IP addresses, billing addresses, and its physical addresses.” (ECF No. 9-1 at 4.) 9 Plaintiff also seeks this information from “https://www.ionos.com (“Ionos), the domain 10 provider of NoGenetics.com.” (Id.) Instead of including the specific scope and nature of 11 the discovery they seek in the motion filed with the court and served on the Defendants, 12 they submitted a proposed order directly to the Court, which was not filed in the Court’s 13 docket, setting forth the scope of discovery sought including subpoenas to third parties, 14 multiple depositions, and multiple written discovery and production of document requests. 15 By failing to include the scope of the discovery requested in the motion and therefore, 16 failing to include this in the record before the Court, the Court cannot find that the 17 discovery sought it appropriately tailored and will not be unduly burdensome. 18 Finally, Defendants VOX and On Demand have not yet answered or responded to 19 Plaintiff’s FAC. Instead, a few days after the filing of the motion currently before this 20 Court, Plaintiff has filed an ex parte “Motion for Order Granting a 90-day Extension of 21 Time for Defendants VOX Nutrition, Inc. and On Demand Fulfillment, LLC to Answer or 22 Otherwise Respond to the Complaint.”2 (ECF No. 10.) In this motion, Plaintiff 23 acknowledges that Counsel for these Defendants “have been cooperating to provide 24 information regarding the case, [including] information regarding the primary defendant, 25

26 2 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05-cv-00452-MMA- 27 WMc, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. 28 1 ||NoGenetics.com.” (/d. at 2.) Clearly, this acknowledgement by Plaintiffs counsel of 2 || apparent cooperation by Defendants’ Counsel appears to reflect a change of circumstances 3 || since Plaintiff filed the motion that is before this Court. Moreover, this additional request 4 a delay in answering the FAC would necessarily extend by several months the typical 5 course of discovery and the scheduling of a Rule 26(f) conference negating the need for 6 ||expedited discovery. See Wedge Water LLC v. Ocean Spray Cranberries, Inc., No. 7 ||21cv0809-GPC (BLM), 2021 WL 2138519, at *4 (S.D. Cal. May 26, 2021) (holding that 8 ||a request for expedited discovery was significantly premature where Defendant had not yet 9 || answered or otherwise responded to complaint.) 10 Conclusion 11 The Court finds, after weighing all the factors, that Plaintiff has not demonstrated 12 || good cause for expedited discovery. Semitool, 208 F.R.C. at 276. There is no pending 13 |/motion for preliminary injunction, Plaintiff failed to properly submit the scope of the 14 || proposed discovery requests to the Court’s record, and the Defendants have yet to file and 15 Answer or otherwise respond to the FAC. Finally, Plaintiff has failed to adequately 16 ||demonstrate why the discovery requested is needed significantly in advance of the typical 17 || discovery process. Instead, Plaintiff has filed a separate motion that directly contradicts 18 need for expedited discovery. Accordingly, Plaintiff's ex parte Motion for Expedited 19 || Discovery is DENIED. 20 IT IS SO ORDERED. Size, 22 Dated: May 28, 2024 3 Hon. D. Thomas Ferraro United States District Judge 24 25 26 27 28