The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES , AND DENYING DEFENDANTS' MOTION TO DISMISS, OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT ; GRANTING 
Pending before the Court are the parties' two concurrently filed Motions: Plaintiff's Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues, (Dkt. # 417), and Defendants' Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 41, or in the alternative for Summary Judgment. (Dkt. # 416.) The parties timely filed their respective oppositions and replies to the instant Motions. After careful consideration of the briefing and evidence submitted, the Court deems the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78;
L.R. 7-15. For the following reasons, the Court DENIES both Plaintiff's and Defendants' Motions.
Plaintiff, Larin Corporation ("Plaintiff"), initiated this unfair competition action against Defendants AllTrade, Inc., AllTrade Tools, LLC, and Andre Livian (collectively, "Defendants") on December 15, 2006. (Dkt. # 1.) Because the procedural history of the case is extensive, the Court will only recount those events which are relevant to the instant Motions. On March 19, 2008, the Court denied Defendant AllTrade, Tools, LLC's Motion for Summary Judgment. (Dkt. # 212.) However, on Defendants' Motion for Reconsideration, the Court granted Defendants' Motion for Summary Judgment as to the claim of trade dress infringement, finding that Plaintiff was judicially estopped from pursuing this theory. (Dkt. # 325.) Specifically, the Court found that "Plaintiff's conduct during the course of discovery was a bad faith attempt to mislead Defendants as to the theory of liability it was being called upon to defend." (Dkt. # 325 at 3.) Because Plaintiff abandoned its other theory of false advertising and consequently was left with no remaining claims, the Court entered judgment in favor of Defendants on April 21, 2008. (Dkt. # 341.) On April 25, 2008, the Court denied Plaintiff's Ex Parte Motion for Reconsideration. (Dkt. # 345.) Plaintiff timely appealed to the Ninth Circuit on May 7, 2008. (Dkt. # 354.)
On March 1, 2010, the Ninth Circuit reversed the grant of summary judgment in favor of Defendants. (Dkt. # 402.) While the Ninth Circuit did not "opine as to whether the [Court] correctly concluded that Larin's attorney attempted to mislead Alltrade's counsel during discovery" and found that the Court's "frustration with said counsel's lack of clarity [was] certainly understandable[,]" it stated that, assuming there "is error to be remedied here, judicial estoppel is the wrong tool for the job." (Id. at 4.) Thus, the case was remanded as to the issue of trade dress infringement. (Id. at 6.)
Defendants now move to dismiss Plaintiff's case in its entirety based on Federal Rule of Civil Procedure 41(b), which they assert is the right tool to remedy Plaintiff's discovery abuses. The Court will address this argument, along with the substantive arguments regarding the parties' respective Motions for Summary Judgment below.
The Court has had the occasion to recount the factual background of this case in its previous Orders. Because the undisputed background facts essentially have not changed, the Court will only briefly relate the pertinent facts for context.
In 2001 and 2002, Plaintiff began to manufacture and sell a product identified as the Larin Pneumatic Garage Seat (the "Larin stool"). (Plaintiff's Statement of Uncontroverted Facts ("PUF"), 10.) The Larin stool was sold in individual boxes measuring 22" x 22" x 24" (the "Larin box"). (PUF, 17.) The Larin box has a blueish grey background, which fades from dark to light. (PUF, 17-18.) Additionally, the box includes four color photographs depicted on the top and two sides of the box. (PUF, 20.) The photographs depict the Larin stool used by: (1)"A man sitting on a Larin stool repairing a motorcycle;" (2) "Two men sitting on Larin stools engaged in automobile repair;" (3) "A man sitting on a Larin stool in front of an automobile located on a home garage driveway engaged in automobile repair;" and (4) "Two (2) women sitting on Larin stools in a social club setting."*fn1 (PUF, 20.)
Plaintiff contends that in 2006 Defendants purchased the Larin stool and box and infringed Plaintiff's trade dress by copying the inherently distinctive elements of the Larin box, as described above. (Pl.'s Mot. at 3.) Defendants' box (the "AllTrade box") is 21 1/2" x 21 1/2" x 14". (PUF, 47.) First, as to the background, Plaintiff contends that the AllTrade box has a "similar, if not identical blueish grey color" background and contains "the identical subject matter of the (4) photographs as on the Larin box." (PUF, 48.) Defendants dispute this assertion, contending that the AllTrade box has a background created from a modified photograph of an asphalt surface and four application shots that are not identical to Plaintiff's. (Defendants' Genuine Issues of Material Fact in Opposition to Plaintiff's Motion for Summary Judgment (Dkt. # 428-2) ("DGIMF"), 48.) Second, as to the photographs, Plaintiff states that the AllTrade box, similarly to the Larin box, "includes two (2) sides with four (4) color photographs, and one side with two (2) similar color photographs which depict: (1) A man engaged in 'repair' of a motorcycle; (2) A man in the front of an automobile on a garage driveway repairing the front of an automobile; (3) A man in what appears to be the driveway engaged in a repair of an automobile; and (4) 'Two (2) women in what appears to be a social club setting.'"*fn2 (PUF, 49.) In the last photograph of the women, there are five stools depicted, two of which Plaintiff claims are actually the Larin stool. (PUF, 50, 56.) Defendants claim, on the other hand, that the stools depicted in the photographs are actually AllTrade stools. (DGIMF, 49.)
Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Evidence the court may consider includes the pleadings, ...