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Back Shop Tiefkuhl Gmbh v. Gn Trade, Inc.

United States District Court, Ninth Circuit

July 1, 2013

BACK SHOP TIEFKUHL GmbH, Plaintiff,
v.
GN TRADE, INC., et al. Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

Presently pending before the court is plaintiff Back Shop Tiefkuhl GMBH's motion to compel disclosures and discovery from defendants GN Trade, Inc. and Vladimir Demin, along with a request for monetary and terminating sanctions to be imposed against these defendants, which was noticed for hearing on June 27, 2013. (ECF No. 48.)[1] Because plaintiff's motion involves an alleged complete and total failure to respond to a discovery request or order, defendants were required to file an opposition to the motion seven (7) days prior to the hearing, i.e., by June 20, 2013. See E.D. Cal. L.R. 251(e). Although that deadline has passed, defendants GN Trade, Inc. and Vladimir Demin failed to file an opposition to plaintiff's motion.

A hearing on the motion was nonetheless conducted on June 27, 2013. At the hearing, Stephen Hamilton appeared on behalf of plaintiff, and defendants GN Trade, Inc. and Vladimir Demin failed to appear. After considering plaintiff's briefing and supporting documentation, the oral argument at the hearing, and the applicable law, the court imposes monetary sanctions against defendants GN Trade, Inc. and Vladimir Demin, and further recommends that terminating sanctions (as specified below) be issued against these defendants.

BACKGROUND

Plaintiff commenced this action on February 29, 2012. (Complaint, ECF No. 2 ["Compl."].) Plaintiff is a German corporation that produces a diverse line of frozen European bakery products, which are sold throughout the United States under the name and mark "Back Shop, " in which plaintiff claims to have established protectable common law trademark rights. (Compl. ¶¶ 4, 9-10.) According to plaintiff, defendant GN Trade, Inc., which does business under the name and mark "Backer Back, " is a California corporation with its principal business office in Sacramento, and the individual defendants are all involved with GN Trade in some capacity. (Id. ¶¶ 5-6.) Plaintiff essentially alleges that defendants have been selling Back Shop products through improper and illegal means, including by: (a) misappropriating plaintiff's website through utilizing on defendants' own website exact copies of plaintiff's product photographs, nomenclature, descriptions, and nutrition information without plaintiff's consent; and (2) selling plaintiff's Back Shop products by removing or obliterating plaintiff's label and affixing defendants' own label in its place. (Id. ¶¶ 11-16.) Plaintiffs' complaint asserts claims for (1) false designation of origin under 15 U.S.C. § 1125(a)(1)(A); (2) false advertising under 15 U.S.C. § 1125(a)(1)(B); (3) copyright infringement under 17 U.S.C. §§ 101 et seq.; and (4) unfair business practices under Cal. Bus. & Prof. Code §§ 17200 et seq. against all defendants. (Id. ¶¶ 17-40.)

After service of process, all defendants answered the complaint. (ECF Nos. 6-7, 12-13, 15-16.) On May 29, 2012, prior to the scheduled June 11, 2012 pretrial scheduling conference before the district judge, the parties filed a joint status report in which defendants GN Trade, Inc. and Vladimir Demin did not join, in light of their failure to respond to multiple requests for input. (ECF No. 17.) On June 6, 2012, the district judge continued the pretrial scheduling conference to September 17, 2012, and ordered the filing of a joint status report no later than September 4, 2012, which was to include a response by all parties. (ECF No. 22.)

In the meantime, on June 4, 2012, counsel for defendants GN Trade, Inc. and Vladimir Demin filed a motion to withdraw, indicating that defendants GN Trade, Inc. and Vladimir Demin (apparently the Chief Executive Officer of GN Trade, Inc.) had failed to pay their counsel's fees and expenses, and had insisted on presenting an unfounded claim or defense, resulting in a breakdown of the attorney-client relationship. (ECF No. 20.) At the July 30, 2012 hearing on the motion to withdraw, neither defendant Vladimir Demin nor another representative of defendant GN Trade, Inc. appeared, and the district judge continued the hearing on the motion until August 13, 2012. (ECF Nos. 26, 27.) The district judge was particularly concerned with whether GN Trade, Inc. adequately appreciated that it could not as a corporation proceed without counsel in federal court if the motion to withdraw were granted. (ECF No. 27.) The district judge ordered defendant Vladimir Demin and a representative of defendant GN Trade, Inc. to appear in person for the hearing and cautioned that failure to appear "may amount to contempt of court and could result in sanctions being imposed against defendants." (ECF No. 27.)

When these defendants also did not appear at the August 13, 2012 hearing as ordered, the district judge again continued the hearing on the motion to withdraw to September 10, 2012, and ordered them to appear in person at that hearing and show cause why they should not be held in contempt of court for their previous failure to appear. (ECF No. 29, 30.) Defendants Vladimir Demin and GN Trade, Inc. were further cautioned that they "may be adjudged in contempt of court, have sanctions levied against them, including the entry of their default, if they fail to appear at the September 10, 2012 hearing." (ECF No. 30.) On September 4, 2012, the other parties filed a joint status report in accordance with the district judge's prior order, noting that defendants Vladimir Demin and GN Trade, Inc. had yet again not participated in the drafting of that statement, either directly or through their withdrawing counsel, in violation of the court's prior order. (ECF No. 34.) Finally, after defendants Vladimir Demin and GN Trade, Inc. again failed to appear at the hearing on the motion to withdraw and otherwise failed to respond to the court's order to show cause, the district judge granted their counsel's motion to withdraw on September 12, 2012. (ECF Nos. 36, 39.) However, it does not appear that any specific sanctions were issued at that time.

The next day, on September 13, 2012, the district judge issued a status (pretrial scheduling) order. (ECF No. 40.) That order required the parties to serve initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) no later than September 28, 2012; disclose experts and produce reports pursuant to Federal Rule of Civil Procedure 26(a)(2) no later than May 1, 2013, with disclosure of rebuttal experts and reports no later than May 31, 2013; complete[2] all discovery no later than July 1, 2013; and file any dispositive motions no later than July 22, 2013. (Id.) The final pretrial conference and jury trial were set for September 30, 2013, and October 29, 2013, respectively, before the district judge. (Id.)

The instant motion to compel disclosures and discovery, accompanied by a request for monetary and terminating sanctions, followed on June 3, 2013. (ECF No. 48.) In its motion, plaintiff notes that, despite the court's September 28, 2012 deadline for serving initial disclosures, defendants Vladimir Demin and GN Trade, Inc. have yet to make such disclosures. Plaintiff further indicates that it had served a set of interrogatories and a set of requests for production of documents on each defendant on February 15, 2013, and that defendants Vladimir Demin and GN Trade, Inc. have also entirely failed to respond to those discovery requests. (See Declaration of Stephen R. Hamilton, ECF No. 48 at 5-6 ["Hamilton Decl."], ¶¶ 4-6.) On May 14, 2013, plaintiff's counsel sent each of these defendants a meet-and-confer letter concerning the outstanding discovery, requesting that they serve the outstanding discovery responses without objections, or at least contact plaintiff's counsel, by May 17, 2013. (ECF Nos. 48-1, 48-2.) According to plaintiff's counsel, no further response was received from defendants Vladimir Demin and GN Trade, Inc. (Hamilton Decl. ¶ 7.)

Plaintiff requests an order compelling defendants Vladimir Demin and GN Trade, Inc. to serve responses to plaintiff's interrogatories and requests for production of documents, without objection, as well as their initial disclosures, within ten (10) days. Alternatively, plaintiff requests terminating sanctions (i.e., an order striking these defendants' answers and entering their default). Plaintiff additionally points out that defendant GN Trade, Inc. is impermissibly proceeding without counsel in federal court in violation of Local Rule 183. Finally, plaintiff requests $800.00 in monetary sanctions, which represents the fees and costs plaintiff incurred with respect to meet-and-confer efforts and preparation of this motion.

DISCUSSION

Given the showing made by plaintiff's motion, plaintiff would certainly be entitled to an order compelling defendants GN Trade, Inc. and Vladimir Demin to serve their initial disclosures and responses to plaintiff's interrogatories and requests for production of documents, with any objections waived. However, in light of the history of this action, as outlined above; the imminent discovery completion deadline; and defendants GN Trade, Inc. and Vladimir Demin's apparent abandonment of their defense in this action, the court instead ...


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