United States District Court, S.D. California
NUTRITION DISTRIBUTION LLC, an Arizona Limited Liability Company, Plaintiff,
NATHAN DEGRAVE, an individual d/b/a POWERSUPPS, Defendants.
ORDER GRANTING MOTION TO CONDUCT DISCOVERY ON DAMAGES
[ECF NO. 6]
William V. Gallo United States Magistrate Judge
before the Court is Plaintiff Nutrition Distribution
LLC's ex parte Motion to Conduct Discovery on
Damages. (ECF No. 6.) Defendants did not file an Opposition
to the Motion. For the reasons that follow, Plaintiff's
Motion is GRANTED.
April 25, 2017, Plaintiff filed a Complaint alleging the
false advertising of Defendant's prohormone products in
violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B).
(ECF No. 1.) On June 5, 2017, the Clerk of the Court entered
an Entry of Default against Defendants based on their failure
to plead or otherwise defend in this action as directed by
the Summons and as provided for by the Federal Rules of Civil
Procedure. (ECF No. 5.) Plaintiff now seeks leave to conduct
discovery on the limited issue of damages pursuant to the
Entry of Default.
scope and limitations of discovery are set forth by the
Federal Rules of Civil Procedure. Rule 26 provides in
pertinent part that:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1).
courts have broad discretion in granting or denying
discovery. Hallett v. Morgan, 296 F.3d 732, 751 (9th
Cir. 2002) (“broad discretion is vested in the trial
court to permit or deny discovery, and its decision to deny
discovery will not be disturbed except upon the clearest
showing that denial of discovery results in actual and
substantial prejudice to the complaining litigant”).
Rule 26(d)(1) provides that “[a] party may not seek
discovery from any source before the parties have conferred
as required by Rule 26(f), except ... when authorized by
these rules, by stipulation, or by court order.”
Fed.R.Civ.P. 26(d). Courts apply a “good cause”
standard in considering motions to expedite discovery.
Semitool, Inc. v. Tokyo Electron Am., Inc., 208
F.R.D. 273, 276 (N.D. Cal. 2002); see also Am. LegalNet,
Inc. v. Davis, 673 F.Supp.2d 1063, 1066 (C.D. Cal.
2009); In re Countrywide Fin.Corp. Derivative
Litig., 542 F.Supp.2d 1160, 1179 (C.D. Cal. 2008). Good
cause may be found where the need for expedited discovery, in
consideration of the administration of justice, outweighs the
prejudice to the responding party. Semitool, 208
F.R.D. at 276.
cause for expedited discovery is frequently found in cases in
cases where a defendant has failed to appear, resulting in
the entry of default against the defendant, and the plaintiff
is in need of evidence to establish damages. See Sheridan
v. Oak Street Mortg., LLC, 244 F.R.D. 520, 522 (E.D.
Wis. 2007); Twitch Interactive, Inc. v. Johnston,
No. 16-CV-03404, 2017 WL 1133520, at *4 (N.D. Cal. 2017);
Adobe Sys. Inc. v. Max Bunhey, et al., No. 131365,
2013 WL 12140304, at *2 (C.D. Cal. Oct. 29, 2013).
5, 2017, default was entered against Defendants for failing
to plead or otherwise defend in this action. Plaintiff
claims, and the Court agrees, a plaintiff may recover
defendant's profits, any damages sustained, and the costs
of the action in false advertisement claims made pursuant to
the Lanham Act. See 15 U.S.C. § 1117(a). In
this Motion, Plaintiff seeks discovery from payment gateway
services and financial institutions of Defendants, one of
which is Paypal. (ECF No. 6-1 at 3:18-4:2.) However, since
Defendants have refused to participate in this action,
Plaintiff cannot conduct traditional discovery.
the Court finds that Plaintiff has established good cause to
warrant expedited discovery in this matter in order to
support an anticipated motion for entry of default judgment