United States District Court, D. Nevada
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiffs Ex Parte
Motion for Leave to Serve Subpoenas and for Extension of Time
to Serve Summons and Complaint (ECF No. 5), filed on June 27,
April 20, 2017, Plaintiffs MGM Resorts International, Mirage
Resorts Incorporated and Mandalay Resort Group
(“Plaintiffs”) filed a complaint against John
Does 1 through 10 (“Defendants”). Plaintiff
asserts that Defendants are unknown manufacturers and unknown
suppliers of perfume and other beauty and skin care products
that unlawfully bear Plaintiffs registered trademarks.
Complaint (ECF No. 1), pg. 3, ¶ 9.
Plaintiffs allege claims of Trademark Counterfeiting,
Trademark Infringement, Unfair Competition, Trademark
Dilution, Common Law Trademark Infringement and Common Law
Unfair Competition. Id. at pgs. 10-14.
filed the instant Motion requesting leave to conduct
immediate, limited discovery to identify and obtain
Defendants' contact information. Plaintiffs seek to
subpoena third-party retailers who sell the “infringing
products” and represent that the information they
obtain will be used only to identify, contact and serve
Defendants. Motion (ECF No. 5), pg. 2. In addition,
Plaintiffs represent that their subpoenas are narrow in scope
and are the only way to obtain the information needed to
serve Defendants. Plaintiffs assert that because the
third-party retailers obtain the infringing products from
Defendants, they must have the information Plaintiffs seek.
Id. Plaintiff argues that without this information,
they will not be able to identify Defendants and continue to
prosecute this lawsuit. Id. at pg. 3.
claim that good cause exists to grant their request because:
(1) there is no other means for identifying Defendants, (2)
the target of discovery has information sought readily
available, (3) there is no prejudice to Defendants or to the
targets of discovery, (4) discovery will be able to uncover
Defendants' identities and (5) the complaint will not be
dismissed on other grounds. Id. at pgs. 6-8.
Discovery Requests Prior to the Rule 26(f)
discovery is not permitted without a court order before the
parties have held a conference pursuant to Federal Rule of
Civil Procedure 26(f). Fed.R.Civ.P. 26(d)(1).
“[H]owever, in rare cases, courts have made exceptions,
permitting limited discovery to ensue after filing of the
complaint to permit the plaintiff to learn the identifying
facts necessary to permit service on the defendant.”
Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573,
577 (N.D.Cal.1999) (citing Gillespie v. Civiletti,
629 F.2d 637, 642 (9th Cir.1980)). “The Ninth Circuit
has held that when the defendants' identities are unknown
at the time the complaint is filed, courts may grant
plaintiffs leave to take early discovery to determine the
defendants' identities ‘unless it is clear that
discovery would not uncover the identities, or that the
complaint would be dismissed on other grounds.' ”
808 Holdings, LLC v. Collective of December 29, 2011
Sharing Hash, 2012 U.S. Dist. LEXIS 62980, *7 (S.D.Cal.
May 4, 2012) (quoting Gillespie, 629 F.2d at 642)).
“A district court's decision to grant discovery to
determine jurisdictional facts is a matter of
discretion.” Columbia Ins., 185 F.R.D. at 578
(citing Wells Fargo & Co. v. Wells Fargo Express
Co., 556 F.2d 406, 430 n. 24 (9th Cir.1977)). To
determine whether to grant a request for early discovery, the
court shall apply the conventional “good cause”
standard that weighs the need for discovery to further
justice against the prejudice to the opposing party.
Semitool, Inc. v. Tokyo Electron Am., Inc., 208
F.R.D. 273, 275-76 (N.D.Cal.2002).
in this district apply a three-factor test when considering
motions for early discovery to locate certain defendants.
Columbia Ins., 185 F.R.D. at 578-80. First,
“the plaintiff should identify the missing party with
sufficient specificity such that the Court can determine that
defendant is a real person or entity who could be sued in
federal court.” Id. at 578. Second, the
plaintiff “should identify all previous steps taken to
locate the elusive defendant” to ensure that the
plaintiff has made a good faith effort to identify and serve
process on the defendant. Id. at 579. Third, the
“plaintiff should establish to the Court's
satisfaction that plaintiff's suit against defendant
could withstand a motion to dismiss.” Id.
(citing Gillespie, 629 F.2d at 642). “[T]o
prevent abuse of this extraordinary application of the
discovery process and to ensure that the plaintiff has
standing to pursue an action against defendant, ”
plaintiff must show that some act giving rise to liability
actually occurred and that the discovery is aimed at
identifying the person who allegedly committed the act.
Id. at 579-80 (citing Plant v. Various John
Does, 19 F.Supp.2d 1316, 1321 n. 2 (S.D.Fla.1998)).
Typically, District Courts within the Ninth Circuit have
found good cause for early or expedited discovery in
infringement cases. Semitool, 208 F.R.D. at 276.
Good Cause Exists for Leave to Conduct Expedited
have demonstrated good cause exists for leave to take limited
early discovery by successfully pleading the three factors
Identification of Missing Parties with ...