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MGM Resorts International v. Does

United States District Court, D. Nevada

August 28, 2017

JOHN DOES 1-10, Defendants.



         This 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, 2017.


         On 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.

         Plaintiff 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.

         Plaintiffs 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.


         I. Discovery Requests Prior to the Rule 26(f) Conference

         Generally, 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., 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).

         Courts 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.


         I. Good Cause Exists for Leave to Conduct Expedited Discovery

         Plaintiffs have demonstrated good cause exists for leave to take limited early discovery by successfully pleading the three factors discussed above.

         A. Identification of Missing Parties with ...

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