Deja Vu LLC v. Hyatt Regency Corporation et al

Filing 32

ORDER: Defendant's 27 Motion to Dismiss First Amended Complaint and Defendant's 28 Motion for Sanctions Pursuant to Rule 11, Fed.R.Civ.P. are DENIED. FURTHER ORDERED that 30 Plaintiff's Motion for a Preliminary Injunction and Req uest for Hearing is DENIED without prejudice to renewing the motion following sufficient discovery. FURTHER ORDERED that, on or before 11/30/11, Plaintiff shall: (i) comply with Judge Voss's order compelling discovery (CV07-0754, Doc. 38) except that Heidi Hake need not yet submit to another deposition (see id. at 2:2223); and (ii) file a statement with this Court certifying such compliance. FURTHER ORDERED that, on or before 11/16/11, Plaintiff shall: (i) comply with Judge Voss's order requiring payment to Defendant of $4,270.04 (CV07-0754, Doc. 44); and (ii) file a statement with this Court certifying such payment. See order for complete details. Signed by Judge Neil V Wake on 10/26/11. (NKS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Deja Vu, L.L.C. aka Vu Terrace Cafe, aka
The Vu,

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Plaintiff,

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ORDER

vs.

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No. CV 11-01244-PHX-NVW

Hyatt Regency Corporation, a foreign
corporation; Hyatt Regency Scottsdale
Resort, Hyatt Corporation, a Delaware
corporation,

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Defendants.

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Before the Court is Defendant’s “Motion to Dismiss First Amended Complaint”

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(Doc. 27), Defendant’s “Motion for Sanctions Pursuant to Rule 11, Fed.R.Civ.P.”

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(Doc. 28), and “Plaintiff’s Motion for a Preliminary Injunction and Request for Hearing”

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(Doc. 30). All motions will be denied.

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Regarding Defendant’s motion to dismiss, Plaintiff was required to file a response

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by October 11, 2011, but filed nothing. Such failure to respond could be treated as

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conceding the motion. LRCiv 7.2(i). However, the substance of Defendant’s motion

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lacks merit at this stage of the case. Plaintiff’s First Amended Complaint (Doc. 26)

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plausibly alleges Plaintiff’s own use of the “The Vu” as a restaurant name, and the

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confusion and dilution caused by Defendant’s former use of “The Vu” as a restaurant

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name. Although Defendant has not operated a restaurant under the “Vu” name since

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2007, Plaintiff has alleged continuing confusion and loss of business caused by

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Defendant’s previous actions.

Plaintiff’s complaint therefore plausibly provides

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sufficient notice of the basis for its causes of action under the Lanham Act and Arizona

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trademark and unfair competition law. Defendant’s arguments, by contrast, require an

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inquiry beyond the face of the pleadings and beyond the scope of judicially noticeable

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facts. Accordingly, Defendant’s arguments are not appropriate at this stage. For the

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same reason, Defendant’s Rule 11 motion — which largely relies on accusations that

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nothing Plaintiff says is true and Plaintiff knows it — will be denied.

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Nonetheless, Plaintiff’s conduct is troubling. Plaintiff filed a materially identical

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lawsuit in 2007, over which Judge Voss presided. See Hake et al. v. VU Restaurant et

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al., No. CV07-0754-PHX-ECV (D. Ariz., filed Apr. 11, 2007). Regarding that lawsuit,

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Plaintiff now alleges that it was “overwhelmed by a most vigorous defense” and

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“conceded that the case . . . should be dismissed without prejudice to permit Plaintiff The

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‘Vu’ to take all action necessary to update its records for tax and other purposes prior to

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recommencing this case. [¶] Plaintiff The ‘Vu’ has [now] taken any and all action

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necessary to withstand the global defensive attack anticipated by Defendants.” (Doc. 26

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¶¶ 7–8.)

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Plaintiff’s assertions are not entirely forthcoming. In the previous case, Defendant

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filed a motion to compel discovery, and Plaintiff filed no response except a “Notice of

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Compliance and Service of Discovery Documents,” which (according to Judge Voss)

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“fail[ed] to address any of the specific issues identified in the motion to compel.”

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(CV07-0754, Doc. 38 at 1.) Defendant objected to the notice of compliance and again

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asked the Court to compel discovery. Plaintiff again filed no response. Judge Voss

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therefore granted Defendant’s motion and imposed sanctions, specifically, payment of

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Defendant’s fees and costs associated with bringing the motion to compel. (Id. at 2.) By

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separate order, Judge Voss set that sanction at $4,270.04. (CV07-0754, Doc. 44.)

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Plaintiff did not comply with Judge Voss’s discovery order, nor his order to pay

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attorneys fees and costs. Defendant therefore moved to have the case dismissed as a

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sanction for ignoring discovery orders, and alternatively for failure to prosecute. Plaintiff
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again failed to reply to this motion, and Judge Voss dismissed the case in March 2009,

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but without prejudice. According to Defendant, Plaintiff still has not paid the $4,270.04

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ordered by Judge Voss.

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In the previous case, Plaintiff failed to respond to Defendant’s motions at least

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three times. Plaintiff has begun to repeat such behavior here, having failed to respond to

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Defendant’s motion to dismiss.

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Plaintiff’s attention is Defendant’s Rule 11 motion. But although Plaintiff has responded

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to that motion and has filed its own motion for a preliminary injunction, Plaintiff has still

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said nothing about Defendant’s motion to dismiss.

The only motion which appears to have attracted

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Plaintiff will not be allowed to continue to abuse the litigation process. If Plaintiff

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wishes to pursue this lawsuit, it must do so in good faith. Plaintiff claims that it has put

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its documentary house in order and “taken any and all action necessary to withstand the

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global defensive attack anticipated by Defendants.” (Doc. 26 ¶ 8.) Therefore, before any

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further proceedings in this case, Plaintiff must produce to Defendant the discovery

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compelled by Judge Voss. Plaintiff must also pay the discovery sanction ordered by

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Judge Voss.

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For these reasons, Plaintiff’s motion for a preliminary injunction will be denied. If

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Plaintiff required nearly three years to put its case together, Defendant is entitled to a

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reasonable amount of preliminary discovery in response.

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This order shall be deemed an order compelling discovery under Fed. R. Civ. P.

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37. Failure to comply will result in dismissal with prejudice as authorized by Fed. R.

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Civ. P. 37(b)(2)(A)(v).

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IT IS THEREFORE ORDERED that Defendant’s “Motion to Dismiss First

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Amended Complaint” (Doc. 27) and Defendant’s “Motion for Sanctions Pursuant to Rule

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11, Fed.R.Civ.P.” (Doc. 28) are DENIED

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IT IS FURTHER ORDERED that “Plaintiff’s Motion for a Preliminary Injunction

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and Request for Hearing” (Doc. 30) is DENIED without prejudice to renewing the

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motion following sufficient discovery.
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IT IS FURTHER ORDERED that, on or before November 30, 2011, Plaintiff

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shall: (i) comply with Judge Voss’s order compelling discovery (CV07-0754, Doc. 38)

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except that Heidi Hake need not yet submit to another deposition (see id. at 2:22–23); and

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(ii) file a statement with this Court certifying such compliance.

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IT IS FURTHER ORDERED that, on or before November 16, 2011, Plaintiff

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shall: (i) comply with Judge Voss’s order requiring payment to Defendant of $4,270.04

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(CV07-0754, Doc. 44); and (ii) file a statement with this Court certifying such payment.

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Dated this 26th day of October, 2011.

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