VMAS Solutions LLC v. MMJ Labs LLC

Filing 27

ORDER re 18 Motion to Strike. The motion at docket 18 is granted in part and denied in part as follows: Paragraphs four through seven of the Declaration of Jeffrey P. Thennisch at docket 14-1 are stricken. In all other respects, the motion is denied. Signed by Judge John W Sedwick on 4/18/17. (JWS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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VMAS Solutions, LLC,

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Plaintiff,
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MMJ Labs, LLC,

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Defendant.

2:17-cv-00534 JWS
ORDER AND OPINION
[Re: Motion at Docket 18]

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I. MOTION PRESENTED
At docket 14 plaintiff VMAS Solutions, LLC (“VMAS”) filed a reply in support of its

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motion for a preliminary injunction. Attached to the reply is the supplemental

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declaration of Vicki Mayo (“Mayo”) (including two exhibits); the declaration of Jeffrey P.

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Thennisch (“Thennisch”) (including two exhibits); and the declaration of Marc C.

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Sanchez (“Sanchez”) (including one exhibit). At docket 18 defendant MMJ Labs, LLC

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(“MMJ”) moves to strike all of these attachments or, alternatively, for leave to file a sur-

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response,1 because the attachments are new evidence submitted for the first time in the

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reply. VMAS responds at docket 23.

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II. STANDARD OF REVIEW
“Where new evidence is presented in a reply, the district [court] should either not
consider the new evidence, or not consider it without giving the other party the

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MMJ styled this filing as a sur-reply but a sur-reply is filed by the moving party. MMJ’s
proposed filing is a sur-response.

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opportunity to respond.”2 “However, where evidence is ‘submitted in direct response to

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proof adduced in opposition to a motion’ it is not ‘new.’”3

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III. DISCUSSION
A.

The Supplemental Mayo Declaration
In Mayo’s initial declaration at docket 8-1, Mayo asserts that MMJ’s claim of

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trademark infringement is causing VMAS to suffer irreparable harm, including a decline

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in web traffic to its fundraising page on Kickstarter.com and decline in sales. 4 In

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response, MMJ asserts that VMAS “cannot show that it is likely to suffer irreparable

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harm.”5 Mayo’s supplemental declaration contains two exhibits. According to Mayo,

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the first exhibit is a “Google analytics summary demonstrating an 86% decline in

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Kickstarter traffic and a 75% reduction in Kickstarter sales in the month immediately

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following MMJ’s false and disparaging claim of infringement.”6 Mayo states that the

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second exhibit is “an e-mail from a Kickstarter investor inquiry about the negative legal

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notice issued by Kickstarter to all VMAS investors in response to MMJ’s false claim of

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infringement.”7 Paragraphs five through seven of Mayo’s supplemental declaration also

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address the issue of harm, and paragraph eight denies various allegations made by

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Dr. Amy Baxter (“Baxter”) in her declaration at docket 12-1.

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Zkey Investments, LLC v. Facebook Inc., No. CV 16-00782-RSWL-KS, 2016 WL
7046593, at *8 (C.D. Cal. Dec. 2, 2016) (citing Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir.
1996)).
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Id. (quoting Edwards v. Toys "R" Us, 527 F. Supp. 2d 1197, 1205 n.31 (C.D.
Cal. 2007)).
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Doc. 8-1 at 6–7.

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Doc. 12 at 2–3.
Doc. 14-1 at 3 ¶ 3.
Id. ¶ 4.

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The supplemental Mayo declaration is not new evidence because it is directly

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responsive to MMJ’s opposition. The court will deny MMJ’s motion with regard to this

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declaration.

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B.

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The Thennisch Declaration
Thennisch is an attorney who represents VMAS in connection with its trademark

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filings before the U.S. Patent & Trademark Office (“PTO”). Baxter’s declaration states

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that the FDA, “over multiple telephone conversations, provided instructions and advice

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to MMJ Labs regarding the facility registration process in 2008, which led to the

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determination that because both cold packs and therapeutic m assagers, the main

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components of the BUZZY device, did not need 510(k) approval, the BUZZY device

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was exempt from the FDA’s premarket notification requirements.”8 VMAS argues that

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the Thennisch declaration is not new evidence because it rebuts Baxter’s assertion that

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“the FDA verbally issued some type of administrative determination that the MMJ

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device was exempt from Section 510(k) premarket clearance via the FDA’s toll free

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help-line.”9

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The court finds that paragraphs eight through twelve of the Thennisch

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declaration are not new evidence because they are directly responsive to Baxter’s

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declaration for the reasons stated in VMAS’ opposition. The remainder of Thennisch’s

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declaration, however, is new evidence because it is not responsive to MMJ’s opposition.

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Paragraphs four through seven of the Thennisch declaration will be stricken.

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C.

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The Sanchez Declaration
Sanchez states that he is an attorney who specializes in regulatory matters

involving the FDA, an adjunct professor at Northeastern University School of Law, and

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Doc. 12-1 at 4 ¶ 16.
Doc. 23 at 5.

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an FDA regulatory consultant. Sanchez’s declaration includes his “observations and

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findings” regarding MMJ’s opposition and Baxter’s declaration.10

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The Sanchez declaration is directly responsive to evidence and arguments

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raised in MMJ’s opposition. The court will deny MMJ’s motion with regard to this

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declaration.

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IV. CONCLUSION
Based on the preceding discussion, the motion at docket 18 is granted in part

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and denied in part as follows. Paragraphs four through seven of the Declaration of

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Jeffrey P. Thennisch at docket 14-1 are stricken. In all other respects, the m otion is

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denied.
DATED this 18th day of April 2017.

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/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT

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Doc. 14-1 at 24 ¶ 4.

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