Zynga Inc. v. Playerauctions.com

Filing 13

JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of trial 3-5 Court Days, filed by Plaintiff Zynga Game Network Inc... (Caplan, David)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 Dennis Wilson (Bar No. 155407) E-Mail: dwilson@kmwlaw.com David K. Caplan (Bar No. 181174) E-Mail: dcaplan@kmwlaw.com Tara D. Rose (Bar No. 256079) E-Mail: trose@kmwlaw.com KEATS McFARLAND & WILSON LLP 9720 Wilshire Boulevard Penthouse Suite Beverly Hills, California 90212 Telephone: (310) 248-3830 Facsimile: (310) 860-0363 Attorneys for Plaintiff ZYNGA GAME NETWORK INC. Brian H. Newman (Bar No. 205373) E-Mail: bnewman@dykema.com DYKEMA GOSSETT PLLC 333 South Grand Avenue Suite 2100 Los Angeles, California 90071 Telephone: (213) 457-1800 Facsimile: (213) 457-1850 Attorneys for Defendant PLAYER AUCTIONS, LLC 15 16 UNITED STATES DISTRICT COURT 17 CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 18 19 20 21 ZYNGA GAME NETWORK INC., a Delaware Corporation, Plaintiff, 22 23 24 25 26 v. PLAYER AUCTIONS, LLC, a limited liability company, Defendant. CASE NO. CV 10-2576 CBM (JCx) JOINT SCHEDULING CONFERENCE REPORT AND DISCOVERY PLAN PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 26(f) Date: December 6, 2010 Time: 11:00 a.m. Ctrm: 2 27 28 CASE NO. CV 10-2576 CBM (JCx) JOINT SCHEDULING CONFERENCE REPORT AND DISCOVERY PLAN PURSUANT TO FRCP 26(f) 1 Pursuant to Federal Rule of Civil Procedure 26(f) and this Court’s Order Setting 2 the Scheduling Conference, Plaintiff Zynga Game Network Inc. (“Zynga” or 3 “Plaintiff”) and Player Auctions, LLC (“Player Auctions” or “Defendant”) hereby 4 provide their Joint Scheduling Conference Report, in response to this Court’s 5 Standing Order dated April 9, 2010, and Minute Order of September 30, 2010. 6 I. APRIL 9, 2010 STANDING ORDER 7 a. Factual Summary of the Case. 8 9 i. Plaintiff’s Statement On April 18, 2010, Plaintiff filed its Complaint against PlayerAuctions.com. 10 On September 8, 2010, Plaintiff filed its First Amended Complaint to name the proper 11 plaintiff, Player Auctions. 12 Zynga is the largest social gaming company, providing, inter alia, online 13 games, including but not limited to Zynga Poker, Mafia Wars, FarmVille and YoVille 14 (the “Games”). Zynga owns United States Federal Trademark Registrations for 15 ZYNGA and YOVILLE, and applications for MAFIA WARS and FARMVILLE (the 16 “Marks”). Zynga also owns registrations with the United States Copyright Office for 17 its Zynga Poker, Mafia Wars and FarmVille games. 18 When users sign up with Zynga to play the Games, they receive a certain 19 amount of “Virtual Currency,” including, but not limited to, chips, coins, cash and/or 20 points that they use to compete in the Games with other players. Among other things, 21 the Terms of Service that govern users’ play of the Games prohibit users from selling 22 “Virtual Currency” or “Virtual Goods” for real-world money or otherwise exchanging 23 “Virtual Currency” or “Virtual Goods” for anything of value outside the Games. 24 Zynga alleges that Player Auctions allows sellers to post and “sell” “Virtual 25 Currency” or “Virtual Goods” that users can use to compete with other players who 26 obtained their “Virtual Currency” or “Virtual Goods” directly from Zynga, in 27 violation of the Games’ Terms of Service. Zynga also alleges that Player Auctions 28 CASE NO. CV 10-2576 CBM (JCx) - 1 - JOINT SCHEDULING CONFERENCE REPORT AND DISCOVERY PLAN PURSUANT TO FRCP 26(f) 1 uses the Marks and copyrighted images from the Games to advertise and sell “Virtual 2 Currency” or “Virtual Goods” without authorization from Zynga. Based on Player 3 Auctions’s acts as alleged in the First Amended Complaint, Zynga asserts claims for 4 direct, contributory, and vicarious copyright infringement in violation of the United 5 States Copyright Act, 17 U.S.C. § 501; violation of the federal Lanham Act, 15 U.S.C. 6 §§ 1125(a); violation of the California statutory law of unfair competition, Cal. Bus. 7 & Prof. Code § 17200; California common law trademark infringement, passing off 8 and unfair competition; and for intentional interference with contractual relations. 9 10 ii. Defendant’s Statement Player Auctions denies that it has infringed any copyright rights, trademark 11 rights, or other rights belonging to Plaintiff. Player Auctions provides a legal online 12 marketplace for buyers and sellers of “Virtual Currency” and “Virtual Goods.” Player 13 Auctions does not take possession of any “Virtual Currency” and “Virtual Goods”; 14 rather it merely connects buyers with sellers who complete the transfer of between and 15 among themselves. Player Auctions does not use utilize any of Plaintiff’s alleged 16 copyrighted or trademarked material in connection with its online marketplace. Player 17 Auctions is not a party to any contract with Plaintiff, and is not bound by the terms 18 and conditions imposed by Plaintiff on users of its games. 19 20 b. The Basis for the Court’s Subject-Matter Jurisdiction. This action arises under the copyright laws of the United States, 17 U.S.C. § 21 101, et seq., the trademark laws of the United States, 15 U.S.C. § 1051, et seq., 22 particularly under 15 U.S.C. §§ 1125(a); state unfair competition law; the common 23 law of trademark infringement, passing off and unfair competition; and the common 24 law of intentional interference with contractual relations. This Court has jurisdiction 25 of the federal claims under 28 U.S.C. §§ 1331 and 1338, and 15 U.S.C. §§ 1116, 26 1121, and 1125. This Court has supplemental jurisdiction of the state unfair 27 competition claims under 28 U.S.C. § 1338(b), those claims being joined with a 28 CASE NO. CV 10-2576 CBM (JCx) - 2 - JOINT SCHEDULING CONFERENCE REPORT AND DISCOVERY PLAN PURSUANT TO FRCP 26(f) 1 substantial and related claim under the Trademark Laws of the United States, and 2 supplemental jurisdiction of all of the state law claims under 28 U.S.C. § 1367(a), 3 those claims being so related to the federal claims that they form part of the same case 4 or controversy and derive from a common nucleus of operative fact. 5 c. Key Legal Issues 6 The key legal issues in this case are (1) whether Defendant used, in support of 7 its advertisement and sale of “Virtual Currency” and “Virtual Goods”, images which 8 are substantially similar to Plaintiff’s copyrighted images, (2) whether consumers are 9 likely to be confused by Defendant’s products and advertising, (3) whether Defendant 10 breached the Games’ Terms of Service, (4) whether Defendant’s conduct was willful, 11 and (5) whether Plaintiff has the right to exclusively control the purchase and sale of 12 “Virtual Currency” and “Virtual Goods” in connection with its games, and preclude 13 any competitors, such as Player Auctions. 14 d. Probable Damages 15 Plaintiffs are entitled to recover Defendant’s profits derived from its unlawful 16 infringement of the Zynga Poker, Mafia Wars and FarmVille copyrighted works; or 17 (ii) statutory damages for each act of infringement in an amount provided by law, as 18 set forth in 17 U.S.C. § 504, at Plaintiff’s election before the entry of a final judgment, 19 together with prejudgment and post-judgment interest. At this stage of the 20 proceedings, Plaintiff is not aware of the level of profits at issue. There are at least 21 three copyrighted works at issue here – Zynga Poker, Mafia Wars and FarmVille. 22 Statutory damages for three infringements would range from $2,250 to $90,000 for 23 non-willful infringement, and up to $450,000 for willful infringement. 17 U.S.C. § 24 504. 25 26 Plaintiffs are also entitled to recover their reasonable attorneys’ fees if they are the prevailing parties. 17 U.S.C. § 505. 27 28 CASE NO. CV 10-2576 CBM (JCx) - 3 - JOINT SCHEDULING CONFERENCE REPORT AND DISCOVERY PLAN PURSUANT TO FRCP 26(f) 1 Plaintiffs are also entitled to recover the Defendant’s profits under the Lanham 2 Act. 15 U.S.C. § 1117. Actual profits may be enhanced under the Lanham Act, up to 3 trebled profits. 15 U.S.C. § 1117(a)-(b). 4 5 Player Auctions denies liability, and denies that Plaintiff has suffered any damages whatsoever as a result of Player Auction’s conduct. 6 7 8 9 10 e. Additional Parties The parties do not anticipate adding any additional parties at this time, but may seek to add additional parties as discovery proceeds. The parties propose a cut-off date to join other parties and to amend pleadings of March 7, 2011. 11 f. Whether All or Part of the Procedures of the Manual for Complex 12 13 14 Litigation Should be Utilized The parties do not believe that this is a complex case warranting use of the procedures of the Manual For Complex Litigation. 15 16 g. Proposed Discovery Cut-Off Date The parties recognize that this cut-off date would be the final day for 17 completion of discovery, including resolution of all discovery motions. The parties 18 propose June 6, 2011 as the last day to complete discovery of all fact witnesses. The 19 parties also propose July 6, 2011 as the last day to submit FRCP 26(a)(2) 20 identification of experts and expert reports; August 5, 2011 as the last day to submit 21 expert rebuttal reports, if any; and August 31, 2011 as the last day to depose experts. 22 h. What Motions (other than discovery motions) are Contemplated 23 There are no prior or pending motions in this action. 24 The parties anticipate that summary judgment or summary adjudication motions 25 will be filed after the close of discovery. 26 The parties propose a motion filing cut-off date of July 25, 2011. 27 // 28 CASE NO. CV 10-2576 CBM (JCx) - 4 - JOINT SCHEDULING CONFERENCE REPORT AND DISCOVERY PLAN PURSUANT TO FRCP 26(f) 1 2 i. Prospects of Settlement The parties believe that there is a reasonable prospect of settlement between 3 Plaintiff and the Defendant. The parties have discussed some parameters of a 4 settlement, and the discussions are ongoing. 5 6 7 8 9 10 11 12 13 14 The parties propose Settlement Procedure No. 3 under Local Rule 16-15. j. Court or Jury Trial This is a Jury Trial case. Plaintiff demanded Jury Trial in the Complaint, filed on April 18, 2010 and the First Amended Complaint filed on September 8, 2010. k. The Estimated Length of Trial. The parties estimate three to five court days. l. The Name of the Attorney(s) Who Will Try the Case. For Plaintiff, Dennis L. Wilson and David Caplan, of Keats McFarland & Wilson LLP. For Defendant, Brian H. Newman, of Dykema Gossett PLLC. m. Prospects of Counsel Exercising Their Right, under 28 U.S.C. § 636, 15 to Consent to the Designation of a Magistrate Judge to Conduct All 16 Proceedings (including trial) and Final Disposition, pursuant to 17 General Order 05-07 (also referenced as General Order 194) 18 19 20 21 The parties will not consent to the designation of a Magistrate Judge to conduct all proceedings. II. SEPTEMBER 30, 2010 MINUTE ORDER a. Description of the Case 22 See Section I. a. above. 23 b. Depositions 24 The parties have not noticed any depositions to date. The parties anticipate 25 taking approximately five (5) depositions each, but in no event more than ten (10) 26 depositions per side. 27 28 CASE NO. CV 10-2576 CBM (JCx) - 5 - JOINT SCHEDULING CONFERENCE REPORT AND DISCOVERY PLAN PURSUANT TO FRCP 26(f) 1 2 Plaintiff anticipates noticing its Rule 30(b)(6) deposition on Player Auctions for late January, 2011. 3 4 Player Auctions anticipates noticing its Rule 30(b)(6) deposition on Plaintiff for January or February 2011. 5 c. Written Discovery 6 The parties have not served any discovery to date. 7 The parties anticipate serving discovery before the end of November or in early 8 December, with responses due thirty (30) days thereafter. 9 d. Experts 10 11 The parties anticipate that they will each call two expert witnesses on the issues of likelihood of confusion and online game business. 12 e. Proposed Pre Trial Conference Date 13 Based on the proposed fact discovery cut-off of June 6, 2011 and cut-off to 14 submit FRCP 26(a)(2) identification of experts and expert reports of July 6, 2011 , the 15 parties propose a Pre-Trial Conference Date of September 26, 2011. The parties 16 chose this date to accommodate the required pre-filing conference under Local Rule 7- 17 3, the 28 day motion period provided by L.R. 7, then time for the Court to rule on any 18 filed summary judgment motions, and time for the parties to prepare and file the 19 required Pre-Trial papers. 20 f. Date Demand for Jury Trial Was Filed 21 On April 18, 2010, Plaintiff filed its Complaint with a demand that the case be 22 tried to a jury. On September 8, 2010, Plaintiff filed its First Amended Complaint 23 with a demand that the case be tried to a jury. 24 g. Prospects of Settlement 25 See Section I. i. above. 26 // 27 // 28 CASE NO. CV 10-2576 CBM (JCx) - 6 - JOINT SCHEDULING CONFERENCE REPORT AND DISCOVERY PLAN PURSUANT TO FRCP 26(f) 1 h. Position of Counsel Regarding Consent to Proceed Before a 2 Magistrate Judge 3 See Section I. m. above. 4 i. Contemplated Motions 5 6 See Section I. h. above. III. 7 a. Evidence Preservation [FRCP 26(f)(2)] 8 9 10 The parties have taken reasonable steps to preserve documents relating to the issues presented in the First Amended Complaint based on their current understanding of the issues. 11 b. Initial Disclosures [Rule 26(f)(3)(A)] 12 13 The parties agree that no changes should be made in the timing, form, or requirement for disclosures under Rule 26(a). 14 15 16 FEDERAL RULES OF CIVIL PROCEDURE 26(F) ISSUES The parties agree to exchange initial disclosures on or before November 29, 2010. c. Subjects on Which Discovery May be Needed and 17 Whether Discovery Should be Conducted in Phases or 18 Limited on Particular Issues [Rule 26 (f)(3)(B)] 19 Plaintiff anticipates serving discovery on the claims in Zynga’s First Amended 20 Complaint, Player Auction’s Answer and affirmative defense, and the parties’ 21 respective prayers for relief. 22 Defendant anticipates on serving discovery regarding the terms and conditions 23 imposed by Plaintiff on its users, the alleged “confusion” caused by Player Auctions, 24 and Plaintiff’s policy of monopolizing the purchase and sale of “Virtual Currency” 25 and “Virtual Goods” in connection with its games. 26 27 As indicated in section I. g. above, the parties propose that discovery be conducted in phases, with June 6, 2011 as the last day to complete discovery of all fact 28 CASE NO. CV 10-2576 CBM (JCx) - 7 - JOINT SCHEDULING CONFERENCE REPORT AND DISCOVERY PLAN PURSUANT TO FRCP 26(f) 1 witnesses; July 6, 2011 as the last day to submit FRCP 26(a)(2) identification of 2 experts and expert reports; August 5, 2011 as the last day to submit expert rebuttal 3 reports, if any; and August 31, 2011 as the last day to depose experts. 4 d. Electronic Discovery [Rule 26(f)(3)(C)] 5 The parties have not raised any issues relating to disclosure or discovery of 6 electronically stored information, including the form or forms in which it should be 7 produced. 8 e. Privilege [Rule 26(f)(3)(D)] 9 The parties expect to submit a stipulated protective order with respect to any 10 confidential information that should be protected from public disclosure, including 11 procedures to assert claims for privilege after production. 12 f. Limitations on Discovery [Rule 26(f)(3)(E)] 13 The parties agree that no changes should be made to the limitations on 14 discovery imposed under these rules or by local rule, and that no other limitations 15 should be imposed. 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 CASE NO. CV 10-2576 CBM (JCx) - 8 - JOINT SCHEDULING CONFERENCE REPORT AND DISCOVERY PLAN PURSUANT TO FRCP 26(f) 1 2 g. Other Orders [Rule 26(f)(3)(F)] Other than the possibility of requesting the entry of a stipulated protective order 3 regarding confidential information that should be protected from public disclosure 4 under FRCP 26(c), the parties do not presently anticipate requesting any other orders 5 that should be entered by the court under Rule 26(c) or under Rule 16(b) and (c). 6 7 8 Dated: November 23, 2010 9 KEATS McFARLAND & WILSON LLP By: 10 11 /s/ David K. Caplan David K. Caplan Attorneys for Plaintiff ZYNGA GAME NETWORK INC. 12 13 DYKEMA GOSSETT Dated: November 23, 2010 14 15 16 By: /s/ Brian H. Newman Brian H. Newman Attorneys for Defendant PLAYER AUCTIONS. LLC 17 18 19 20 21 SIGNATURE ATTESTATION: I hereby attest that I have authorization on file for any signatures indicated by a conformed signature within this e-filed document. /s/ David K. Caplan David K. Caplan 22 23 24 25 26 27 28 CASE NO. CV 10-2576 CBM (JCx) - 9 - JOINT SCHEDULING CONFERENCE REPORT AND DISCOVERY PLAN PURSUANT TO FRCP 26(f)

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