Blizzard Entertainment, Inc. et al v. Lilith Games (Shanghai) Co. Ltd. et al

Filing 211

ORDER DENYING PLAINTIFFS' MOTION TO COMPEL re: 208 . Signed by Magistrate Judge Jacqueline Scott Corley on 11/14/2017. (ahm, COURT STAFF) (Filed on 11/14/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BLIZZARD ENTERTAINMENT, INC., ET
AL.,

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United States District Court
Northern District of California

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Plaintiffs,
v.

Case No.15-cv-04084-CRB (JSC)
ORDER DENYING PLAINTIFFS’
MOTION TO COMPEL
Re: Dkt. No. 208

LILITH GAMES (SHANGHAI) CO. LTD.,
et al.,
Defendants.
Plaintiffs seek to compel Lilith to produce documents and answer interrogatories about its

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“Soul Hunters” game. After reviewing the parties’ Joint Discovery Letter Brief (Dkt. No. 208),

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the Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), and DENIES

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Plaintiffs’ motion.

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Lilith opposes production on the grounds that Plaintiffs have not adequately alleged that

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Soul Hunters infringes Plaintiffs’ copyrights. Plaintiffs contend the first amended complaint,

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paragraphs 9 and 32, accuse Soul Hunters. Paragraph 9, in the section entitled “The Parties,”

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describes the games Lilith makes, including its popular mobile game known as, among other

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names, Dota Legends. It then adds: “In addition, Plaintiffs are informed and believe, and on that

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basis allege, that on or about June 25, 2015, Lilith released in the United States another version of

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Dota Legends titled ‘Soul Hunters.’ Soul Hunters is available, among other places, on the Apple

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App Store and Google Play platform.” (Dkt. No. 36 ¶ 9.) Paragraph 32, in the section entitled

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“Defendants and the Infringing Games, describes “Dot Arena” and states that “Dot Arena is

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substantively identical to Dota Legends.” It does not allege that Soul Hunters is substantively

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identical to Dota Legends or Dota Arena, but does state “Dota Legends, Dot Arena, and all other

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versions and permutations of Dota Legends, are referred to collectively as the ‘Lilith Games.’”

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((Dkt. No. 36 ¶ 32.) Exhibits A through D to the First Amended Complaint include examples of

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infringement and none include a reference to Soul Hunters.

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The Court agrees that the First Amended Complaint does not accuse Soul Hunters of

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infringement. The amended complaint never states that Soul Hunters--the “other version” of Dota

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Legends-- is substantially similar to Dota Legends and the complaint exhibits certainly do not do

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so. Plaintiffs, however, correctly emphasize that the Second Amended Complaint, which was

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filed by stipulation on November 3, 2017 and then corrected on November 8, 2017, does accuse

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Soul Hunters of infringement. (Dkt. Nos. 207, 210.) Nonetheless, Lilith represents that it intends

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to file a motion to dismiss the Soul Hunters allegations “within days.” As of the date of this Order

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United States District Court
Northern District of California

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it has not done so.
Because the Second Amended Complaint accuses Soul Hunters, and because discovery has

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been open for some time, the Court would normally grant the motion to compel. The Court

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observes, however, that Lilith was not required to stipulate to the filing of the Second Amended

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Complaint; instead, it could have insisted that Plaintiffs file a motion to amend and then have

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opposed the motion on futility grounds. If it had done so, the Second Amended Complaint would

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not yet have been filed and the Court would have denied the motion to compel until the Soul

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Hunters allegations were made a part of the action. The courts in this district prefer that the

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parties do what was done here: stipulate to the filing of the amended complaint and then move to

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dismiss. If the Court compels discovery here in this procedural posture, it will discourage

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defendants from stipulating to the amendment of complaints in the future. Such discouragement is

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not a good outcome. Further, if Plaintiffs had accused Soul Hunters upon the filing of the original

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complaint, in all likelihood Lilith would have had the opportunity to challenge the allegations

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before having to produce discovery. Denying discovery of Soul Hunters until the motion to

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dismiss is decided merely preserves that opportunity. Further, as there is no fact discovery

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deadline, Plaintiffs are not prejudiced by this delay.

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Accordingly, the motion to compel is DENIED provided Lilith files its motion to dismiss

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the claims against it arising from the Soul Hunters allegations on or before Friday, November 17,

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2017. If no such motion to dismiss is filed by that date, Lilith shall produce the requested
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discovery on or before December 8, 2017.
IT IS SO ORDERED.
Dated: November 14, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
Northern District of California

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