Stay Frosty Enterprises LLC v. Teespring, Inc.
Filing
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ORDER by Chief Judge Richard Seeborg Granting 153 Motion for Partial Summary Judgment. (clS, COURT STAFF) (Filed on 2/17/2021)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
Northern District of California
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STAY FROSTY ENTERPRISES LLC,
Plaintiff,
v.
TEESPRING, INC.,
ORDER GRANTING MOTION FOR
PARTIAL SUMMARY JUDGMENT
Defendant.
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Case No. 19-cv-04607-RS
Plaintiff Stay Frosty Enterprises, LLC (“Frosty”) owns a copyright portfolio including
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military-themed artwork and images; defendant Teespring, Inc. (“Teespring”) operates a website
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allowing individuals to create custom t-shirts and apparel. Since 2018, Frosty has asserted its right
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to “actual damages” resulting from Teespring’s alleged infringement of its portfolio. See
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Complaint, Dkt. 1 at 87. Yet Frosty has not produced, despite Teespring’s repeated prompting, any
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evidence of having incurred those damages. With fact discovery now closed, Teespring
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accordingly moves for partial summary judgment establishing Frosty cannot recover actual
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damages that, apparently, do not exist. Considering the record as a whole, such judgment is plainly
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warranted.
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Over the course of fact discovery, Teespring asked Frosty for facts supporting its damages
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claim, including “the total annual revenue and . . . profits that [Frosty] earned from the asserted
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copyrights” in recent years, and “documents concerning any damages or harm, including without
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limitation money damage, [Frosty] claims to have suffered” on Teespring’s account.
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Interrogatories, Dkt. 153-2 at 6; Request for Production, Dkt. 153-3 at 7. Going off Frosty’s
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representation that it needed more time to answer these requests, Teespring twice agreed to extend
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Frosty’s response deadline. When it became clear, after these extensions, that no responses were
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forthcoming, Teespring brought a motion to compel. The motion was denied on the purely
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procedural ground of untimeliness. See generally Discovery Order, Dkt. 150 (declining to compel
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Frosty’s response pursuant to Civil Local Rule 37-3’s prohibition of “motions to compel fact
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discovery . . . more than 7 days after the fact discovery cut-off”). With an eye toward summary
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judgment, Teespring declined to appeal: in its view, the facts (or lack thereof) were sufficiently
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favorable as Frosty had left them.
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Bewilderingly, Frosty—in opposing this motion—has not made the damages issue one iota
less favorable to Teespring. Across both briefing and oral argument, Frosty has not, for instance,
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United States District Court
Northern District of California
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identified any fact indicating actual damages; alluded to an evidentiary universe that might contain
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that sort of fact; or made so much as a single, conclusory assertion that it has suffered actual
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damages. Instead, Frosty invokes Rule 56(d), which authorizes deferred consideration of a motion
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for summary judgment if “[the] nonmovant shows by affidavit or declaration that, for specified
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reasons, it cannot present facts essential to justify its opposition[.]” Fed. R. Civ. P. 56(d).
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To “delay summary judgment” under Rule 56(d), a party “must state what other specific
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evidence it hopes to discover and the relevance of that evidence to its claims.” Stevens v.
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Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018) (emphasis in original) (internal quotation
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marks, bracketing, and citation omitted). Frosty ignores this standard entirely. Rather than hinting
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at, let alone specifying, “facts essential to . . . its opposition” that might be gleaned from renewed
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discovery, Frosty trots out a general proposition: that because “the case is still in the early stages,”
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and “[v]ery few trials are being conducted in . . . this district” at the moment, “no prejudice” will
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flow “to Teespring . . . should . . . deferral of consideration of the motion be allowed.” See
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generally Opp’n Brief, Dkt. 154 at 4-5 (advancing this position while omitting mention of a single
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sought-after fact).
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Whatever its merit, this argument misses (or, more likely, hopes to misdirect from) the
point. Because Frosty’s Rule 56(d) request is unaccompanied by anything remotely resembling a
ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
CASE NO. 19-cv-04607-RS
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Rule 56(d) showing, the request is denied. The record thus remains as Teespring presents it—
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utterly and indisputably bereft of evidence, prospective or otherwise, going to actual damages.
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Against this backdrop, Teespring’s motion for partial summary judgment that Frosty is not entitled
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to any such damages must be, and is, granted.1 Corelogic, 899 F.3d at 678 (emphasis in original)
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(internal quotation marks and citation omitted).
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IT IS SO ORDERED.
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Dated: February 17, 2021
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RICHARD SEEBORG
Chief United States District Judge
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United States District Court
Northern District of California
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Beyond stressing the record’s absence of damages evidence generally, Teespring contends Frosty
is obliged, as a matter of law, to produce particular types of damages evidence—namely,
percipient and expert witness testimony. See generally Motion, Dkt. 153 at 10-14. Given the more
fundamental defect in Frosty’s case, there is no need to reach this additional argument.
ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
CASE NO. 19-cv-04607-RS
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