Morton & Bassett, LLC-V-Organic Spices Inc

Filing 139

ORDER REGARDING BIFURCATION OF TRIAL AND DIRECTING PARTIES TO FILE A STIPULATION; ORDER SETTING CASE MANAGEMENT CONFERENCE. Further Case Management Conference set for 8/8/2017 10:00 AM. Signed by Judge Haywood S. Gilliam, Jr. on 7/17/2017. (ndrS, COURT STAFF) (Filed on 7/17/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MORTON & BASSETT, LLC,
Plaintiff,

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United States District Court
Northern District of California

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v.
ORGANIC SPICES, INC.,

Case No. 15-cv-01849-HSG
ORDER REGARDING BIFURCATION
OF TRIAL AND DIRECTING PARTIES
TO FILE A STIPULATION; ORDER
SETTING CASE MANAGEMENT
CONFERENCE

Defendant.
This trade dress infringement action is set for trial to begin on September 25, 2017. Dkt.

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No. 129. “For convenience, to avoid prejudice, or to expedite and economize, the court may order

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a separate trial of one or more separate issues . . . .” Fed. R. Civ. P. 42(b). There appear to have

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been four versions of the spice bottle packaging of Defendant Organic Spices, Inc. (“Spicely”).

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See, e.g., Dkt. No. 102 at 1–2 (discussing four versions). The most substantial change in spice

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bottle packaging appears to have occurred between Versions 1 and 2, which feature horizontally

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oriented packaging, and Versions 3 and 4, which feature vertically oriented packaging. See Dkt.

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No. 102-3 at 11 (photo of Versions 1 and 2); Dkt. No. 102-2 at 3–5 (photos of Version 3); Dkt.

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No. 102 at 3 (stating that Version 4 “add[ed] green color to the vertical label design from Version

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3”). The Court believes that trial will be simplified and expedited by proceeding first with the

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liability phase as to Versions 1 and 2 only, which analytically seem to be Spicely’s most important

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spice bottle packaging in this suit. Proceeding first with these two versions will also obviate the

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need to litigate in this trial the complicated questions of how to treat Versions 3 and 4 and whether

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to include the extensive settlement negotiations between the parties relating to the changes

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reflected in those versions.

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As stated at the pretrial conference, the parties still have not adequately framed this case

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for trial. See, e.g., Dkt. No. 138 at 4:6–7 (“You saw that I issued an order moving the trial date,

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and that’s because in my review of the papers, it just became abundantly clear the case in not trial

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ready.”). Among other things, the Court pointed out the considerable complications and risk of

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jury confusion that could result from trying multiple visually distinct versions at once:

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THE COURT: . . . [L]et me ask this, and this I think . . . just goes
to the complicated nature of the case right now: Could the jury find
infringement as to one version but not another?
MR. AREVIAN: I think they could.
MR. ANDRIS: Sure.
THE COURT: So how is that going to be presented? As a special
interrogatory in the verdict form? . . . How is that going to be teed
up for [the jury]?
MR. ANDRIS: It’s a good question. . . .
[. . .]
MR. AREVIAN: Perhaps we could confer and -THE COURT: I think you should, ‘cause that really [is] the heart of
the . . . matter, right? . . . I think that is a question that the parties
should consider . . . is it a jar-by-jar finding that the jury’s being
asked to make? And if so, how do we structure that?

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United States District Court
Northern District of California

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Id. at 46:15–46:11. In the month since the pretrial conference, the parties have filed nothing

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indicating any sort of progress in addressing this issue or the many other concerns raised by the

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Court at the pretrial conference.
Accordingly, the Court intends to bifurcate the liability phase of the trial, proceeding first

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only as to Versions 1 and 2 of Spicely’s spice bottle packaging. Any party that opposes this

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proposition may file a statement not exceeding five pages by July 20, 2017 setting out its position

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for the record.
In addition, the Court finds that the administration of trial will be improved by clearly

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defining each version of Spicely’s spice bottle packaging. The Court orders the parties to meet

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and confer and to file a stipulation attaching four exhibits: Exhibit A shall contain one or more

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representative color photographs of Version 1, Exhibit B shall contain one or more representative

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color photographs of Version 2, Exhibit C shall contain one or more representative color

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photographs of Version 3, and Exhibit D shall contain one or more representative color

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photographs of Version 4.

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The parties are ORDERED to appear at a further case management conference on August

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8, 2017 at 10:00 a.m. to discuss the steps necessary to implement this order, including the setting

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of shorter trial time limits and the setting of deadlines for updated pretrial filings.

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IT IS SO ORDERED.
Dated: 7/17/2017
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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