Cellspin Soft, Inc. v. Fossil Group, Inc. et al

Filing 133

ORDER by Judge Kandis A. Westmore granting 122 , 123 , 127 , 128 , 129 Ex Parte Application for judgment-debtor examination. Judgment Debtor Exam set for 5/16/2019 01:30 PM in Oakland, Courtroom 4, 3rd Floor. (kawlc1, COURT STAFF) (Filed on 4/25/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CELLSPIN SOFT, INC.,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 4:17-cv-05933-YGR (KAW)
ORDER GRANTING DEFENDANTS'
EX PARTE APPLICATION FOR A
DEBTOR'S EXAMINATION

v.

Re: Dkt. Nos. 122, 123, 127, 128, 129

FOSSIL GROUP, INC., et al.,
Defendants.

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I.

BACKGROUND

On November 21, 2018, the Court granted Defendants Fossil Group, Inc. and Misfit Inc.’s

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ex parte application for a debtor’s examination, and set the judgment-debtor examination of

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Plaintiff Cellspin Soft, Inc. for February 21, 2019. (11/21/18 Order, Dkt. No. 119.) On February

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21, 2019, the parties appeared, but they did not hire a court reporter, so the examination did not go

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forward. (Minute Entry, Dkt. No. 121.)

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On March 4, 2019, Defendants filed a renewed ex parte application. (Dkt. Nos. 122 &

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123.) On March 15, 2019, Plaintiff filed an opposition, in which it raised essentially the same

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unsuccessful arguments that it had raised previously. (Pl.’s Opp’n, Dkt. No. 124.) On March 21,

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2019, Defendants filed their reply. (Defs.’ Reply, Dkt. No. 126.)

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On April 1, 2019, Defendants filed a motion to change the time of the examination to May

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16, 2019. (Dkt. No. 127.) On April 2, 2019, Defendants filed a second renewed ex parte

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application to notice the examination for May 16, 2019. (Defs.’ Mot., Dkt. No. 128 & 129.) On

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April 15, 2019, Plaintiff filed a response that is virtually identical to the March 15 opposition.

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(Dkt. No. 131.) On April 22, 2019, Defendants filed a reply that incorporated the March 21 reply

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brief. (Dkt. No. 132.)

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II.

DISCUSSION

In its opposition, Cellspin again raises the arguments that the request is unduly

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burdensome, duplicative, harassing, and premature because the case is on appeal. (Pl.’s Opp’n at

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10-14.) The Court disagrees for the reasons set forth in the November 21, 2018 order, and

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incorporates that order herein. (See 11/21/18 Order at 2-3.)
Additionally, Plaintiff argues that it already appeared at the February 21, 2019

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examination, so it should not have to appear again. (Pl.’s Opp’n at 16.) Plaintiff argues that its

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designee took an entire day off from work to be examined, but Defendants’ failure to procure a

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court reporter prevented the examination from going forward. Id. Plaintiff argues that the

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examination could have been recorded using a smartphone, which would have been less

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United States District Court
Northern District of California

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burdensome than rescheduling the examination and requiring its corporate designee to appear

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again at a later date. Id. at 17. This argument is unavailing. While Defendants should have

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arranged for a court reporter to memorialize the original examination, Plaintiff brought a number

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of unmeritorious lawsuits against multiple defendants, who have since obtained judgments against

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it. Now, four defendant corporations in three related cases are coordinating to hold a single

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judgment-debtor examination instead of having Plaintiff undergo examination four times. Thus,

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while Defendants should have been prepared to go forward on February 21, Plaintiff’s designee

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will only have to appear twice rather than four times, which is to his benefit.

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That the parties could have used a smartphone to record the proceedings, while perhaps

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novel, is not persuasive, because a court reporter can certify that the transcript is true and correct.

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Moreover, since the judgment-debtor examination was not held, California Code of Civil

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Procedure § 708.110(c) is inapplicable, and the Court may re-order the examination to occur at

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any time. See Cal. Civ. Proc. Code § 708.110(b).

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Accordingly, Defendants’ renewed ex parte application is GRANTED.
III.

CONCLUSION

In light of the foregoing, Defendants’ renewed ex parte application for an order requiring

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Cellspin Soft Inc. to appear for a judgment-debtor examination is GRANTED. Defendants’

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motion to change time is also GRANTED, and the examination is set for May 16, 2019 at 1:30
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p.m. The parties are advised that they are responsible for hiring a court reporter for the proceeding,

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and that the district court will not assist them in procuring same.

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IT IS SO ORDERED.
Dated: April 25, 2019
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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