Obesity Research Institute, LLC v. Fiber Research International, LLC et al

Filing 357

ORDER OVERRULING OBJECTION. Court cannot reach a "definite and firm conviction that a mistake has been committed" by the magistrate judge, and concludes that the magistrate judge's 5/12/2016 Order is not clearly erroneous. Court overrules Obesity Research Institute, LLC's 264 Objection to Magistrate Judge's May 12, 2016 Order. Signed by Judge Cynthia Bashant on 6/23/2017. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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OBESITY RESEARCH INSTITUTE,
LLC,

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Plaintiff,

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Case No. 15-cv-595-BAS(MDD)

v.

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ORDER OVERRULING ORI’S
OBJECTION TO MAGISTRATE
JUDGE’S MAY 12, 2016 ORDER
[ECF No. 264]

FIBER RESEARCH
INTERNATIONAL, LLC, et al.,

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Defendants.

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AND RELATED COUNTERCLAIM.

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Presently before the Court is Plaintiff Obesity Research Institute, LLC’s

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(“ORI”) meritless objection to the magistrate judge’s May 12, 2016 Order. The

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objection specifically addresses Defendant Fiber Research International, LLC’s

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(“FRI”) First Amended Request for Admission (“RFA”) No. 19, which was worded

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as follows:
Admit that YOUR ADVERTISING CLAIMS OF
CLINICAL PROOF OF WEIGHT/FAT LOSS for
Lipozene during the STATUTORY PERIOD were
intended to influence consumers to purchase Lipozene.

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(Persinger Decl. Ex. 1, ECF No. 210-3.) ORI responded to RFA No. 19 with the

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following:

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ORI is unable to admit or deny the request as phrased
because it is misleading to separate out a single statement
from a larger or overall advertisement, or indeed from an
overall advertising campaign. ORI admits that advertising
by definition, including its own advertising, is intended to
inform consumers[.]

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(Persinger Decl. Ex. 2, ECF No. 210-4.) The magistrate judge determined that ORI

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failed to answer the question posed, explaining that “[t]he question was whether the

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advertising was intended to ‘influence’ customers, not ‘inform.’” (May 12, 2016

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Order 4:14-21.) He ultimately concluded that the answer is evasive and insufficient

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under Rule 36(a)(4), and deemed the request admitted. (Id.)

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For the following reasons, the Court OVERRULES ORI’s objection in its

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entirety.

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I.

LEGAL STANDARD

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A party may object to a non-dispositive pretrial order of a magistrate judge

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within fourteen days after service of the order. See Fed. R. Civ. P. 72(a). The

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magistrate judge’s order will be upheld unless it is “clearly erroneous or contrary to

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law.” Id.; 28 U.S.C. § 636(b)(1)(A). The “clearly erroneous” standard applies to

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factual findings and discretionary decisions made in connection with non-dispositive

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pretrial discovery matters. F.D.I.C. v. Fid. & Deposit Co. of Md., 196 F.R.D. 375,

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378 (S.D. Cal. 2000); Joiner v. Hercules, Inc., 169 F.R.D. 695, 697 (S.D. Ga. 1996)

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(reviewing magistrate judge’s order addressing attorney-client issues in discovery for

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clear error). Review under this standard is “significantly deferential, requiring a

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definite and firm conviction that a mistake has been committed.” Concrete Pipe &

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Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. of S. Cal., 508 U.S. 602, 623

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(1993) (internal quotation marks omitted).

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On the other hand, the “contrary to law” standard permits independent review

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of purely legal determinations by a magistrate judge. See, e.g., Haines v. Liggett Grp.,

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Inc., 975 F.2d 81, 91 (3d Cir. 1992) (“[T]he phrase ‘contrary to law’ indicates plenary

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review as to matters of law.”); Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio

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1992), aff’d, 19 F.3d 1432 (6th Cir. 1994); 12 Charles A. Wright, et al., Federal

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Practice and Procedure § 3069 (2d ed., 2010 update). “Thus, [the district court] must

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exercise its independent judgment with respect to a magistrate judge’s legal

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conclusions.” Gandee, 785 F. Supp. at 686. “A decision is contrary to law if it fails

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to apply or misapplies relevant statutes, case law, or rules of procedure.” United

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States v. Cathcart, No. C 07-4762 PJH, 2009 WL 1764642, at *2 (N.D. Cal. June 18,

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2009).

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II.

ANALYSIS1

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ORI presents three general arguments in support of its objection: (1) RFA No.

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19 “impermissibly” seeks a legal conclusion under the contrary-to-law standard; (2)

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ORI’s response is “literally compliant”; and (3) ordering a further response was the

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appropriate remedy and not deeming the request admitted. The latter two arguments

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are brought under the clearly-erroneous standard. These arguments all lack merit.

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A.

RFA No. 19 Does Not Seek a Legal Conclusion.

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In arguing RFA No. 19 seeks a legal conclusion, ORI explains that the request

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“attempt[s] to improperly use RFA No. 19 to establish an element of its [Section

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43(a)] claim [under the Lanham Act]—proving materiality by proxy.” (ORI’s

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Objection 5:24-7:14.) As ORI points out, one of the elements of a Section 43(a) claim

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for false advertising is that “the deception is material, in that it is likely to influence

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FRI presents a compelling argument that by failing to previously argue RFA No. 19 calls
for a legal conclusion despite having at least four opportunities to do so, ORI waived its objection.
See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992).
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the purchasing decision.” Skydrive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105, 1110

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(9th Cir. 2012).

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Based on the text of RFA No. 19, the Court concludes that FRI seeks an

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admission of fact regarding ORI’s intent in using certain language in its advertising,

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not a legal conclusion regarding materiality. Intent and materiality are not

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synonymous here. “Intent” is not even mentioned in the definition of the materiality

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element of a Section 43(a) claim. See Skydrive, 673 F.3d at 1110. In Skydrive, a case

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ORI relies on, the Ninth Circuit noted that “materiality in [Lanham Act] false

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advertising claims is ‘typically’ proven through consumer surveys,” suggesting that

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an advertiser’s intent is not even the primary means of determining materiality. See

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Skydrive, 672 F.3d at 1110-11 (citing Southland Sod Farms v. Stover Seed Co., 108

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F.3d 1134, 1139 (9th Cir. 1997)). At best, an advertiser’s intent may be evidence to

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support a finding of materiality. ORI appears to recognize as much in its brief where

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it states that “one court has implicitly held that evidence of intent to influence may

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be sufficient to support a finding of materiality[.]” (ORI’s Objection 5:9-22 (citing

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POM Wonderful, LLC v. Purely Juice, Inc., 2008 U.S. LEXIS 55426, at *30-31 (C.D.

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Cal. July 17, 2008)).) To state the obvious, evidence to support materiality is not the

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same as materiality itself.

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Accordingly, the Court rejects ORI’s argument that RFA No. 19 impermissibly

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seeks a legal conclusion. Furthermore, the Court cannot identify any legal

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determination by the magistrate judge that is contrary to law. See Cathcart, 2009 WL

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1764642, at *2.

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B.

ORI’s Response Is Evasive.

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To determine whether the magistrate judge’s determination—that ORI’s

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response is evasive—is clearly erroneous, this Court should review that

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determination with significant deference, “requiring a definite and firm conviction

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that a mistake has been committed.” See Concrete Pipe, 508 U.S. at 623. This Court
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does not need to review the May 12, 2016 Order with such deference to reach the

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same conclusion as the magistrate judge—ORI’s response is evasive.

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RFA No. 19 simply asks ORI for an admission whether it intended to influence

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consumers to purchase Lipozene with certain advertising claims, claims which FRI

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elaborately explained and defined in “Definitions & Instructions” portion its

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Amended Requests for Admission (see Persinger Decl. Ex. 1, ECF No. 210-3).

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Instead, FRI responded with a general statement about advertising, only specifying

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that “ORI admits that advertising by definition, including its own advertising, is

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intended to inform consumers.” (Persinger Decl. Ex. 2, ECF No. 210-4.) To reiterate

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the magistrate judge, “[t]he question was whether the advertising was intended to

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‘influence’ customers, not ‘inform.’” (May 12, 2016 Order 4:14-21.) ORI did not

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respond to the question posed, and was evasive in its response.2 See Asea, Inc. v. S.

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Pac. Transp. Co., 669 F.2d 1242, 1245 (9th Cir. 1981).

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“Rule 36(a) provides that a matter may be deemed admitted if the answer ‘does

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not comply with the requirements of this rule.’” Asea, 669 F.2d at 1245. “[F]ailure

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to answer or object to a proper request for admission is itself an admission[.]” Id.

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“[A]n evasive denial, one that does not ‘specifically deny the matter,’ or a response

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that does not set forth ‘in detail’ the reasons why the answering party cannot

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truthfully admit or deny the matter, may be deemed an admission.” Id. (emphasis

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added). “[T]he district court may, in its discretion, deem the matter admitted.” Id.

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(emphasis added).

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The magistrate judge determined that ORI’s response was evasive. This Court

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also reached the same conclusion. Despite its protestation that the appropriate remedy

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was a further response, ORI provides no authority requiring that such a step be taken

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by the Court before deeming a request to which there is an evasive response as

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In arguing that its response was “literally compliant,” ORI curiously states that “[d]eeming
such a request admitted incorrectly establishes specific intent when no such intent was ever
formed.” (ORI’s Objection 9:7-8.) This statement—particularly, the clause that “when no such
intent was ever formed”—suggests that ORI’s position is one of denying RFA No. 19.
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admitted. Rather, binding legal authority that ORI itself relies on, suggests that

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deeming admitted a request to which there is an evasive or non-responsive response

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is within the discretion of the Court. See Asea, 669 F.2d at 1245. Rule 36(a)(6)

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confirms as much—“On finding that an answer does not comply with this rule, the

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court may order either that the matter is admitted or that an amended answer be

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served.” There is no preference in the rule itself as to which remedial measure should

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be employed first when a party does not comply with Rule 36(a). See Fed. R. Civ. P.

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36(a)(6).

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The magistrate judge’s determination that ORI’s response was evasive coupled

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with the remedial measures authorized by Rule 36(a) permit the Court to deem RFA

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No. 19 as admitted. In this matter, the magistrate judge acted well within the scope

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of his discretionary authority. Consequently, the Court cannot reach a “definite and

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firm conviction that a mistake has been committed” by the magistrate judge, and

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concludes that the magistrate judge’s May 12, 2016 Order is not clearly erroneous.

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See Concrete Pipe, 508 U.S. at 623.

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III.

CONCLUSION & ORDER
In light of the foregoing, the Court OVERRULES ORI’s objection to the

magistrate judge’s May 12, 2016 Order. (ECF No. 264.)
IT IS SO ORDERED.

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DATED: June 23, 2017

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