Ariix, LLC v. Nutrisearch Corporation et al

Filing 18

ORDER Denying 15 Plaintiff's Motion to Compel Rule 26(f) Conference. Signed by Magistrate Judge Bernard G. Skomal on 9/22/2017. (lrf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ARIIX, LLC,

Case No.: 17-cv-00320-LAB-BGS
Plaintiff,

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v.

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NUTRISEARCH CORPORATION, et al.,

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ORDER DENYING PLAINTIFF’S
MOTION TO COMPEL RULE 26(f)
CONFERENCE

Defendants.

[ECF No. 15]

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Before the Court is a motion filed by Plaintiff Ariix, LLC (“Plaintiff”), on June 6,

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2017, to compel Defendants to participate in a discovery conference under Federal Rule

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of Civil Procedure 26(f). (ECF No. 15.) Defendant NutriSearch Corporation and Lyle

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MacWilliam (“Defendants”) filed an Opposition to Plaintiff’s Motion on June 14, 2017.

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(ECF No. 16.) Subsequently, on June 21, 2017, Plaintiff filed a Reply in support of their

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motion. (ECF No. 17.) For the reasons discussed below, Plaintiff’s request is DENIED.

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I.

BACKGROUND

Plaintiff filed a Complaint against Defendants on February 16, 2017. (ECF No. 1.)

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The Complaint alleges False Advertising under Section 43(a) of the Lanham Act, 15

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U.S.C. § 1125 (a). (Id.) Defendants filed a Motion to Dismiss or Stay the Proceedings on
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March 8, 2017. (ECF No. 5.) In their Motion, Defendants state: “(1) consumer reports are

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exempt from the Lanham Act in these circumstances, and (2) the first-filed Canadian

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complaint is a more convenient forum and (3) the doctrine of international abstention

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dictates that the case should be stayed or dismissed.” (Id. at 4.)

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II.

DISCUSSION

A. Parties’ Arguments
This dispute between the parties arises from a discovery scheduling issue. Plaintiff

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filed the present Motion to Compel Defendants to participate in a Discovery Conference

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under Rule 26(f) to allow Plaintiff to proceed with discovery. (ECF No. 15.) Plaintiff’s

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Motion asserts that discovery is not stayed pending a Motion to Dismiss. (Id. at 3.)

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Plaintiff further asserts that since the Defendants have not requested a stay of discovery,

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they must participate in a Rule 26(f) conference now. (Id. at 6.)

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In their Opposition to Plaintiff’s Motion to Compel, Defendants state that the Rule

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26(f) Conference does not occur until after the Early Neutral Evaluation (“ENE”) takes

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place. (ECF No. 16 at 2.) Defendants also state that Plaintiff lacks good cause to start

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discovery early. (Id. at 3.)

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B. Standard of Review and Analysis
Federal Rule of Civil Procedure 26(d) states that “[a] party may not seek discovery

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from any source before the parties have conferred as required by Rule 26(f), except in a

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proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized

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by these rules, by stipulation, or by court order.” A Rule 26(f) conference is to be held

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“as soon as practicable—and in any event at least 21 days before a scheduling conference

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is to be held or a scheduling order is due under Rule 16(b).” Fed. R. Civ. P. 26(f)(1).

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However, Rule 16(b) allows the judge to delay issuance of a scheduling order (and

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consequently the Rule 26(f) conference) if good cause for delay is found. Fed. R. Civ. P.

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16(b). In this case, a Rule 26(f) conference had not yet been ordered, and discovery had

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not officially commenced in light of the Court’s Civil Local Rule 16.1.a.1, which finds

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good cause to adjust the timing for issuing a scheduling order in order to accommodate
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this district’s Early Neutral Evaluation (ENE) procedure. In addition, our Local Rules

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provide that “[a]t the discretion of a judge assigned to the case, ENE and case

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management conferences need not be set in … [c]ases in which a substantial number of

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defendants have not answered.” Civ. L.R. 16.1.e. Here, Defendants have not filed an

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answer, and a motion to dismiss is before the Court. As there has been no answer filed,

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the Court has not scheduled an ENE and the parties have not been given a timetable or

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directed to proceed under Rule 26(f). As such the Court finds good cause for the delay in

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scheduling the Rule 26(f) conference until the answer has been filed. See Civ. L.R. 16.1.

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Further, the Ninth Circuit has held that the purpose of the 12(b)(6) motion is to

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challenge the legal sufficiency of a complaint before engaging in extensive discovery.

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Rutman Wine Co. v. E & J Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) (explaining,

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“[i]t is a sounder practice to determine whether there is any reasonable likelihood that

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plaintiffs can construct a claim before forcing the parties to undergo the expense of

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discovery.”). The Court concurs, and therefore finds that the issues raised in the motion

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to dismiss should be resolved before the Plaintiff’s discovery requests.

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III.

CONCLUSION

For the reasons above, the Court DENIES Plaintiff’s Motion to Compel a Rule
26(f) Conference.
IT IS SO ORDERED.
Dated: September 22, 2017

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