Townsend v. Brooks Sports, Inc.

Filing 47

ORDER denying 41 Plaintiff's Motion for Leave to Take Limited Discovery in Response to Motion to Dismiss or Transfer. See Order for details. Signed by Magistrate Judge Mac R. McCoy on 8/11/2017. (JTM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
HERBERT E. TOWNSEND,
Plaintiff,
v.

Case No: 2:17-cv-62-FtM-99MRM

BROOKS SPORTS, INC.,
Defendant.
/
ORDER
Pending before the Court is Plaintiff’s Motion for Leave to Take Limited Discovery in
Response to Motion to Dismiss or Transfer (Doc. 41) filed on July 21, 2017 and Defendant’s
response thereto (Doc. 43) filed on August 4, 2017.
Previously in this patent litigation, Defendant filed its Motion to Dismiss or Transfer for
Improper Venue (Doc. 38) seeking dismissal of this action or, in the alternative, transfer of this
case to the Western District of Washington. (Id. at 31). In the Motion, sub judice, Plaintiff
states that Defendant’s Motion to Dismiss or Transfer for Improper Venue “is currently
supported by a declaration from one of its employees, Rick Wilhelm.” (Doc. 41 at 1). Plaintiff
states that this Declaration asserts facts relating to Defendant’s activity in this district and
Defendant’s business. (Id.). Plaintiff further states that Defendant’s Motion to Dismiss relies on
these facts. (Id.). Plaintiff contends that he has not had any opportunity to take discovery on
these issues, to explore the Wilhelm Declaration, or to discover additional facts. (Id.). Thus,
Plaintiff contends that “[t]his incomplete record supports the need for additional discovery to
determine whether venue is proper.” (Id.).

Based on these arguments, Plaintiff specially requests that the Court – in the event it does
not deny Defendant’s pending Motion to Dismiss – “(1) grant Plaintiff leave to conduct limited
discovery on the issues of Brooks’ business that is relevant to venue in this district (without
prejudice to Plaintiff’s right to take further discovery later on issues other than venue) including
service of interrogatories and requests for production,” and “(2) hold in abeyance any decision
on Brooks’ Motion to Dismiss until Plaintiff is able to supplement its opposition with the results
of that discovery.” (Id. at 3).
Defendant opposes the relief requested by Plaintiff. (See Doc. 43 at 5). 1 Specifically,
Defendant argues that Plaintiff’s motion is “based on the false premise that ‘Plaintiff has not had
the opportunity’ to take discovery on the ‘facts as to Brooks’ activity in this district and Brooks’
business.’” (Id. (citing Doc. 41 at 1)). Defendant contends that “discovery opened months ago.”
(Id.). As a result, Defendant argues that Plaintiff’s excuse is misplaced and that Plaintiff should
not be allowed “a do-over in briefing relating to Townsend’s defective choice of venue.” (Id.).
Additionally, Defendant argues that Plaintiff’s Motion “should also be denied as untimely
because Townsend has long known of Brooks’ objection to venue.” (Id.). Defendant argues
that, even with this knowledge, Plaintiff “still has not propounded any discovery on the issue of
venue.” (Id.). Finally, Defendant argues that Plaintiff has not “specifically identified any
relevant facts that are allegedly missing from the record or how discovery would provide them.”
(Id.).
The decision whether to grant a motion for discovery is within the discretion of the Court.
See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1280 (11th Cir. 2009). In making the
determination of whether jurisdictional discovery should be permitted, courts may evaluate the
1

The Court cites to the pagination in CM/ECF, not Defendant’s pagination.

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timeliness of the request. See id. at 1281. When a party fails to take timely steps to seek
discovery, the Court may deny the request. See id. In this instance, the Court agrees with
Defendant and finds that Plaintiff’s Motion is due to be denied as untimely.
As an initial matter, the Court notes that Plaintiff cites various authorities suggesting that
discovery is helpful in deciding motions to dismiss, especially those involving jurisdiction and
venue. (Doc. 41 at 2 (citing e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).
While this is often true, as pointed out by Defendant, the authorities cited by Plaintiff primarily
deal with the situation where a party is seeking to conduct discovery on a Fed. R. Civ. P. 12
motion prior to discovery opening. (Doc. 43 at 7 (citing e.g., Steinberg v. Barclay’s Nominees
(Branches) Ltd., No. 04-60897-CIV, 2007 WL 4287662, at *2 (S.D. Fla. Dec. 5, 2007)). That
situation is not present here.
Specifically, in general, “[a] party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f).” Fed. R. Civ. P. 26(d)(1). The Court notes that
Fed. R. Civ. P. 26(f) concerns a conference of the parties to discuss, inter alia, the parties’
discovery plan. After the Rule 26(f) conference, the parties may engage in discovery. See R.
Civ. P. 26(d)(1). In this action, the parties conducted a Case Management Meeting pursuant to
Rule 26(f), as evidenced by the joint Case Management Report filed on May 22, 2017. (See
Doc. 29). Having complied with the requirements of Rule 26(d)(1), the parties were permitted to
seek discovery at that time. Further, if there was any uncertainty regarding when discovery
could begin, that uncertainty should have been raised at the June 13, 2016 Preliminary Pretrial
Conference. At that time, the Court and the parties discussed discovery issues, including the
discovery deadline. The parties were certainly on notice by that date that they could seek
discovery. In fact, the record shows that Plaintiff served discovery requests unrelated to venue

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on June 21, 2017. (See Docs. 43-2, 43-3). Because discovery has been open since at least May
22, 2017, the present situation is not one where the movant sought relief promptly before
discovery opened. Thus, the authorities cited by Plaintiff are distinguishable.
Moreover, because discovery had been open for two months prior to the filing of his
Motion, Plaintiff’s contention that he has not had the ability to seek discovery regarding venue is
not accurate. Plaintiff has, in fact, had the ability to seek discovery related to venue since at least
May 22, 2017, but has apparently chosen not do so until now. Plaintiff’s ability to seek relevant
discovery, and his corresponding choice not to do so, weighs against finding that Plaintiff’s
motion is timely.
Furthermore, the Court notes that the timing of Plaintiff’s Motion for discovery is
curious. Specifically, Plaintiff filed his Motion after he filed a response in opposition (Doc. 40)
to Defendant’s Motion to Dismiss or Transfer for Improper Venue (Doc. 38). As a result,
Defendant’s Motion is now fully ripe. Logically, if Plaintiff needed additional information to be
able to respond to Defendant’s Motion, Plaintiff should have moved for discovery before he filed
his response in opposition. Plaintiff chose not to proceed in this manner. Moreover, the present
situation is not one where the issue of venue is a surprise. Plaintiff has known of Defendant’s
objection to venue since, at the very least, the time of the Preliminary Pretrial Conference on
June 13, 2016. Despite being on notice of the venue issues, Plaintiff did not previously seek any
discovery from Defendant regarding those issues.
At this point, the Court has a fully ripe Motion to Dismiss or Transfer for Improper
Venue (Doc. 38) pending before it. If the Court grants Plaintiff’s Motion, however, the Court
will not be able to resolve Defendant’s Motion for some time, causing a delay not only to the
proceedings in this Court but also potentially to the court in Washington should the case

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ultimately be transferred there. Thus, for the reasons articulated above, the Court finds no reason
to delay further the resolution of the fully ripe Motion to Dismiss or Transfer for Improper
Venue (Doc. 38) and, therefore, denies Plaintiff’s Motion for Leave to Take Limited Discovery
in Response to Motion to Dismiss or Transfer (Doc. 41) as untimely.
As a final matter, the Court is certainly sensitive to any issue regarding its ability to
resolve Defendant’s Motion upon a complete record. At this time, however, the Court has no
basis to conclude that the record before it is incomplete. Specifically, while Plaintiff argues that
the record regarding venue is incomplete, (Doc. 41 at 1), Plaintiff has not articulated what
additional facts, in any, are allegedly missing from the record or how discovery would provide
them. On this point, Plaintiff’s Complaint contends venue is proper in this district based on 28
U.S.C. §§ 1391 and 1400(b). Pursuant to 28 U.S.C. § 1400(b), “[a]ny civil action for patent
infringement may be brought in the judicial district where the defendant resides, or where the
defendant has committed acts of infringement and has a regular and established place of
business.” In his Motion, Plaintiff states that he is seeking discovery for “the contacts of
Defendant . . . with this district.” (Doc. 41 at 1). Despite this contention, Plaintiff’s Motion
provides no basis for the Court to conclude that Defendant’s “contacts” with this district are
something that the Court must specifically consider in determining proper venue, or that the
record currently before the Court on this point is somehow incomplete. Plaintiff’s conclusory
statement that the current record is incomplete is not sufficient. Accordingly, Plaintiff’s Motion
is due to be denied on this basis as well.
Accordingly, for the reasons articulated above, the Court hereby ORDERS that:
Plaintiff’s Motion for Leave to Take Limited Discovery in Response to Motion to
Dismiss or Transfer (Doc. 41) is DENIED.

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DONE AND ORDERED in Fort Myers, Florida on August 11, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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