Nutreance LLC et al v. Primark, LLC et al

Filing 70

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' Motion to Amend Case Management Order (ECF No. 59 ) is GRANTED. IT IS FURTHER ORDERED that the parties shall meet and confer and file an Amended Joint Proposed Scheduling Plan no late r than November 7, 2018. IT IS FINALLY ORDERED that Plaintiffs' Motion to Overrule Objections and Compel Answers to Discovery Requests (ECF No. 56 ) and Plaintiffs' Alternative Motion for Leave to Serve Additional Interrogatories upon Defendants (ECF No. 57 ) are DENIED without prejudice. (Joint Scheduling Plan due by 11/7/2018.) Signed by District Judge Ronnie L. White on 10/23/2018. (AFC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

NUTREANCE LLC, et al.,
Plaintiffs,
V.

PRIMARK LLC, et al.,
Defendants.

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No. 4:18CV98 RLW

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiffs' Motion to Overrule Objections and Compel
Answers to Discovery Requests (ECF No. 56), Plaintiffs' Alternative Motion for Leave to Serve
Additional Interrogatories upon Defendants (ECF No. 57), and Plaintiffs' Motion to Amend Case
Management Order (ECF No. 59). The motions are fully briefed and ready for disposition.
Background

Plaintiffs Nutreance LLC, Indingo, LLC, and Keoch Corp. own dietary supplements and
their trademarks which Plaintiffs market and sell on the internet. Plaintiffs allege that
Defendants own and operate websites and blogs purporting to give unbiased reviews of products,
which are actually sham and manipulated ranking system. Plaintiffs contend that Defendants
rate their products as #1 while giving competing products bad reviews. Plaintiffs further allege
that the websites create a false impression that they are operated by unbiased third parties. In
addition, Defendants provide a link next to Plaintiffs' products which then takes consumers to a
page to purchase Defendants' products. Plaintiffs claim that Defendants have decreased
Plaintiffs' sales and harmed Plaintiffs' reputations. On January 22, 2018, Plaintiff filed a
Complaint for Damages and Equitable Relief alleging Trademark Infringement, False

Advertising, Federal Unfair Competition, Common Law Unfair Competition, Commercial
Disparagement, Defamation, and Tortious Interference with Business
Relationships/Expectancies. (Compl., ECF No. 2) Plaintiffs seek declaratory judgment,
compensatory damages, restitution, and disgorgement profits. 1 (Id. at p. 15)
On August 24, 2018, Plaintiffs filed a Motion to Overrule Objections and Compel
Answers to Discovery Requests and an Alternative Motion to for Leave to Serve Additional
Interrogatories. On that same date, Plaintiffs filed a Motion to Amend the Case Management
Order. Plaintiffs generally aver that Defendants have objected to all of Plaintiffs interrogatories,
requests for production, and requests for admission, making it impossible for Plaintiffs to obtain
expert reports or otherwise complete discovery. Plaintiffs seek an amended Case Management
Order ("CMO") and either an order compelling Defendants to provide answers to Plaintiffs'
discovery requests or an order allowing Plaintiffs to propound additional interrogatories.
Defendants oppose all three requests.

Discussion
Under Federal Rule of Civil Procedure 16(b), a CMO "may be modified only for good
cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). "The primary measure of good
cause is the movant's diligence in attempting to meet the order's requirements." Sherman v.
Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008) (quotation and citation omitted). Here,
Plaintiffs contend that they have diligently pursued discovery in this matter, but Defendants have
either failed to provide the requested discovery or have provided evasive responses such that
Plaintiffs have been unable to prepare their expert reports.

On October 4, 2018, Plaintiffs voluntarily dismissed their claim for lost profits in the Prayer for
Relief. (ECF No. 68)
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The Court finds that amendment of the CMO is warranted in this case. The Court issued
the CMO on June 5, 2018, and Plaintiffs filed their motions two months later. While Defendants
attempt to show unreasonable delay on the part of the Plaintiffs by holding the Plaintiffs to the
date the parties first conferred under Rule 26(f), Defendants offer no case law in support of this
proposition. Nothing in the record demonstrates delay on the part of Plaintiffs to comply with
the CMO, and the Court will order the parties to meet and confer, and file an amended joint
proposed scheduling plan with realistic discovery deadlines, the ADR referral date, and deadlines
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for dispositive motions. The Court will also consider a brief continuation of the trial date.
With respect to Plaintiffs' motion to compel or, in the alternative motion for leave to
propound additional interrogatories, the Court will deny the motions without prejudice. In light
of the extension of time for discovery in an amended CMO, the Court is confident that the parties
can discuss and resolve their discovery disputes in good faith without Court intervention.
However, should the parties be unable to reach a resolution, the Court will consider any renewed
motion to compel or motion to propound additional interrogatories.
Accordingly,

IT IS HEREBY ORDERED that Plaintiffs' Motion to Amend Case Management Order
(ECF No. 59) is GRANTED.

IT IS FURTHER ORDERED that the parties shall meet and confer and file an
Amended Joint Proposed Scheduling Plan no later than November 7, 2018.

IT IS FINALLY ORDERED that Plaintiffs' Motion to Overrule Objections and Compel
Answers to Discovery Requests (ECF No. 56) and Plaintiffs' Alternative Motion for Leave to

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Although Plaintiffs have submitted a proposed scheduling plan, the Court notes that the
disclosure of expert witnesses date is less than two weeks away. In light of the multiple
discovery disputes in this case, the Court will allow the parties to extend the proposed dates, if
necessary.
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Serve Additional Interrogatories upon Defendants (ECF No. 57) are DENIED without

prejudice.
Dated this 23rd day of October, 2018.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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