Enneagram Personality Types, Inc. d/b/a The Enneagram Institute v. Kajtezovic et al

Filing 21

DECISION AND ORDER granting in part and denying in part 9 MOTION for Discovery before Rule 26(f) Conference and MOTION for Alternative Service; granting 17 MOTION for Extension of Time to Answer by Senad Kajtezovic. Signed by Hon. Colleen D. Holland on 03/06/2025. (CDH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ENNEAGRAM PERSONALITY TYPES, INC.
d/b/a THE ENNEAGRAM INSTITUTE,

DECISION AND ORDER

Plaintiff,
v.

6:24-CV-06747 EAW CDH

SENAD KAJTEZOVIC, JOHN DOES NO.
1-3,
Defendants.

INTRODUCTION
In this trademark infringement case, plaintiff Enneagram Personality Types,
Inc. d/b/a The Enneagram Institute (“Plaintiff”) requests leave to serve expedited
discovery in the form of interrogatories and document requests on defendant Senad
Kajtezovic (“Defendant”) and subpoenas duces tecum on non-parties Domains by
Proxy, LLC (“Domains by Proxy”) and Innovate360 Marketing, Inc. (“Innovate360”).
The stated purpose of this motion is to enable Plaintiff to determine the identities,
locations, and contact information of defendants John Does 1-3 (“John Doe
Defendants”)—the owners of three websites allegedly infringing on Plaintiff’s
trademarks—in order to effectuate service of process upon the John Doe Defendants.
(Dkt. 9-1 at 5). Plaintiff also seeks an order from the Court permitting Plaintiff to
serve the John Doe Defendants by email.
Additionally, Defendant has moved for a 35-day extension of time to respond

to the complaint, seeking a deadline of March 31, 2025. (Dkt. 17). Plaintiff opposes
Defendant’s request. (Dkt. 19).
For the reasons below, Plaintiff’s motion for expedited discovery is granted, but
its motion for alternative service is denied. Defendant’s motion for an extension of
the answer deadline is granted.
BACKGROUND
Plaintiff owns various trademarks related to its provision of education and
training in the Enneagram, a personality typing system. (Dkt. 1 at ¶¶ 23-31). John
Does 1-3 are, respectively, the owners of the websites enneagramonline.com
(“Website 1”), enneagarammeca.com (“Website 2”), and onlineseriestests.com
(“Website 3”). (Id. at ¶¶ 6-8). Plaintiff alleges that these websites infringe on its
intellectual property and engage in deceptive trade practices and unfair competition.
(Id. at ¶ 10). Plaintiff also asserts a breach of contract claim against John Doe 1, who
responded to a cease-and-desist demand by agreeing to “exit the enneagram space
entirely,” but, according to Plaintiff, continued to infringe on Plaintiff’s trademarks.
(Id. at ¶ 178).
Because Defendant’s former address is listed on the contact section of Website
3, Plaintiff alleges that Defendant is either John Doe 3 or affiliated with John Doe 3.
(Id. at ¶¶ 8-9). Plaintiff further suspects that the John Doe Defendants are either
the same person or closely affiliated persons, or entities working together to operate
these websites. (Id. at ¶ 10). A John Doe 4, who is not named as a defendant, operates
the website onlinedisctests.com (“Website 4”), and is also believed to be affiliated with

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the John Doe Defendants (collectively, the four websites are referred to hereinafter
as the “Four Websites”). (Dkt. 1 at ¶¶ 72-75).
Plaintiff does not currently have the names, addresses, or contact information
for the John Doe Defendants beyond the email addresses listed on their websites.
(Dkt. 9-2 at ¶¶ 5, 10). Moreover, the domain registrant for each of the websites is
listed as Domains by Proxy, a domain privacy service affiliated with GoDaddy that
conceals the name and contact information of the actual domain registrant. (Id. at
¶ 6; Dkt. 9-6). In accordance with its privacy policy, Domains by Proxy does not
disclose the identity or account information of any customer without a valid
subpoena. (Dkt. 9-7 at 2).
After Plaintiff commenced this action and served Defendant, counsel for
Defendant sent a letter to Plaintiff’s counsel stating that they represented Defendant
as well as Defendant’s company Innovate360, and that Plaintiff should have sued
Innovate360, rather than Defendant in his individual capacity. (Dkt. 15-1 at ¶ 2).
Counsel for Plaintiff and Defendant subsequently held a meeting on January 21,
2025, which the parties recount differently. (See id. at ¶ 3; Dkt. 9-3 at ¶¶ 4-8).
However, Plaintiff’s counsel claims, and Defendant’s counsel does not deny, that
Defendant’s counsel “stated that it was their belief that Innovate360 is associated
with or controls the websites at issue in this proceeding” and “noted that it was their
understanding that [Defendant] was the owner and sole employee of Innovate360.”
(Dkt. 9-3 at ¶¶ 5-6). At this meeting, Defendant’s counsel also declined to consent to
a motion for expedited discovery, representing that they would provide information

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regarding the Four Websites. (Id. at ¶ 7; Dkt. 15-1 at ¶ 3). On January 24, 2025,
Defendant’s counsel emailed Plaintiff’s counsel stating that Defendant would provide
Plaintiff with information next week. (Dkt. 15-1 at ¶ 4). The domain registrations
for Websites 1 and 2 were updated on February 4, 2025, and February 1, 2025,
respectively. (Dkt. 9-3 at ¶ 12).
Upon not receiving any information from Defendant or his counsel, Plaintiff
filed the instant motion on February 7, 2025. (Id. at ¶ 11; Dkt. 9). Plaintiff seeks to
serve a subpoena duces tecum on Domains by Proxy requesting:
1. All documents related to enneagramonline.com from 2023 to the
present, including identification of, and contact information for, all
owners, registrants, points of contact, registrations or updates to
registrations.
2. All documents related to enneagrammeca.com from 2023 to the
present, including identification of, and contact information for, all
owners, registrants, points of contact, registrations or updates to
registrations.
3. All documents related to onlineseriestests.com from 2023 to the
present, including identification of, and contact information for, all
owners, registrants, points of contact, registrations or updates to
registrations.
4. All documents related to onlinedisctests.com from 2023 to the present,
including identification of, and contact information for, all owners,
registrants, points of contact, registrations or updates to registrations.
(Dkt. 9-4). Plaintiff also seeks to serve a subpoena duces tecum on Innovate360
requesting:
1. All documents identifying and providing contact information for the
owners, directors and officers of Innovate360 Marketing from 2023 to
the present.
2. All documents identifying and providing contact information for any
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companies related to or affiliated with Innovate360 Marketing from
2023 to the present.
3. All documents identifying and providing contact information for any
party who controlled the web domains located at enneagramonline.com,
enneagrammeca.com, onlineseriestests.com and onlinedisctests.com
including who registered, owned, controlled, and/or has been designated
as a point of contact for each website from 2023 to the present.
(Dkt. 9-8). Plaintiff further seeks to serve the following interrogatories and document
requests on Defendant:
1. Identify and provide contact information for all persons who
registered, owned, controlled and operated the web domains located at
enneagramonline.com, enneagrammeca.com, onlineseriestests.com, and
onlinedisctests.com from 2023 to the present.
2. Identify and provide contact information for all companies that Senad
Kajtezovic founded, owned, operated or held a position as an officer or
director from 2023 to the present.
3. Identify with particularity any changes, since the filing of the
Complaint in this matter, made to the domain registrations and any
other change or modification to the servers, registrants, domain names
and websites located at enneagramonline.com, enneagrammeca.com,
onlineseriestests.com and onlinedisctests.com.
4. All documents identifying and providing contact information for all
persons who registered, owned, controlled and operated the web
domains located at enneagramonline.com, enneagrammeca.com,
onlineseriestests.com and onlinedisctests.com from 2023 to the present.
5. All documents identifying and providing contact information for all
companies that Senad Kajtezovic founded, owned, operated or worked
as a director from 2023 to the present.
6. All documents identifying the owners, directors and officers of
Innovate360 Marketing from 2023 to the present.
7. All documents identifying the owners, directors and officers of SK
Performance Marketing Inc. from 2023 to the present.
8. All documents identifying the owners, directors and officers of Seno
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Marketing LLC from 2023 to the present.
9. All documents identifying the owners, directors and officers of
Greenwater Marketing Group LLC from 2023 to the present.
(Dkt. 9-5).
On February 10, 2025, Defendant’s counsel emailed Plaintiff’s counsel
“comments” regarding the Four Websites. (See Dkt.16-2).
Regarding Website 1, Defendant’s counsel stated that an entity called
Greenwater Marketing Group LLC (“Greenwater Marketing”) responded to Plaintiff’s
cease-and-desist to Website 1, and that neither Defendant nor Innovate360 have any
association with Greenwater Marketing or Website 1. (Id. at 2). Defendant’s counsel
also stated that they represent Principal Marketing Team LLC (“Principal
Marketing”), an entity that was directing traffic to Website 1 until the website was
deactivated in August 2023, and “[t]hus, when [Greenwater Marketing] responded
that it would get out of the Enneagram space, it looks like it did.” (Id.).
Regarding Website 2, Defendant’s counsel stated that it “is the only domain in
the complaint that [Defendant and Innovate360] have anything do with, and that
Plaintiff’s trademarks were ad copy terms placed by Google. (Id.).
Regarding Website 3, Defendant’s counsel stated that it “is associated with
Innovate360 and its merchant account, however, it was never marketed on Google.”
(Id.).
Regarding Website 4, Defendant’s counsel stated that Principal Marketing
controls this domain.1 (Id. at 3).
1

On the record before the Court, it is unclear how Defendant, among other
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On February 17, 2025, Defendant filed his opposition to Plaintiff’s motion for
expedited discovery. On February 19, 2025, Defendant’s counsel emailed documents
to Plaintiff’s counsel on behalf of Innovate360 and Principal Marketing, but Plaintiff
claims that the documents “are not fully responsive to Plaintiff’s proposed discovery
requests, contain information contradictory to Defendant’s counsel’s prior
representations, and do not fully identify the owner and controllers of the domains
and websites at issue.” (Dkt. 16 at 6). Plaintiff filed reply papers on February 21,
2025. (Dkt. 16).
Also on February 21, 2025, Defendant filed his request for an extension of the
answer deadline. (Dkt. 17). Plaintiff filed opposition papers on February 26, 2025
(Dkt. 19), and Defendant filed a reply on February 28, 2025 (Dkt. 20).
DISCUSSION
I.

Motion for Expedited Discovery
A.

Legal Standard

Under Federal Rule of Civil Procedure 26(d)(1), “[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). “However, discovery will be permitted in advance of
a Rule 26(f) conference when it is ‘authorized . . . by court order.’” Rotten Records,
Inc. v. Doe, 107 F. Supp. 3d 257, 258 (W.D.N.Y. 2015) (quoting Fed. R. Civ. P.
26(d)(1)).

things, knows that Greenwater Marketing responded to Plaintiff’s cease-and-desist,
and that Principal Marketing directed traffic to Website 1 and controls Website 4,
while disclaiming any association with these companies or websites.
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As it has itself acknowledged, the Second Circuit has not articulated a specific
standard for determining whether to allow expedited discovery.

See Leslie v.

Starbucks Corp., No. 23-1194-CV, 2024 WL 2186232, at *5 n.8 (2d Cir. May 15, 2024)
(“We see no need to declare a specific standard and instead apply the general abuse
of discretion standard that we already apply to discovery-related decisions.”). District
courts in this Circuit “have variously applied either the four-part test derived from
Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982)—the elements of which track the
standard for granting a preliminary injunction—or the more flexible standard of
reasonableness and good cause[.]” R.R. Donnelley & Sons Co. v. Marino, 505 F. Supp.
3d 194, 209 (W.D.N.Y. 2020) (quoting Schneiderman v. Griepp, No. 17-CV-3706 (CBA)
(JO), 2017 WL 3129764, at *1 (E.D.N.Y. July 20, 2017)).
“The majority of courts in the Second Circuit apply the more flexible ‘good
cause’ standard when evaluating motions for expediting discovery.” R.R. Donnelly,
505 F. Supp. 3d at 209. This standard “requires the party seeking the discovery to
prove that the requests are reasonable under the circumstances.” N. Atl. Operating
Co. v. Evergreen Distributors, LLC, 293 F.R.D. 363, 367 (E.D.N.Y. 2013) (quotation
omitted). Courts may consider “the burden of responding to the discovery requests
and the likelihood that the proffered discovery will eventually take place[.]” United
States v. Erie Cnty., N.Y., No. 09-CV-849S, 2010 WL 11578742, at *3 (W.D.N.Y. Mar.
6, 2010).
In cases where the plaintiff seeks expedited discovery to subpoena an internet
service provider for the purpose of identifying a John Doe defendant, courts often

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apply the five-factor analysis adopted by the Second Circuit in Arista Records, LLC
v. Doe 3, 604 F.3d 110 (2d Cir. 2010). See e.g., Strike 3 Holdings, LLC v. Doe, 329
F.R.D. 518, 521 (S.D.N.Y. 2019); Rotten Records, Inc., 107 F. Supp. 3d at 258; Malibu
Media, LLC v. John Does 1-11, No. 12 CIV. 3810 ER, 2013 WL 3732839, at *5-6
(S.D.N.Y. July 16, 2013). The five Arista factors are:
(1) [the] concrete[ness of the plaintiff's] showing of a prima facie claim
of actionable harm, . . . (2) [the] specificity of the discovery request, . . .
(3) the absence of alternative means to obtain the subpoenaed
information, . . . (4) [the] need for the subpoenaed information to
advance the claim, . . . and (5) the [objecting] party's expectation of
privacy.
Arista Records, 604 F. 3d at 119 (quoting Sony Music Ent. Inc. v. Does 1-40, 326 F.
Supp. 2d 556, 564-65 (S.D.N.Y. 2004)).
Courts have also applied variations of the Arista factors when determining
whether good cause exists for a plaintiff to subpoena other digital platforms for the
purpose of identifying a John Doe defendant. See Corey Sipkin Photography LLC v.
ABC Corp, No. 23-CV-4754 (LJL), 2023 WL 6881683, at *1 (S.D.N.Y. Oct. 17, 2023)
(permitting subpoena on third party that had “represented itself as a contracted
publisher of the underlying web domain, providing the technology platform for the
Website but not actually owning or operating it”); Cengage Learning, Inc. v. Xuhong
Wang, No. 17 CIV. 4914 (JFK), 2017 WL 11570668, at *1-2 (S.D.N.Y. Sept. 14, 2017)
(permitting subpoenas on “current and former third-party service providers of the
websites www.ebooksgogo.com and www.ietext.com, including but not limited to
GoDaddy, LLC, PayPal, Inc., and Woo Commerce”).
The parties in this case disagree on the applicability of the Arista factors.
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Plaintiff initially relies on the factors in support of its motion. (See Dkt. 9-1 at 10).
Defendant argues that the Arista factors are inapplicable because “Arista’s
precedential value is limited to expedited discovery in the context of a motion to quash
a subpoena on First Amendment grounds.” (Dkt. 15 at 13). Defendant claims that
“[n]o Court in this Circuit has relied on the Arista analysis to resolve a Rule 26 motion
for expedited discovery, as opposed to a Rule 45 motion to quash.” Id.
As an initial matter, courts in this Circuit have in fact relied on the Arista
factors to resolve a Rule 26 motion for expedited discovery, including at least one case
cited by Defendant himself.

See Rotten Records, Inc., 107 F. Supp. 3d at 258

(“Presently before the Court is Plaintiff’s . . . motion for leave to serve a third party
subpoena prior to a Rule 26(f) conference.”); see also Corey Sipkin Photography LLC,
2023 WL 6881683, at *1-2 (S.D.N.Y. Oct. 17, 2023) (applying Arista factors where
plaintiff “move[d], by letter motion and pursuant to Federal Rule of Civil Procedure
26(d)(1), for leave to conduct discovery in advance of a Rule 26(f) conference and to
serve a subpoena”); Strike 3 Holdings, LLC v. Doe, No. 20 CIV 4501 WFK VMS, 2021
WL 535218, at *3 (E.D.N.Y. Feb. 12, 2021) (“In fact, [use of the Arista factors] may be
more necessary on a Rule 26 motion [than on a Rule 45 motion to quash], when a
John Doe defendant does not yet have notice or opportunity to protect his
anonymity.”).
Moreover, multiple courts have treated the Arista factors, in conjunction with
other factors, as useful for determining whether good cause exists on a motion for
expedited discovery. See id. at *4 (“This Court finds that a Rule 26(d)(1) motion

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should be analyzed in light of the reasonableness and good cause standard
incorporating the Arista factors”); Reinhardt v. City of Buffalo, No. 1:21-CV-206, 2021
WL 3174018, at *2 (W.D.N.Y. June 7, 2021) (listing the Arista factors among “a
variety of factors” that guide the good cause inquiry and finding that good cause
existed to allow expedited discovery in the form of interrogatories on defendants).2
Even if Arista were limited to circumstances where the expedited discovery
involved a third-party subpoena implicating a First Amendment anonymity interest,
this is, in fact, such a case. Plaintiff is seeking permission from the Court, in part, to
serve a subpoena on Domains by Proxy, which is the listed domain registrant for each
of the websites owned by the John Doe Defendants. (Dkt. 9-1 at 8). Domains by
Proxy is a service used by web domain owners specifically to conceal their identities.
(See id.). The fact that this subpoena is not being served on Defendant does not
render Arista inapplicable. Plaintiff must show good cause to obtain a court order to
“seek discovery from any source.” See Fed. R. Civ. P. 26(d)(1) (emphasis added).
B.

Analysis

For the reasons discussed above, the Court finds that the Arista factors are
useful here as part of the larger good cause inquiry. The Court further finds that

As Plaintiff notes, Defendant cites only one case where a court has questioned
the applicability of the Arista factors to a Rule 26 motion for expedited discovery.
(Dkt. 16 at 11). But even that decision acknowledges that “[t]he Arista factors inform
[the good cause] analysis.” See Strike 3 Holdings, LLC v. Doe, 331 F.R.D. 14, 17
(E.D.N.Y. 2019). Additionally, other courts in this Circuit have since questioned that
decision’s reasoning. See Strike 3 Holdings, LLC v. Doe, 2021 WL 535218, at *2-3;
Strike 3 Holdings, LLC v. Doe, No. 19 CV 5818 AT JLC, 2019 WL 5459693, at *2-3
(S.D.N.Y. Oct. 9, 2019).
2

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expedited discovery is warranted.
First, accepting the allegations in Plaintiff’s complaint as true for the purposes
of this motion, Plaintiff has made a prima facie showing of its causes of action. (See
Dkt. 9-1 at 11-15). While Defendant asserts that Innovate360 is the correct party,
and that Plaintiff has no causes of action against Defendant in his individual capacity
(Dkt. 15 at 5-6), a corporate officer can be held personally liable under the Lanham
Act for trademark infringement and unfair competition if the officer is either the sole
shareholder and employee, or a direct participant in the infringing activity. See, e.g.,
Lion-Aire Corp. v. Lion Air Installation, Inc., 747 F. Supp. 3d 488, 515 (E.D.N.Y.
2024); Canon U.S.A., Inc. v. F & E Trading LLC, No. 2:15-CV-6015 (DRH)(AYS), 2017
WL 112515 (E.D.N.Y. Jan. 11, 2017).

Plaintiff has also plausibly alleged that

Defendant can be held personally liable for Plaintiff’s claim for deceptive acts and
practices. See Mayfield v. Asta Funding, Inc., 95 F. Supp. 3d 685, 701 (S.D.N.Y. 2015)
(explaining that under New York law, “[a] corporate employee or officer who himself
participates in a tort, even if it is in the course of his duties, may be held individually
responsible”) (quotation omitted).
Second, Plaintiff’s discovery requests are specific, in that they are limited to
documents and information regarding the potential owners and operators of the Four
Websites and, in the case of one interrogatory, evidence that may have been tampered
with after Plaintiff filed its complaint. To the extent that some of the information
sought from Defendant may also be used to ascertain his relationship and/or
affiliation with the John Doe Defendants, it is highly likely that discovery of this

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information will take place eventually. See Erie Cnty, 2010 WL 11578742, at *3; see
also OMG Fid., Inc. v. Sirius Techs., Inc., 239 F.R.D. 300, 305 (N.D.N.Y. 2006) (giving
less weight to the alleged burden on defendant when the discovery sought will likely
take place eventually based on the likelihood of defendant’s total success on a motion
to dismiss). Further, if Defendant’s involvement with the Four Websites is as limited
as he represents, then responding to the discovery requests as to himself will not be
as burdensome as he claims. (See Dkt. 15 at 15-16).
Third, Plaintiff has demonstrated that it lacks alternative means to obtain the
information sought. Domains by Proxy’s privacy policy requires a valid subpoena to
obtain a customer’s identity or account information. (Dkt. 9-7 at 2). With respect to
the other discovery requests, Defendant claims that he “has clearly provided more
than enough information for Enneagram Institute to ascertain the identities of the
entities that control the four (4) websites at issue.” (Dkt. 15 at 6-7; Dkt. 15-1 at ¶ 6).
However, Defendant’s counsel provided this information after Plaintiff filed the
instant motion. In addition, the Court agrees with Plaintiff that the “comments”
provided by Defendant’s counsel raise more questions than answers regarding
Defendant’s affiliation with potential John Doe defendants Greenwater Marketing
and Principal Marketing—who Defendant claims control Websites 1 and 4,
respectively—as well as the extent to which Defendant and Innovate360 are solely
liable for the claims arising from Websites 2 and 3—which Defendant admits varying
degrees of vague association with. (See Dkt. 16-2 at 2-3). Plaintiff has also provided
evidence that Website 2 was registered before Innovate360 was incorporated. (See

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Dkt. 16 at 7-8; Dkt. 16-3 at 2; Dkt. 9-6 at 11). In short, Defendant has substantiated
Plaintiff’s identification of him as a person with a high degree of knowledge of, if not
direct involvement with, the John Doe Defendants. Accordingly, it is reasonable for
Plaintiff to believe that seeking discovery from Defendant will help it identify the
John Doe Defendants.
Fourth, Plaintiff has demonstrated that without expedited discovery, it cannot
ascertain the identities of the John Doe Defendants, and thereby serve them and
proceed with this litigation. As explained above, the Court disagrees with Defendant
that the information he has volunteered obviates the need for expedited discovery.
Moreover, Defendant appears to only set forth arguments opposing the discovery
requests as to himself, not Domains by Proxy or Innovate360. (See Dkt. 15 at 7-8).
Plaintiff has also shown a risk of spoliation in that the domain registrations for two
of the Four Websites were updated after Plaintiff’s counsel indicated its intention to
file the instant motion for expedited discovery. (See Dkt. 9-3 at ¶ 12; Dkt. 9-9).
Fifth, the Court does not find that there is a sufficient privacy interest to
overcome Plaintiff’s interest in ascertaining the John Doe Defendants’ identities and
addresses. “Defendant[s] are entitled only to a minimal expectation of privacy . . .
where Plaintiff[ ] [has] alleged what appear to be meritorious trademark
infringement claims and must determine Defendant[s’] identit[ies] in order to litigate
those claims.” Bloomberg, L.P. v. John Does 1-4, No. 13 CIV. 01787 LGS, 2013 WL
4780036, at *4 (S.D.N.Y. June 26, 2013) (quotation omitted).
Defendant argues that Plaintiff’ has not shown good cause because there is no

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motion for a preliminary injunction pending. (Dkt. 15 at 16). However, Defendant
does not cite to any authority in this Circuit to support the proposition that a pending
preliminary injunction motion is necessary under the good cause standard. Though
courts “may take into account the standard necessary to establish entitlement to a
preliminary injunction,” the test for good cause is ultimately one of reasonableness.
R.R. Donnelly, 505 F. Supp. 3d at 210.

The factors analyzed above indicate that

Plaintiff’s request for expedited discovery is reasonable under the circumstances.
The Court also disagrees with Defendant that Plaintiff failed to comply with
any applicable “pre-motion meet and confer requirement.” (See, e.g., Dkt. 15 at 15).
The innate function of a motion for expedited discovery is to begin discovery prior to
a Rule 26(f) meet and confer. See Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241
(S.D.N.Y. 2012) (“Though parties generally may not initiate discovery prior to
satisfying the meet and confer requirement of Fed. R. Civ. P. 26(f), courts may in
some instances order earlier discovery.”) (citing Fed. R. Civ. P. 26(d)(1)). In any event,
both parties represent that there was a conference in which they discussed Plaintiff’s
intention to file this motion. (See Dkt. 9-3 at ¶ 4; Dkt. 15-1 at ¶ 2). Defendant does
not otherwise specify what meet and confer requirement Plaintiff failed to comply
with.
For all these reasons, the Court grants Plaintiff’s request for expedited
discovery. Given its finding that expedited discovery is warranted, the Court denies
Defendant’s request to be awarded attorney’s fees and the costs associated with this
motion. (See Dkt. 15 at 7, 16).

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II.

Motion for Alternative Service
Plaintiff also requests the Court’s permission to serve the John Doe Defendants

by email at the email addresses listed under “Contact” on the three allegedly
infringing websites. (Dkt. 9-1 at 19).
Under Rule 4, an individual or corporation may be served in accordance with
state law for serving a summons in an action brought in courts of general jurisdiction
in the state where the district court is located. Fed. R. Civ. P. 4(e)(1), (h)(1)(A). In
accordance with New York law, the Court can permit service by email when
traditional means are impracticable. See GP Acoustics (US), Inc. v. J&V Audio, Inc.,
No. 17 CIV. 05305 (AKH), 2017 WL 11570459, at *1 (S.D.N.Y. Sept. 13, 2017)
However, given that the Court is granting Plaintiff’s motion for expedited
discovery, the use of alternative service is premature.

The express purpose of

Plaintiff’s motion for expedited discovery is “to seek the information required to
identify and contact each of the John Doe defendants.” (Dkt. 9-1 at 6). “If expedited
. . . discovery reveals the identities and locations of the unidentified Defendants, then
alternative service may not be necessary.” adMarketplace, Inc. v. Tee Support, Inc.,
No. 13 CIV. 5635 LGS, 2013 WL 4838854, at *2 (S.D.N.Y. Sept. 11, 2013) (denying
motion for alternative service in light of granting motion for expedited discovery); see
also Fornix Holdings LLC v. Unknown Party, No. CV-22-00494-PHX-DLR, 2022 WL
992546 (D. Ariz. Apr. 1, 2022) (“Plaintiffs will have expedited discovery to learn the
defendant’s identity. . . . [I]t may be possible for Plaintiffs to serve it by traditional
means after learning its identity.”); Amazon.com, Inc. v. Fitzpatrick, No. C20-1662

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RSM, 2021 WL 211540, at *2 (W.D. Wash. Jan. 21, 2021) (“Plaintiff presently seeks
expedited discovery from third parties on the basis that it will aid the identification
of the . . . Defendants and their physical addresses . . . Service by email may
ultimately be the most reasonable option, but that question should await the results
of Plaintiff's expedited discovery.”).
Plaintiff may renew its request for alternative service if, after undertaking
expedited discovery, it is still unable to effectuate service by traditional means.
III.

Motion for Extension of the Answer Deadline
The Court finally considers Defendant’s request for an extension of the answer

deadline.

Under Federal Rule of Civil Procedure 6(b)(1), a court may extend a

deadline before it has passed, or before its extension expires, for good cause. Fed. R.
Civ. P. 6(b)(1)(A). Rule 6(b)(1) is a “non-rigorous standard” that “gives the district
court wide discretion to grant a request for additional time.” Alexander v. Saul, 5
F.4th 139, 154 (2d Cir. 2021) (quotation and alteration omitted). “An application for
an extension of time under Rule 6(b)(1)(A) normally will be granted in the absence of
bad faith on the part of the party seeking relief or prejudice to the adverse party.” Id.
(quoting 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure
§ 1165 (4th ed. 2021)).
Defendant states that an extension is necessary to “1) provide any additional
information that Plaintiff requires to craft its Amended Complaint; 2) attempt to
settle this case once the Court has ruled on the pending Motion for Expedited
Discovery; and 3) to conserve both the Court’s and [Defendant’s] resources by

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preventing [Defendant] from having to file two separate motions to dismiss—one
before Plaintiff amends its complaint and one after.” (Dkt. 17-1 at ¶ 14).
Plaintiff’s objections are primarily arguments in furtherance of its motion for
expedited discovery.

(See Dkt. 19 at 5-6).

Specifically, Plaintiff asserts that

Defendant’s basis for an extension is inconsistent with his stated opposition to
expedited discovery, and that an extension will frustrate Plaintiff’s ability to identify
the John Doe Defendants and their affiliation with Defendant through expedited
discovery. (See id.). These objections are rendered moot by the Court’s granting
Plaintiff’s request for expedited discovery. The Court therefore finds that Plaintiff
will not be prejudiced by granting an extension. The Court further does not find that
Defendant has engaged in bad faith in seeking an extension of the answer deadline.
For these reasons, the Court grants Defendant’s request for an extension of the
answer deadline. Defendant shall answer or otherwise respond to the complaint by
no later than March 31, 2025.
CONCLUSION
For the reasons set forth above, Plaintiff’s motion for expedited discovery and
alternative service (Dkt. 9) is granted in part and denied in part. Plaintiff may serve
its proposed subpoenas on Domains by Proxy and Innovate360, as well as its proposed
interrogatories and document requests on Defendant. Plaintiff shall attach a copy of
this Decision and Order to the subpoenas.

Domains by Proxy, Innovate360, and

Defendant are directed to respond to Plaintiff’s discovery requests within 14 days of
service.

Plaintiff’s motion for alternative service is denied without prejudice.

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Plaintiff may seek additional time for service of the John Doe Defendants pursuant
to Federal Rule of Civil Procedure 4(m) if needed and may renew its motion for
alternative service if expedited discovery does not provide sufficient information to
allow service by traditional means.
Defendant’s motion for an extension of the answer deadline (Dkt. 17) is
granted. Defendant shall answer or otherwise respond to the complaint by March 31,
2025.
SO ORDERED.

C
CO
COLLEEN
OLLEEN D
D. H
HOLLAND
OLLA
OL
L ND
United States Magistrate Judge
Dated: Rochester, New York
March 6, 2025

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