Cheval International et al v. Smartpak Equine, LLC

Filing 135

ORDER denying 90 Motion to Dismiss; granting 94 Motion for Leave to take the deposition of Rebecca Minard; granting 104 Motion allowing August Anderson to turn Cheval into a Sole Proprietorship, and hereinafter the named Plaintiff in this case will be "August K. Anderson, d/b/a Cheval International, a sole proprietorship"; denying as moot 126 Motion to Compel. Signed by U.S. District Judge Lawrence L. Piersol on 3/17/17. (DJP)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
CLERK

1

WESTERN DIVISION

AUGUST K. ANDERSON d/b/a CHEVAL *

CIV 14-5010

INTERNATIONAL,a sole proprietorship, *
Plaintiff,
ORDER ON ISSUES

s-

ADDRESSED DURING

SMARTIfAK EQUINE,LLC,

MARCH 15, 2017 HEARING

PAAL GISHOLT and

REBECc|a MINARD,
I
i

Defendants.

1,

oh March 15,2017,the Court held a status conference during which the parties clarified their

positions[on discovery issues and the Court ruled on pending motions. Plaintiffappeared pro se and
Defendants appeared through counsel Richard Oparil and Thomas Fritz. Appearances were by
telephone.

The Court first addressed Defendants' Motion to Dismiss Counts I and II ofthe Amended

Complaint Against Defendant Rebecca Minard. (Doc. 90.) Prior to the hearing on March 15,
Defendarits had moved for dismissal ofMinard pursuant to Federal Rule ofCivil Procedure 12(b)(6)

for failure to state a claim, arguing in their briefs that the Amended Complaint was devoid of any
facts that Minard took part in acts oftrademark infringement and unfair competition. In considering

the 12(b)(6) motion to dismiss before the status conference,the Court viewed the allegations in the
Amended Complaint in the light most favorable to Plaintiff. See Eckert v. Titan Tire Corp., 514

F.3d 80I,|806(8th Cir. 2008){citing Luney v. SGS Auto. Servs., Inc., 432 F.3d 866, 867(8th Cir.
2005)). jlhe Court accepted the allegations contained in the complaint as true and drew all

reasonable inferences in favor ofthe nonmoving party. Coonsv. Mineta,410 ¥.3d 1036,1039(8th
Cir. 2005)(citation omitted). The Court concluded that Plaintiff pleaded sufficient facts to state

plausible!claims for trademark infringement and unfair competition against Minard. Accordingly,
the Court denied Defendants' motion to dismiss Minard.
I

s

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The Court granted Plaintiff s Motion for Leave to Take Deposition ofRebecca Minard(doc.
94) based on their need to discover facts pertaining to Minard's involvement in the acts alleged in
the Ameiided Complaint. (iSee doe. 96 at2-5.)

Next,the Court discussed the effect ofPlaintiffs pro se status on the terms ofthe Protective

Order,' noting that the definition of"Highly Confidential - Attorneys' Eyes Only" is too broad and
unworkable, especially with a pro se plaintiff. (See doc. Ill, Protective Order at 12.) Defendants
said they have not produced approximately 100 to 150 pages of documents they have designated as
Attorneys' Eyes Only. They represented that about 50 additional pages of highly confidential
documents subpoenaed from third party Dover Saddlery also have not been turned over to Plaintiff.
The Court ruled that Defendants should submit for in camera inspection by the Court a Bates
stamped copy of all documents designated as Attorneys' Eyes Only and not produced to Plaintiff.
The Court will determine the relevancy ofthe documents,the potential for damage that could result
from their disclosure, and a proper proteetive order should production be ordered.

Following the Protective Order discussion,the Court reviewed whether Defendants' Motion

to Compel(doc. 126)had been resolved by Anderson's production of documents and the taking of
her deposition. After some assurances by Anderson, counsel for Defendants indicated to the Court

thatthe remaining issues were resolved and that the Motion to Compel is moot. The Court ruled that

'By Order issued on November 22, 2016, the Court ruled that if Anderson submitted proof
that Cheval International was changed from a limited partnership to a sole proprietorship it would

allow the named plaintiffto be substituted as "August Anderson, d/b/a/ Cheval International, a sole
proprietorship," and would allow Plaintiff to proceed pro se. (Doc. 112 at 3.) On December 13,
2016,Anderson submitted proofthat Cheval was switched to a sole proprietorship. (Doc. 113.) The
Court has not yet formally granted Plaintiffs motion to proceed pro se, but will do so in this Order.

the subpoena of financial information from Anderson's accountant/tax attorney is moot now that
Defendants have been provided with all of Anderson's available financial information.

Finally, the parties agreed to work on ensuring that Anderson obtains legible copies of the
documents produced by Defendants in discovery. Accordingly,

IT IS ORDERED:

1. That Defendants' Motion to Dismiss Counts I and II of the Amended Complaint
Against Defendant Rebecca Minard (doc. 90)is denied.

2. That Plaintiffs Motion for Leave to Take Deposition ofRebecca Minard(doc.94)
is granted.

3. That the Motion for Order Allowing August Anderson to turn Cheval into a Sole
Proprietorship (doc. 104)is granted, and hereinafter the named Plaintiff in this case

will be "August K. Anderson,d/b/a/ Cheval International, a sole proprietorship," as
set forth in the caption above.

4. That Defendants' Motion to Compel(Doc. 126)is moot.
5. That on or before Friday, March 24, 2017, Defendants shall submit to the Court

for in camera inspection a Bates stamped copy of all documents designated as
Attorneys' Eyes Only and not produced to Plaintiff.

6. That the parties shall cooperate to ensure that Plaintiff obtains legible copies of
documents provided by Defendants in discovery.
Dated this 17th day of March, 2017.
BY THE COURT:

lOitiJUJUuUL
awrence L. Piersol

United States District Judge
ATTEST:

JOSEPH HAAS,CLERK
BY:

(SEAL)

DEPUTY