Loops et al v. Bob Barker Company

Filing 53

MEMORANDUM DECISION AND ORDER granting 42 Motion for Extension of Time to File Response/Reply re 34 MOTION to Dismiss (Response due by 1/17/2018); denying 50 Motion to Strike Exhibit E to 49 Reply. Signed by Judge David Nuffer on 12/8/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
LOOPS, L.L.C. and LOOPS FLEXBRUSH,
L.L.C.,
Plaintiffs,

v.

BOB BARKER COMPANY, INC.;
MAXILL, INC.; and DOES 1-10, inclusive,
Defendants.

MEMORANDUM DECISION AND
ORDER:
• GRANTING [42] MOTION FOR
EXTENSION OF TIME TO
RESPOND TO MOTION TO
DISMISS AND
• DENYING [50] MOTION TO
STRIKE EXHIBIT E TO REPLY
MEMORANDUM
Case No. 1:17-cv-00123-DN
District Judge David Nuffer

Plaintiffs Loops, L.L.C. and Loops Flexbrush, L.L.C. (“Loops”) filed a Motion for
Extension of Deadline to Respond to Motion to Dismiss (the “Motion for Extension”). 1 Loops
seeks a 45-day extension to respond to the motion to dismiss for lack of personal jurisdiction (the
“Motion to Dismiss”) 2 by defendant Maxill, Inc. (“Maxill”). The extension would permit Loops
time to complete jurisdictional discovery. 3 Defendant Bob Barker Company (“Barker”) does not
oppose the Motion to Extend. 4 Maxill opposes the Motion to Extend (the “Opposition”). 5 Maxill
also filed a motion to strike Exhibit E to Loops’ reply in support of the Motion for Extension (the

1

Docket no. 42, filed November 38, 2017.

2

Motion to Dismiss, docket no. 34, filed November 8, 2017.

3

Motion for Extension at 2.

4

Barker Response to Motion for Extension, docket no. 47, filed December 1, 2017.

5

Maxill Response to Motion for Extension (“Opposition”), docket no. 48, filed December 1, 2017.

“Motion to Strike”), which is a heavily redacted copy of an October 20, 2017 settlement letter
from Maxill’s counsel to Loops’ counsel (the “October 20 Letter”). 6
The Motion for Extension is granted, and the Motion to Strike is denied.
MOTION FOR EXTENSION
Loops should be afforded time to do jurisdictional discovery to provide all available facts
for assessing whether personal jurisdiction over Maxill is proper. According to its Opposition to
the Motion for Extension, “Maxill might have predicted that its products will reach the State of
Utah.” 7 While Maxill is correct that this fact alone is insufficient to establish personal
jurisdiction, the concession illustrates the need to unearth the details of Maxill’s distribution
practices before answering the personal jurisdiction question. The Supreme Court explained with
respect to establishing personal jurisdiction through the stream of commerce:
The placement of a product into the stream of commerce, without more, is not an
act of the defendant purposefully directed toward the forum State. Additional
conduct of the defendant may indicate an intent or purpose to serve the market in
the forum State, for example, designing the product for the market in the forum
State, advertising in the forum State, establishing channels for providing regular
advice to customers in the forum State, or marketing the product through a
distributor who has agreed to serve as the sales agent in the forum State. But a
defendant’s awareness that the stream of commerce may or will sweep the
product into the forum State does not convert the mere act of placing the product
into the stream into an act purposefully directed toward the forum State. 8
Applying this test will require a more developed factual record than is currently available.
Discovery has not been stayed. And the length of time requested in the Motion for Extension is
reasonable. Accordingly, Loops is permitted 45 days’ time and leave to conduct jurisdictional
discovery.

6

Motion to Strike, docket no. 50, filed December 6, 2017.

7

Opposition at 11.

8

Asahi Metal Indus. Co. v. Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 112 (1987).

2

MOTION TO STRIKE
The unredacted portion of the October 20 Letter can be considered for purposes of the
Motion for Extension without offending Rule 408 of the Federal Rules of Evidence. Maxill
contends that the October 20 Letter, and the statement revealed in this settlement letter are
protected under Federal Rule of Evidence 408. 9 As one district court has explained:
Although the intent of FRE 408 is to foster settlement negotiations, the sole
means used to effectuate that end is a limitation on the admission of evidence
produced during settlement negotiations for the purpose of proving liability at
trial. It was never intended to be a broad discovery privilege. 10
In this instance, the statement in the October 20 Letter shows that Maxill’s distribution practices
and its relationship with Barker bear further inquiry. Rule 408 does not prevent consideration of
the October 20 Letter in this context.11 The October 20 Letter is not being relied upon to prove
liability at trial. The Motion to Strike is denied.

9

Motion to Strike at 2.

10

NAACP Legal Def. Fund & Educ. Fund, Inc. v. U.S. Dep’t of Justice, 612 F. Supp. 1143, 1146 (D.D.C. 1985).

11

Fed. R. Evid. 408.

3

ORDER
Having reviewed the Motion for Extension and the Motion to Strike, and for good cause
appearing,
IT IS HEREBY ORDERED that the Motion for Extension 12 is GRANTED. Loops’
deadline to respond to Maxill’s Motion to Dismiss will be January 17, 2018.
IT IS FURTHER ORDERED that the Motion to Strike 13 is DENIED.
Dated December 8, 2017.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

12

Docket no. 42.

13

Docket no. 50.

4