1-800 Contacts v. DITTO Technologies

Filing 28

MEMORANDUM DECISION finding as moot 18 Motion to Strike ; finding as moot 21 Motion to Compel. Signed by Magistrate Judge Dustin B. Pead on 06/20/2013. (asp)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
1-800 CONTACTS, INC. d/b/a
GLASSES.COM, a Delaware corporation
and Utah d/b/a,

MEMORANDUM DECISION
& ORDER

Plaintiff,
Case No. 2:13-cv-00145
v.
District Court Judge David Nuffer
DITTO Technologies, Inc., a California
corporation,

Magistrate Judge Dustin Pead

Defendant.

This matter is before Magistrate Judge Dustin Pead pursuant to a referral from District
Court Judge David Nuffer. 42 U.S.C. § 636(b)(1)(A) (Dkt. No. 25). Currently pending are
Ditto Technologies Incorporated’s (Defendant) Motion To Strike (Dkt. No. 18), and Plaintiff
1-800 Contacts Incorporated’s (Plaintiff) Motion To Compel Rule 26(f) Conference and Initial
Disclosures (Dkt. No. 21).
Motion To Strike
On May 24, 2013, Plaintiff sent an email to Judge Nuffer describing a dispute that had
arisen between the parties regarding conflicting interpretations of the Federal Rules of Civil
Procedure and the proposed Local Patent Rules (LPR) (Dkt. No. 18-4). In response, Defendant
filed a motion to strike arguing that the email is an improper attempt by Plaintiff to circumvent
formal civil motion practice (Dkt. No. 18).
In response to the motion to strike, Plaintiff asserts that its email was merely a request for
clarification from the Court and was sent in accordance with the procedures set forth on Judge

Nuffer’s web page (Dkt. No. 20).1 Plaintiff indicates, however, that because Defendant
“demands formal motion practice on this issue, [Plaintiff] will file a motion seeking relief from
the Court to satisfy [Defendant’s] procedural objections.” Id. at 3. Consistent therewith, on
May 29, 2013, Plaintiff filed its pending Motion To Compel Rule 26(f) Conference and Initial
Disclosures in which it formally raises the parties’ dispute over their conflicting interpretations of
the rules (Dkt. No. 21).
Accordingly, because Plaintiff’s Motion To Compel has been filed the Court finds
Defendant’s Motion To Strike is MOOT.
Motion To Compel Rule 26(f) Conference and Initial Disclosures
In response to Plaintiff’s Complaint (Dkt. No. 2), Defendant filed a Motion To Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt No. 16). Under the new LPR, as
adopted by Judge Nuffer in this case on May 21, 2013 (Dkt. No. 17), Plaintiff sought to schedule
a Rule 26(f) case management conference. Defendant objected to the scheduling, arguing that
under its interpretation of the LPR discovery, scheduling and initial disclosures should not take
place until the Court resolves the Motion To Dismiss and Defendant files an Answer (Dkt. No.
18-1). Based upon the parties’ conflicting interpretations of the LPR’s, Plaintiff filed a Motion
To Compel seeking an Order from the Court requiring Defendant to engage in a case
management conference.
On June 10, 2013, after Plaintiff filed its Motion To Compel, Judge Nuffer issued a
Docket Text Order, requiring Defendant to file an Answer within fourteen (14) days (Dkt. No.
22). On June 11, the Court further directed the parties to file their Attorney Planning Meeting
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Judge Nuffer’s website page states: “Please email inquiries to
[e-mail]. If your question is on a specific case, please put the case name and
number in the Subject line. Your e-mail should show a copy sent to all counsel.”

Report and proposed Scheduling Orders by June 27, 2013 (Dkt. No. 24). Based upon the Court’s
Orders, the parties indicate that they have agreed to hold their Rule 26(f) Conference on June 25,
2013, and for initial disclosures to be due on or before July 8, 2013 (Dkt. No. 27).
Accordingly, Plaintiff’s Motion to Compel Rule 26(f) Conference and Initial Disclosures
is MOOT.
ORDER
1. Based upon the filing of Plaintiff’s Motion to Compel, Defendant’s Motion To Strike
is moot (Dkt. No. 18).
2. Based upon the Court’s June 10, 2013 Docket Text Order and June 11, 2103 Notice of
Initial Pre-trial Conference, Plaintiff’s Motion to Compel is moot (Dkt. No 21).

DATED this 20th day of June, 2013.

____________________________________
Dustin Pead
U.S. Federal Magistrate Judge

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