Maxill Inc. v. Loops, LLC et al

Filing 40

MINUTE ORDER directing Loops, L.L.C. and Loops Flexbrush, L.L.C. to SHOW CAUSE by 5/31/2019, why defendants Does 1-10 should not be dismissed for failure to identify and join such entities; regarding parties' 32 , 34 First Submission Under L CR 37, and parties' 35 , 37 Second Submission Under LCR 37, See Minute Order for details. Except as granted in Paragraphs 2 and 3, (See Minute Order), the LCR 37 submissions are DENIED. The Court DECLINES to award attorneys' fees or c osts in connection with either of the parties' LCR 37 submissions. Expert Witness Disclosure/Reports under FRCP 26(a)(2) deadline extended to 6/28/2019. Motions related to expert witnesses deadline extended to 10/10/2019. Pretrial Order due by 1/10/2020, Rebuttal Expert Disclosure/Reports deadline extended to 7/26/2019. Authorized by Judge Thomas S. Zilly. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MAXILL INC., an Ohio corporation,

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Plaintiff,

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MINUTE ORDER

Defendants.
LOOPS, L.L.C.; and LOOPS
FLEXBRUSH, L.L.C.,

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(consolidated with C18-1026 TSZ)

LOOPS, LLC; and LOOPS
FLEXBRUSH, LLC,

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C17-1825 TSZ

v.

Plaintiffs,
v.
MAXILL INC., a Canadian corporation;
and DOES 1-10,

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Defendants.
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The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:

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(1)
Loops, L.L.C. and Loops Flexbrush, L.L.C. (collectively, “Loops”) are
DIRECTED to show cause by May 31, 2019, why defendants Does 1-10 should not be
21 dismissed for failure to identify and join such entities on or before October 22, 2018, the
deadline set forth in the Minute Order entered August 30, 2018, docket no. 23.
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MINUTE ORDER - 1

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(2)
With regard to the parties’ first submission under Local Civil Rule 37,
docket nos. 32 and 34, the Court ORDERS as follows:

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(a)
Loops Interrogatory No. 3: Maxill Inc., an Ohio corporation, and
Maxill Inc., a Canadian corporation, (collectively, “Maxill”) are DIRECTED to
identify the entities that have purchased the Accused Products within the United
States since May 28, 2013; Maxill’s response shall be subject to the restrictions set
forth in the Stipulated Protective Order, docket no. 25, for material designated as
“Confidential - Attorneys Eyes Only.”
(b)
Loops Interrogatory No. 9: Loops has not indicated how Maxill’s
response to this interrogatory is incomplete, and Loops’s request to compel further
disclosure from Maxill in response to this interrogatory is DENIED.
(c)
Loops Interrogatory No. 10: This interrogatory seeks essentially the
same information as Interrogatory No. 3, and the Court’s ruling concerning
Interrogatory No. 3 renders moot the parties’ dispute regarding Interrogatory
No. 10.
(d)
Loops Request for Production No. 16(h-j): Maxill is DIRECTED to
produce profit and loss or similar statements reflecting gross profits on the
Accused Products since May 28, 2013, as well as costs, taxes, and/or overhead
expenses used to compute net profits; Maxill is DIRECTED to also produce any
promotional materials and/or advertisements that were distributed or displayed
within the United States relating to the Accused Products; Loops’s request to
compel from Maxill “all documents mentioning” the Accused Products, including
specifications, manuals, invoices, purchase orders, bills of lading, and customs
manifests, is DENIED because it seeks discovery that is not proportional to the
needs of the case, see Fed. R. Civ. P. 26(b)(1); Maxill’s financial information shall
be subject to the restrictions set forth in the Stipulated Protective Order, docket
no. 25, for material designated as “Confidential - Attorneys Eyes Only,” but any
promotional or advertising materials previously distributed to third parties shall
not be treated as “Confidential” or “Confidential - Attorneys Eyes Only.”
(e)
Maxill shall comply with the discovery obligations set forth in
Paragraphs 2(a)-(d), above, on or before May 24, 2019.
(3)
With regard to the parties’ second submission under Local Civil Rule 37,
docket nos. 35 and 37, the Court ORDERS as follows:
(a)
Request for Production No. 10: Loops is DIRECTED to produce, on
or before May 24, 2019, any documents responsive to this request and a statement
indicating that a diligent search was performed.

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MINUTE ORDER - 2

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(b)
Request for Production No. 7: Loops is DIRECTED to produce, on
or before June 14, 2019, profit and loss or similar statements (e.g., unredacted
portions of its ledgers) reflecting gross profits, if any, on sales to entities identified
by Maxill in response to Loops’s Interrogatory No. 3; Loops’s disclosures shall be
subject to the restrictions set forth in the Stipulated Protective Order, docket
no. 25, for material designated as “Confidential - Attorneys Eyes Only.”

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(c)
Request for Production No. 57: Maxill’s request to compel Loops to
produce “all records, including any purchase orders, sales and payment receipts”
corresponding to “each sales figure” in Loops’s previously disclosed ledgers is
DENIED because it seeks discovery that is not proportional to the needs of the
case, see Fed. R. Civ. P. 26(b)(1).
(d)
Request for Production No. 58: Maxill’s request to compel Loops to
produce “detail records and documents” supporting the foreign ledger, dual ledger,
and California ledger previously disclosed is DENIED because it seeks discovery
that is not proportional to the needs of the case, see Fed. R. Civ. P. 26(b)(1).
(e)
Request for Production No. 59: Maxill’s request to compel Loops to
produce “all documents and things” that support Steven Kayser’s testimony about
Loops’s decrease in sales resulting from “counterfeiting” over the last ten years is
DENIED; this action concerns Loops’s allegations that Maxill is and/or was
infringing United States Patent No. 8,448,285, which issued on May 28, 2013, and
whether Loops suffered losses as a result of “counterfeiting” of products not
embodying the patent, or in which entities other than Maxill engaged, is not
relevant.
(f)
Interrogatory No. 9: Maxill’s request to compel Loops to identify
new customers “gained in 2016” is DENIED; Maxill appears to seek such
information to prove that Loops “habitually pursues litigation against its
competitors . . . for the sole purpose of monopolizing the market,” 2d LCR 37
Mot. at 19 (docket no. 37), but a patent holder like Loops “may bring suit [to
enforce its patent rights against infringement] without fear that [its] doing so will
be regarded as an unlawful attempt to suppress competition,” see Dawson Chem.
Co. v. Rohn & Haas Co., 448 U.S. 176, 201 (1980); see also 35 U.S.C. § 271(d);
moreover, to the extent that Interrogatory No. 9 is inquiring about Loops’s sales in
2016 to entities that have purchased the Accused Products since May 28, 2013, the
Court’s ruling concerning Request for Production No. 7 renders moot the parties’
dispute regarding Interrogatory No. 9.
(g)
Interrogatory No. 16: Loops is DIRECTED to state, on or before
May 24, 2019, the amount of damages, if any, being sought in this litigation for
lost sales, and how such amount is calculated.

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(h)
Request for Production No. 60: Maxill’s request to compel Loops to
produce one or more contracts with Bob Barker Company, Inc. (“Bob Barker”), in
the absence of Bob Barker’s consent, is DENIED without prejudice; Maxill may
renew its motion if efforts to obtain the documents directly from Bob Barker are
unsuccessful.
(i)
Request for Production No. 47: Maxill’s request to compel Loops to
produce all “pleadings or other papers” in Loops LLC v. Phoenix Trading, Inc.,
W.D. Wash. Case No. C08-1064 RSM, is DENIED; information about this case is
publicly available in Westlaw, see, e.g., Loops LLC v. Phoenix Trading, Inc., 2016
WL 6609560 (W.D. Wash. Nov. 9, 2016), as well as through CM/ECF.
(j)
Interrogatory No. 3: Maxill’s request to compel Loops to identify all
lawsuits to which it is or was a party is DENIED because it seeks discovery that is
not proportional to the needs of the case, see Fed. R. Civ. P. 26(b)(1).
(k)
Interrogatory No. 12: Loops has answered this interrogatory, and
Maxill’s request to compel Loops to provide information about Dr. Garsh that it
has indicated it does not possess is DENIED.
(l)
Interrogatory No. 13: Loops is DIRECTED to provide, on or before
May 10, 2019, either (i) the full name and any contact information for individuals
who advised Loops about Bob Barker selling the Accused Products to College
Hospital and/or the juvenile correctional facility in California, or (ii) a summary of
Loops’s efforts to attempt to locate such information.

(4)
Except as granted in Paragraphs 2 and 3, above, the LCR 37 submissions
14 are DENIED. The Court DECLINES to award attorneys’ fees or costs in connection with
either of the parties’ LCR 37 submissions.
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(5)
In light of the Court’s rulings, the expert disclosure deadline is sua sponte
16 EXTENDED from May 24, 2019, to June 28, 2019, and the rebuttal expert disclosure
deadline is EXTENDED from June 24, 2019, to July 26, 2019. The fact discovery
17 deadline remains August 1, 2019, but experts may be deposed until August 30, 2019.
A new deadline is hereby imposed for motions related to expert witnesses (e.g., motions
18 pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and its progeny);
such motions shall be filed by October 10, 2019, and noted on the motions calendar no
19 later than the third Friday thereafter (see LCR 7(d)(3)). The Agreed Pretrial Order, which
is due on January 10, 2020, shall be filed in the Case Management and Electronic Case
20 Filing (CM/ECF) system, and shall also be attached as a Word compatible file to an
e-mail sent to the following address: [e-mail]. Notwithstanding
21 Local Civil Rule 16.1, the exhibit list shall be prepared in table format with the following
columns: “Exhibit Number,” “Description,” “Admissibility Stipulated,” “Authenticity
22 Stipulated/Admissibility Disputed,” “Authenticity Disputed,” and “Admitted.” The latter
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1 column is for the Clerk’s convenience and shall remain blank, but the parties shall
indicate the status of an exhibit’s authenticity and admissibility by placing an “X” in the
2 appropriate column. Duplicate documents shall not be listed twice; once a party has
identified an exhibit in the pretrial order, any party may use it. All other terms and
3 conditions, and all dates and deadlines not inconsistent herewith, set forth in the Minute
Order entered August 30, 2018, docket no. 23, shall remain in full force and effect.
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(6)
The Clerk is directed to send a copy of this Minute Order to all counsel of
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Dated this 3rd day of May, 2019.

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William M. McCool
Clerk

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s/Karen Dews
Deputy Clerk

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MINUTE ORDER - 5