HP Tuners, LLC v. Sykes-Bonnett et al

Filing 98

ORDER on Parties' Motions by Judge Benjamin H. Settle. Trial date and associated deadlines terminated. New abbreviated order to issue on trial date of April 30, 2018. (TG)

1
2
3
4
5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

6
7
8

HP TUNERS, LLC,

CASE NO. C17-5760 BHS
Plaintiff,

9

v.

10

KEVIN SYKES-BONNETT, et al.,

11

ORDER ON THE PARTIES’
VARIOUS MOTIONS

Defendants.

12
13

This matter comes before the Court on Plaintiff HP Tuners, LLC’s (“HPT”)

14

motion for relief to modify expert disclosure deadlines (Dkt. 53), motion to compel and

15

for sanctions and to modify scheduling order (Dkt. 64), and motion for temporary

16

restraining order and preliminary injunction (Dkt. 69); and Defendants Kevin Sykes-

17

Bonnett (“Sykes-Bonnett”), Syked ECU Tuning Incorporated, and John Martinson’s

18

(collectively “Defendants”) emergency motion for temporary restraining order (Dkt. 69).

19

The Court has considered the pleadings filed in support of and in opposition to the

20

motions, oral argument of counsel, and the remainder of the file and hereby rules as

21

follows:

22

ORDER - 1

1

I.

PROCEDURAL HISTORY

On August 29, 2018, the Court held oral argument on the four pending motions

2
3

referenced above. Dkt. 87. At the conclusion of the hearing, the Court ordered the

4

parties to file an agreed order reflecting the issues discussed. Dkt. 88 at 61. On

5

September 10, 2018, each side filed a proposed order because the parties were unable to

6

agree on certain issues. Dkts. 93, 94. The parties did not submit any additional

7

explanation for the remaining disputed issues.
II. DISCUSSION

8
9

A.

Extending Deadlines
The parties were able to agree to continue the trial date to the end of April 2019

10
11

and to extend relevant deadlines according to the new trial date. Dkts. 93 at 7–8, 94 at 5–

12

6. The Court finds that good cause exists to strike the current scheduling order and

13

continue trial to April 30, 2019. Therefore, the Court grants the motions on these issues.

14

B.

15
16
17
18
19
20
21

Defendants’ Motion
Regarding Defendants’ motion, HPT contends that the motion should be denied,

Dkt. 93, ¶ 10, and Defendants fail to address the issue. On the record, the Court
concluded that Defendants’ motion addressed discovery issues instead of an emergency
issue that required immediate injunctive relief. Dkt. 86 at 38. The Court then discussed
each of Defendants’ discovery requests with HPT’s attorney. Id. at 38–53. As set forth
in that discussion, the Court granted in part and denied in part Defendants’ discovery
requests. To the extent Defendants seeks additional relief on these issue, they must file

22

ORDER - 2

1

an appropriate motion. Thus, the Court finds no need to provide any further ruling on

2

Defendants’ discovery requests and denies the request for injunctive relief.

3

C.

4

HP’s Motions
The parties reached agreement on a number of issues. After setting forth the

5

agreed issues, the Court will address the remaining disputed issues. First, the parties

6

agreed as follows:

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

Defendants, as well as each of their agents, and all persons acting in
concert with any of them, are hereby immediately restrained from, directly
or indirectly, using, accessing, distributing, disseminating, transferring,
copying or otherwise referencing HPT’s key generator program and tool;
Defendants, as well as each of their agents, and all persons acting in
concert with any of them, are hereby immediately restrained from, directly
or indirectly, using, accessing, distributing, disseminating, transferring,
copying or otherwise referencing any HPT programs, software, electronic
file folders, files or information obtained or received from Ken Cannata or
any third party;
Defendants, as well as each of their agents, and all persons acting in
concert with any of them, shall immediately return to HPT any and all
originals and copies of the Flash Drive, the HPT key generator program and
tool and all HPT programs, software, electronic file folders or files in their
possession, custody or control if such continues to exist in any form or
manner whatsoever;
Defendants, as well as each of their agents, and all persons acting in
concert with any of them, shall immediately return to HPT any and all HPT
interfaces in their possession, custody or control and, prior to returning said
interfaces being returned to HPT, Defendants shall not take any action to
modify, manipulate, damage or the interfaces being returned to HPT;
Defendants, as well as each of their agents, and all persons acting in
concert with any of them, are immediately restrained from, directly or
indirectly, publicly releasing HPT’s programs, software, electronic file
folders, files or information in any manner whatsoever;
Defendants, as well as each of their agents, and all persons acting in
concert with any of them, are immediately restrained from, directly or
indirectly, providing HPT’s programs, software, electronic file folders, files
or information to any third party in any manner whatsoever;

22

ORDER - 3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

Within five (5) business days of the entry of this Order, each
Defendant shall provide a Declaration, under penalties of perjury under 28
U.S.C. § 1746, to HPT which:
specifically details any and all programs, software,
electronic file folders, files or information of HPT that was
provided to each particular Defendant by Ken Cannata or any
other third party;
specifically details the time, place, location and
particulars of the destruction of (i) all originals and copies of
the Flash Drive and/or (ii) all originals and copies of HPT’s
programs, software, electronic file folders or files that were in
the possession, custody or control of Defendants including
but not limited to detailed information concerning the
specifics of what was destroyed and the identity of any
witnesses to said destruction and also including when, how
and where all of said materials and information were
destroyed;
certifies that: (i) all originals and copies of the Flash
Drive and (ii) all originals and copies of HPT’s programs,
software, electronic file folders or files in possession, custody
and/or control of Defendants have been destroyed and/or
returned to HPT, and if Defendant cannot certify to the
foregoing, Defendant shall provide specific details and
particulars concerning (i) any originals or copies of the “Flash
Drive” and/or (ii) any originals and copies of HPT’s
programs, software, electronic file folders or files which have
not been destroyed and/or returned;
certifies that Defendant is not in possession, custody or
control of (i) any originals or copies of the “Flash Drive” or
(ii) any originals and copies of HPT’s programs, software,
electronic file folders or files, and if Defendant cannot certify
to the foregoing, Defendant shall provide specific details and
particulars concerning Defendant’s possession, custody or
control of (i) any originals or copies of the “Flash Drive”
and/or (ii) any originals and copies of HPT’s programs,
software, electronic file folders or files;
certifies that Defendant is not aware of the location or
whereabouts of (i) any originals or copies of the “Flash
Drive” or (ii) any originals and copies of HPT’s programs,
software, electronic file folders or files, and if Defendant
cannot certify to the foregoing, Defendant shall provide
specific details and particulars concerning the location or
whereabouts of (i) any originals or copies of the “Flash

ORDER - 4

1

Drive” and/or (ii) any originals and copies of HPT’s
programs, software, electronic file folders or files; and
certifies that Defendant did not copy, transfer, save,
load, download and/or store (i) any originals or copies of the
“Flash Drive” or (ii) any originals and copies of HPT’s
programs, software, electronic file folders or files onto any
computer, device, hard drive and/or storage device at any
time, and if Defendant cannot certify to the foregoing,
Defendant shall provide specific details and particulars
concerning the computer, device, hard drive and/or storage
device on which (i) any originals or copies of the “Flash
Drive” or (ii) any originals and copies of HPT’s programs,
software, electronic file folders or files were copied,
transferred, saved, loaded, downloaded and/or stored.

2
3
4
5
6
7
8

Dkts. 93, ¶¶ 1–5, 7, 8, 9(a)–9(e), 9(h); 94 ¶¶ 1–7, 8(a)–8(f). To the extent that the parties
9
agree to this relief, the Court finds that such relief is warranted. Thus, the Court grants in
10
part HPT’s motion for injunctive relief as set forth above.
11
Second, the parties disagree on three remaining issues. The first disputed issue is
12
the Court’s ruling on HPT’s motion to compel and for sanctions and modify scheduling
13
order. Dkt. 64. HPT contends that the Court granted the portion of the motion relating to
14
the request to compel Defendants’ production of discovery. Dkt. 93 at 7 n.1. The Court
15
has reviewed the transcript and disagrees with HPT’s contention. The majority of the
16
discussion revolved around the production of source code and the possibility of
17
appointing a third-party expert to compare each party’s code. Thus, the discovery and
18
sanction issues remain pending. HPT requests that the Court address these issues in a
19
telephone conference. Id. The Court denies this request. Instead, the Court will renote
20
the motion and consider the issues in due course.
21
22

ORDER - 5

1

The second disputed issue is that HPT requests language in Defendants’

2

declaration regarding any defendant giving the relevant “Flash Drive” to third parties.

3

Dkt. 93, ¶¶ 9(f), 9(g). Without any further explanation, the Court has no basis to order

4

this relief. Therefore, the Court denies HPT’s requested relief without prejudice.

5

The final “disputed” issue should not be disputed. HPT requests that Defendants

6

“immediately return HPT’s E38 Harness to HPT in working order which was provided to

7

Defendants by Ken Cannata.” Dkt. 93, ¶ 6. Although Defendants’ attorney conceded

8

that Sykes-Bonnett is ready to return a cable to HPT, it is unclear whether he was

9

referring to a cloned cable or an HPT E38 Harness. This seems to be an easy issue to

10

resolve. Whether through formal discovery or informal cooperation, HPT should

11

establish whether Defendants are in possession of the HPT E38 Harness provided by Mr.

12

Cannata. If they are in possession of this particular harness, then it seems to be a rational

13

economic decision to return the approximately $100 harness instead of paying counsel to

14

engage in formal motion practice seeking protection from the Court. Defendants,

15

however, have a right to oppose discovery and/or injunctive relief. To the extent an issue

16

remains, it is unclear whether Defendants actually possess this cable. Therefore, the

17

Court denies HPT’s requested relief without prejudice.

18

III. ORDER

19

Therefore, it is hereby ORDERED that

20

1.

21

GRANTED;

22

ORDER - 6

HPT’s motion for relief to modify expert disclosure deadlines (Dkt. 53) is

1

2.

HPT’s motion to compel and for sanctions and to modify scheduling order

2

(Dkt. 64) is GRANTED in part and RENOTED in part for consideration on the

3

Court’s October 5, 2018 calendar;

4
5

3.

HPT’s motion for temporary restraining order and preliminary injunction

(Dkt. 69) is GRANTED in part and DENIED in part as stated herein;

6

4.

7

DENIED; and

8

5.

9
10

Defendants’ emergency motion for temporary restraining order (Dkt. 69) is

The current scheduling order is STRICKEN, and the Clerk shall issue a

new, abbreviated schedule based on a trial date of April 30, 2019.
Dated this 18th day of September, 2018.

A

11
12

BENJAMIN H. SETTLE
United States District Judge

13
14
15
16
17
18
19
20
21
22

ORDER - 7