Grasshopper Motorcycles, Ltd. v. Rivera, Tim

Filing 29

ORDER granting 22 Motion to Compel. Defendant must provide full and complete responses to plaintiff's discovery demands not later than December 5, 2014. Signed by Magistrate Judge Stephen L. Crocker on 11/14/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

GRASSHOPPER MOTORCYCLES, LTD.,
ORDER
Plaintiff,
v.

14-cv-320-slc

TIM RIVERA d/b/a Better Built Backrests,
Defendant.

_____________________________________________________________________________________
Plaintiff Grasshopper Motorcycles, Ltd. has brought claims against defendant Tim Rivera
d/b/a Better Built Backseats for trade dress infringement and unfair competition under § 43(a)
of the Lanham Act, 15 U.S.C. § 1125(a), W is. Stat. § 100.18 and W isconsin common law.
Rivera is representing himself in this case. Now before the court is plaintiff’s motion to compel
discovery. Dkt. 22. Specifically, plaintiff asks for an order compelling defendant to provide
appropriate responses to Plaintiff’s First Set of Requests for Production of Documents and First
Set of Interrogatories (the “Discovery Demands”) that were served on him on July 25, 2014.
These requests seek information about how defendant developed and promoted his product and
the costs associated with doing so.
Defendant answered the discovery requests by supplying print-outs of his PayPal account
activity, his Ebay account activity, his webpages and his Craigslist postings. Dkt. 24, exh. B. See
also dkts. 19 and 20. On September 11, 2014, counsel for plaintiff—who in the meantime had
changed law firms—sent a letter to defendant that explained in great detail why his responses
were inadequate and the kinds of additional documents or information that would satisfy the
discovery requests. Id., exh. C. Counsel told defendant that he should “not hesitate” to call her
to discuss the matter, noting that she had switched law firms and her new contact information
was at the top of the letter. Id.
Defendant responded by stating that he had “no idea who Quarles & Brady LLP is” and
would not send anything. Counsel replied by explaining that she had merely changed firms and

was still representing Grasshopper and that defendant needed to address her concerns about his
discovery responses; she suggested that the two talk by phone. Over the course of a few more
email exchanges, defendant remained adamant that he would not communicate with anyone
other than Murphy & Desmond (counsel’s former law firm) and would not produce any more
discovery unless ordered to do so by the judge.
In his response to the motion to compel, defendant now appears to be satisfied that
plaintiff’s counsel is affiliated with the Quarles & Brady law firm and that this law firm is
authorized to communicate with him about this case. However, defendant maintains the same
uncooperative tone, accusing plaintiff’s counsel of unprofessional conduct and asserting generally
that plaintiff’s discovery requests are “unreasonable.” Apart from some objections regarding tax
returns, however, defendant does not say why the requests are unreasonable or explain what
efforts he has made to answer them beyond supplying the above-described on-line account
information.
Defendant’s uncooperative conduct so far in this case is unfortunate. Nobody asks to be
sued, but once a lawsuit starts and a party is brought into federal court, that party is subject to
the rules governing civil lawsuits, and if he fails to follow the rules or just does nothing and hopes
that it will all go away, then things will only get worse for him.
plaintiff’s requests aren’t unreasonable.

In this particular lawsuit,

Defendant needs to start cooperating with plaintiff and

providing the information it seeks, and he needs to do so immediately.
Defendant should start by reviewing plaintiff’s discovery requests and counsel’s detailed
follow-up letter from September 11, 2014.

Then, defendant must answer each and every

question and document request and provide the relevant documents to the best of his ability.
This needs to be done not later than December 5, 2014. If defendant has questions about why
plaintiff wants a particular document or the kinds of documents that might be relevant, then he

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should email or call plaintiff’s counsel and let her know his questions or concerns. This is called
a “meet and confer”— something commonly done between adversaries in a lawsuit. (Plaintiff’s
lawyer has attempted various times to help defendant meet his discovery obligations and I have
no reason to believe she will not continue to do so, provided defendant treats her with the proper
courtesy and respect.) If, after conferring, the parties cannot resolve their difference on their own
despite their best efforts, then either side can ask the court to intervene. (For more specifics on
how to do this, defendant should re-read the pretrial conference order and Federal Rule of Civil
Procedure 26(c).) That’s what happened here, and that’s why the court is issuing this order
regarding defendant’s obligation to provide better discovery responses.
I will address two specific concerns raised by defendant’s response: first, defendant seems
to object to requests for information going back to 2009, on the ground that he did not start
selling backrests until 2014. That is not a legitimate objection. Plaintiff is entitled to discover
information that is directly relevant or that may lead to the discovery of relevant evidence.
Clearly, defendant began designing, developing or planning to sell his backrests before he actually
made his first sale in 2014, and plaintiff is entitled to discover records from that time period. A
period of five years before defendant started making sales is not unreasonable and it is not unduly
burdensome. Obviously, defendant can only produce records that he actually has, so it may be
that he has no records from, say 2009 or 2010.

However, to comply with his discovery

obligations, he still must look for such records and produce them if he has them.
Second, defendant says he has no tax returns from his company because it was just started
this year. As for his personal tax returns, defendant reports that he has not filed his tax returns
for 2013 yet. He also asserts that his 2012 and still-to-be-filed 2013 tax returns are joint tax
returns filed with his ex-wife, who will not allow him to disclose her financial information.
Defendant should discuss these issues with plaintiff’s counsel, who may have suggestions about

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how to deal with defendant’s ex-wife’s objections or whether there are other documents that could
satisfy this discovery request. For the purposes of this order, however, defendant is advised that
he must produce copies of any personal or business tax returns that he has filed for the years
2009-2014.
Two additional matters remain.

First, plaintiff asks that its expert be allowed to

supplement his expert report in the event defendant provides discovery responses that affect the
expert’s conclusions. This request is granted.
Second, plaintiff asks the court to order defendant to pay plaintiff’s attorney fees and
expenses incurred in bringing this motion, as required by Federal Rule of Civil Procedure
37(a)(5)(A). I decline to enter such an order on the ground that it would be unjust to do so,
given plaintiff’s status as a pro se defendant. But this is defendant’s only pass. If he continues to
disregard plaintiff’s requests or if he fails to make genuine and adequate efforts to comply with
his discovery obligations in this lawsuit, so that plaintiff has to bring another motion, then this
court will have no choice but to order him to pay plaintiff’s expenses. Further, if defendant fails
to obey this order, then he may face even more severe sanctions, ranging from an order directing
that certain facts be found against him to an order of default judgment in favor of plaintiff. Fed.
R. Civ. P. 37(b)(2)(A). This means that if defendant continues to fail to provide discovery, then
he could lose this entire lawsuit by forfeit, and this court could enter an enforceable judgment
requiring defendant to pay the damages claimed by plaintiff solely on the grounds that defendant
failed to obey court orders and failed to provide discovery. The court is hopeful that we don’t
get there from here, but this court has entered default judgments against uncooperative parties
in bigger lawsuits than this one and it will not hesitate to do so here if it turns out to be
necessary.

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ORDER
IT IS ORDERED that plaintiff Grasshopper Motorcycles, Ltd.’s motion to compel
discovery, dkt. 22, is GRANTED. Defendant must provide full and complete responses to
plaintiff’s discovery demands not later than December 5, 2014.

Entered this 13 th day of November, 2014.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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