Runway TV v. DeGray
Runway TV v. DeGray
2020 WL 67122533 (C.D. Cal. 2020)
September 15, 2020
Chooljian, Jacqueline, United States Magistrate Judge
Summary
The court granted the plaintiff's motion to compel the defendant to produce ESI relevant to the case. The court also issued a Protective Order to ensure that the ESI is adequately protected. The court did not make any specific rulings regarding the ESI, but noted that the motions were not in the form of joint stipulations.
Runway TV, LLC
v.
Eurl Eleonora De Gray, et al
v.
Eurl Eleonora De Gray, et al
Case No. 2:18-cv-02503-FMO-JC
United States District Court, C.D. California
Filed September 15, 2020
Counsel
William David Goldstein, Law Offices of William D. Goldstein, Ben T. Lila, Joseph A. Mandour, III, Mandour and Associates APC, Los Angeles, CA, for Runway TV, LLC.Eleonora DeGrey, Paris, France, pro se.
Chooljian, Jacqueline, United States Magistrate Judge
ORDER (1) GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL RESPONSES TO REQUEST FOR IDENTIFICATION AND PRODUCTION OF DOCUMENTS, SET 1 WITHOUT OBJECTIONS (DOCKET NO. 94); AND (2) GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL CLEAR AND CONCISE RESPONSES TO REQUESTS FOR ADMISSION, SET 1 WITHOUT FURTHER OBJECTIONS (DOCKET NO. 95)
I. BACKGROUND AND SUMMARY
*1 On July 30, 2018, plaintiff Runway TV, LLC filed the operative First Amended Complaint (“Complaint”) against French Company Eurl Eleonora De Gray (“De Gray LLC”) and French citizen, Eleonora De Gray, also known as Eleonora Christensen (“Ms. De Gray” or “defendant”) (collectively “defendants”). (Docket No. 35). The Complaint asserts claims of Federal Trademark Infringement, Federal Trademark Dilution, Federal Statutory Unfair Competition, Fraud and Deceit, Breach of Contract, Cyberpiracy and Defamation Per Quod-Libel. On August 1, 2018, Ms. De Gray filed an Answer to the First Amended Complaint. (Docket No. 40).[2]
On August 28, 2018, plaintiff electronically sent to Ms. De Gray (1) Plaintiff's Requests for the Identification and Production of Documents and Things (Set 1) (“RFPs”); and (2) Plaintiff's Requests for Admission (Set 1) (“RFAs”).
On November 5, 2018, this Court issued an order (“November Order”) granting in part and denying in part plaintiff's motions to compel relative to the RFPS and the RFAs, directed defendant to respond to the RFPs and RFAs in a manner consistent with the requirements of the law set forth in the November Order by not later than November 26, 2018, denied plaintiff's sanctions requests but cautioned Ms. De Gray that the failure to respond to the discovery requests in issue in conformity with the law and/or the failure to comply with the November Order may result in the imposition of sanctions against her, and admonished her relative to her interactions with defense counsel. (Docket No. 73).
On November 25, 2018, Ms. De Gray served responses to the RFPs and the RFAs which plaintiff viewed to be deficient. Such parties thereafter exchanged multiple communications but were unable to resolve their differences.
Currently pending before this Court are plaintiff's (1) Motion to Compel Responses to Request for Identification and Production of Documents Set 1 without Objections (“RFP Motion”); and (2) Motion to Compel Clear and Concise Responses to Requests for Admission Set 1 without Further Objections (“RFA Motion”) (collectively “Motions”), both of which Ms. De Gray opposes. (Docket Nos. 94-95, 98-100, 103-04).[3] The RFP Motion essentially requests that defendant be ordered to produce documents responsive to RFP Nos. 1-14 (“RFPs in Issue”). The RFA Motion essentially requests that defendant be ordered to provide further responses to RFA Nos. 1, 4, 5, 7-11, 13, 15 and 18-29 (“RFAs in Issue”).[4] (The RFPs in Issue and the RFAs in Issue will collectively be referred to as the “Discovery Requests in Issue.”). The Motions also request that Ms. De Gray be ordered to pay sanctions and Ms. De Gray's oppositions contain her cross-request for sanctions against plaintiff.
*2 For the reasons explained below and as detailed below, the Motions are granted in part and denied in part, the cross-requests for sanctions are denied, and the Court concurrently issues a Protective Order due to privacy/foreign law considerations.
II. PERTINENT LAW
Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Information within the foregoing scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1).
Pursuant to Rule 34, any party may serve on any other party a request for the production or inspection of documents within the scope of Rule 26(b). Fed. R. Civ. P. 34(a). Unless excused by a protective order, in response to a request for the production of documents a party must, within 30 days of service thereof and as to each item or category, either: (1) state that the inspection will be permitted/ production will be made; or (2) state with specificity the grounds for objecting to the request, including the reasons, and state whether any responsive materials are being withheld on the basis of that objection. Fed. R. Civ. P. 34(b)(2)(A)-(C). Pursuant to Local Rule 34-2, the party responding or objecting to the requests for production shall quote each request for production in full immediately preceding the statement of any response or objection thereto. Local Rule 34-2. If the responding party states that it will produce documents, such production must be completed no later than the time specified in the request or another reasonable time specified in the response. Fed. R. Civ. P. 34(b)(2)(B). A party's failure to respond to a Rule 34 request is not excused on the ground that the discovery sought is objectionable, unless the party failing to act has a pending motion for a protective order. Fed. R. Civ. P. 37(d)(2).
Pursuant to Rule 36, a party may serve on any other party requests for admissions to obtain any evidence within the permissible scope of discovery. Fed. R. Civ. P. 26(b)(1), 36(a). Requests for admissions are required to be simple and direct, and should be limited to singular relevant facts. See Securities and Exchange Commission v. Micro-Moisture Controls, Inc., 21 F.R.D. 164, 166 (S.D.N.Y. 1957); see also Dubin v. E.F. Hutton Group, Inc., 125 F.R.D. 372, 376 (S.D.N,Y. 1989) (objections to requests for admissions as vague, ambiguous, overbroad and burdensome sustained where requests for admissions not simple concise statements of fact, but instead contained vague and ambiguous wording that did not allow defendants fairly to admit or deny). A request for admission may seek an admission of the genuineness of documents if copies of the documents are attached to the request or have been previously furnished or made available for inspection and copying. Fed. R. Civ. P. 36(a)(2). A party may properly seek to have another part admit or deny a responding party's understanding of the meaning of a document. See Booth Oil Site Admin. Group v. Safety-Kleen Corp., 194 F.R.D. 76, 80 (W.D.N.Y 2000). A request for admission may also request “the application of law to fact.” Fed. R. Civ. P. 36(a)(1)(A); see Marchand v.Mercy Medical Center, 22 F.3d 933, 937 n.4 (9th Cir. 1994) (“Rule 36(a) permits requests for admission addressing questions of mixed law and fact.”) (citation omitted). A request for admission may not, however, seek a response on a disputed conclusion of pure law. See Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 2d 1050, 1057 (S.D. Cal. 1999).
*3 A matter is admitted unless, within 30 days after being served, the party to whom a request for admission is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. Fed. R. Civ. P. 36(a)(3).[5] Pursuant to Local Rule 36-2, the party answering or objecting to requests for admission shall quote each request in full immediately preceding the statement of any answer or objection thereto. Local Rule 36-2. An answer to a request for admission must consist of an admission, a denial, or a statement detailing why the answering party is unable to admit or deny the matter. Fed. R. Civ. P. 36(a)(3), 36(a)(4). If any portion of a request for an admission is true, the party to whom it is directed must admit that portion and qualify or deny the rest. Fed. R. Civ. P. 36(a)(4); see Holmgren v. State Farm Mutual Insurance Co., 976 F.2d 573, 579-80 (9th Cir. 1992). A denial must be specific and must fairly respond to the substance of the matter. Fed. R. Civ. P. 36(a)(4). Where the meaning of a particular term in a request is somewhat inexact, the responding party should supply its own definition and admit or deny, or qualify its admission or denial to make it accurate and responsive. See S.A. Healy Co./Lodigiani USA, Ltd. v. United States, 37 Fed. Cl. 204, 205-07 (Fed. Cl. 1997). A qualified denial is proper if the responding party sets forth in detail the reasons why he or she cannot truthfully deny the matter. Fed. R. Civ. P. 36(a)(4). A party who responds by claiming an inability to admit or deny must also state that he or she has made “reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.” Fed. R. Civ. P. 36(a)(4); Asea, Inc. v. Southern Pacific Transportation Co., 669 F.2d 1242, 1245-47 (9th Cir. 1981); A. Farber & Partners, Inc. v. Garber, 237 F.R.D. 250, 253-55 (C.D. Cal. 2006). What constitutes “reasonable inquiry” and what material is “readily obtainable” are relative matters that depend upon the facts of each case. T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co., Inc., 174 F.R.D. 38, 43 (S.D.N.Y. 1997). Generally, “reasonable inquiry” for purposes of responding to requests for admission, is limited to review and inquiry of those persons and documents that are within the responding party's control. Id. at 43. A party cannot be forced to admit or deny facts testified to by a third party as to which the responding party has no personal knowledge. Id. at 46. The validity, or bona fides of a qualified answer to a request for admission must await trial to see if the requesting party is forced to prove what was not admitted and can show that there was no good reason for the opponent's failure to admit. National Semiconductor Corp. v. Ramtron International Corp., 265 F. Supp. 2d 71, 74-75 (D. D.C. 2003).
If a party fails timely to object to discovery requests, such a failure constitutes a waiver of any objections which a party might have to the requests. See Richmark Corp. v. Timber Falling Consultants (“Richmark”), 959 F.2d 1468, 1473 (9th Cir. 1991) (“It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection.”) (citation omitted), cert. dismissed, 506 U.S. 948 (1992); Apple Inc. v. Samsung Electronic Co., Ltd., 2012 WL 952254, *2 (N.D. Cal. Mar. 20, 2012) (“Objections not interposed in a timely initial response may not be held in reserve and interposed after the period allowed for response ... ”) (citation omitted); Ramirez v. County of Los Angeles, 231 F.R.D. 407, 409-10 (C.D. Cal. 2005) (court declined to consider objections that were not asserted in responding party's original discovery responses based upon party's failure timely to make such objections).[6]
III. DISCUSSION[7]
*4 Multiple issues and objections are common to the Discovery Requests in Issue. This Court initially addresses such issues and objections and then addresses the individual Discovery Requests in Issue.
A. Objections Common to Multiple Discovery Requests in Issue
First, defendant's general objections which have been incorporated into multiple responses to the Discovery Requests in Issue are overruled because such general and boilerplate objections are improper and unsupported. See A. Farber & Partners, Inc. v. Garber (“Farber”), 234 F.R.D. 186, 188 (C.D. Cal. 2006). Such objections do not explain or analyze on an individualized basis why each particular Discovery Request in Issue is objectionable and are therefore inadequate.
Second, defendant objects to multiple Discovery Requests in Issue because the Complaint and First Amended Complaint assertedly have not properly been served on Ms. De Gray and/or De Gray LLC. The Court overrules such objections. The District Court authorized plaintiff to serve defendants via email. (Docket No. 92). The record reflects that plaintiff served defendants via email on September 16, 2019. (Docket No. 93). As noted above, the District Court directed the entry of default as to De Gray LLC on January 27, 2020. (Docket No. 117). The District Court has further rejected Ms. De Gray's efforts to have this action dismissed against her. (See e.g., Docket Nos. 92, 132).
Third, defendant's relevance and overbreadth objections are sustained in part and overruled in part. To the extent the Court has ordered defendant to produce discovery over a relevance/overbreadth objection below, it has determined, after considering the factors set forth in Rule 26(b)(1), that the Discovery Requests in Issue call for relevant information that is proportional to the needs of the case. To the extent the Court has denied or narrowed Discovery Requests in Issue as to which a relevance/ overbreadth objection has been asserted, it has sustained such objections.
Fourth, defendant interposes multiple objections to the Discovery Requests in Issue based on foreign law (e.g., European Union privacy laws, French Penal Code No. 80-538). “It is well settled that [foreign] statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute.” Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for S. Dist., 482 U.S. 522, 544 n.29 (1987); see also Richmark, 959 F.2d at 1474; United States v. Vetco, Inc., 691 F.2d 1281, 1287 (9th Cir.), cert. denied, 454 U.S. 1098 (1981). Rather, a foreign state's interests “must be balanced against the interests of the United States and the plaintiffs in obtaining the information.” Richmark, 959 F.2d at 1473. In determining whether to permit discovery under the Federal Rules of Civil Procedure, courts are to balance the following factors: (1) the importance to the litigation of the documents or other information requested; (2) the degree of specificity of the request; (3) whether the information originated in the United States; (4) the availability of alternative means of securing the information; (5) the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located; (6) the extent and the nature of the hardship that inconsistent enforcement would impose upon the person; and (7) the extent to which enforcement by action of either state can reasonably be expected to achieve compliance with the rule prescribed by that state. Aerospatiale, 482 U.S. at 544, n.28; Richmark, 959 F.2d at 1475. Taking all of the above Aerospatiale and Richmark factors into consideration, the Court concludes that discovery under the Federal Rules of Civil Procedure should govern. The documentation requested by plaintiff from defendant which the Court has ordered produced is identified with sufficient specificity, is highly relevant and important to the litigation, does not, for the most part, appear to be readily available elsewhere, and can be disclosed in such a manner that satisfies the policies of both United States and French law. Accordingly, plaintiff's foreign law based objections to the Discovery Requests in Issue are overruled.
*5 Fifth, defendant objects to certain Discovery Requests in Issue because they assertedly seek information regarding business activities that took place outside the United States and are beyond the jurisdiction of California as assertedly already determined by the Court. Although the prior determination of the Court to which plaintiff refers is not clear, such objections are best viewed as a combination of relevance objections and foreign law based objections. The Court's rulings above relative to such objections are incorporated herein.
Sixth, defendant's privacy/third party privacy objections are sustained in part and overruled in part. Questions of privilege that arise in the course of the adjudication of federal rights are governed by the principles of federal common law. United States v. Zolin, 491 U.S. 554, 562 (1989) (citing Federal Rules of Evidence 501). Where, as in this case, a federal question claim and pendent state law claims are present, federal law on privilege, not state law applies. Agster v. Maricopa County, 422 F.3d 836, 839 (9th Cir.), cert. denied, 546 U.S. 958 (2005).[8] Federal courts ordinarily recognize a constitutionally based right of privacy that can be raised in response to discovery requests. Farber, 234 F.R.D. at 191. Courts balance the need for the information sought against the privacy right asserted. Id. Here, to the extent the Court below has ordered defendant to produce discovery over her privacy/third party privacy objections, it has determined that the privacy right asserted is outweighed by plaintiff's need for the information and that such information can be adequately protected by the concurrently issued Protective Order. Farber, 234 F.R.D. at 191 (privacy concerns can be addressed by carefully drafted protective order); CEH, Inc. v. FV “Seafarer”, 153 F.R.D. 491, 499 (D.R.I. 1994) (“[W]hile a party does have an interest in nondisclosure and confidentiality of its financial records, this interest can be adequately protected by a protective order.”).
Seventh, defendant's privilege objections are overruled as defendant has failed to meet her burden to demonstrate that the information sought is privileged. Pursuant to Fed.R. Civ. P. 26(b)(5)(A), when a party withholds otherwise discoverable information by claiming that it is privileged, the party is required to make that claim expressly and to describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged, will enable the other party to assess the applicability of the privilege. Defendant has not done so.
Eighth, defendant objects to multiple Discovery Requests in Issue because they seek the production of copyrighted materials. The Court overrules such objections. Defendant cites no authority for the proposition that the copyrighted nature of material/information affords a basis to withhold the production of the same in a lawsuit.
Ninth, defendant's objection that certain of the Discovery Requests in Issue use “undefined terms” or are otherwise “vague and ambiguous” are overruled, because the Court does not finds the requests or terms to be vague and ambiguous, particularly when the terms in issue are read in context. In any event, to the extent defendant views terms used in the requests to be vague and ambiguous, defendant can qualify her responses by including her understanding of the terms in issue.
*6 Tenth, defendant objects to certain Discovery Requests in Issue as being unduly burdensome. The Court overrules such objections as they are conclusory and/or unsupported and/or otherwise deemed to be lacking in merit. See Farber, 234 F.R.D. at 188 (collecting cases).
Finally, to the extent the Court has ordered defendant to produce discovery over one or more objections that is/are not specifically addressed above, the Court has overruled such objection(s).
B. RFP Motion
As noted above, the RFP Motion requests that defendant be ordered to produce further responses and documents responsive to RFP Nos. 1-14. As detailed below, the RFP Motion is largely granted but the Court has narrowed certain RFPs in Issue.
As to RFP No. 1 – which essentially calls for defendant to produce a copy of each issue of RUNWAY MAGAZINE published by De Gray LLC or Ms. De Gray – defendant is ordered to produce to plaintiff the responsive documents in her possession, custody or control and a supplemental response reflecting that she has done so.
As to RFP No. 2 – which essentially calls for defendant to produce all communications between defendant and any party at Runway Magazine, Inc. between January 1, 2012 and the date of the response – defendant is ordered to produce to plaintiff all existing responsive documents in her possession, custody or control and a supplemental response reflecting that she has done so.
As to RFP No. 3 – which essentially calls for defendant to produce all communications between defendant and Vincent Mazzotta between January 1, 2012 and the date of the response – defendant is ordered to produce to plaintiff, to the extent she has not already done so and to the extent such documents exist, all responsive documents in her possession, custody control and a supplemental response reflecting that she has done so.
As to RFP No. 4 – which essentially calls for defendant to produce all communications between defendant and James Buccelli between January 1, 2012 and the date of the response – defendant is ordered to produce to plaintiff all responsive documents in her possession, custody or control and a supplemental response reflecting that she has done so.
As to RFP No. 5 – which essentially calls for defendant to produce all documents relating to her application for the Trademark “RUNWAY MAGAZINE” either to the French Government or internationally – defendant is ordered to produce to plaintiff all documents/communications submitted to/received from the French Government and any other government/trademark authority relating to her application(s) for the trademark “RUNWAY MAGAZINE” and a supplemental response reflecting that she has done so.
As to RFP No. 6 – which essentially calls for defendant to produce all documents relating to the Articles of Incorporation (or the French equivalent thereof) for De Gray LLC – defendant is ordered to produce to plaintiff all documents submitted to/received from the French government in connection with establishing/maintaining the existence of De Gray LLC as a legal entity and a supplemental response reflecting that she has done so.
As to RFP No. 7 – which essentially calls for defendant to produce all documents relating to any “partners” of defendant or De Gray LLC in the United States referenced in her Answer (including emails, contracts, agreements and proposals between defendant/De Gray LLC with said partners) – defendant is ordered to produce to plaintiff documents sufficient to identify (by name and contact information) any partners of defendant or De Gray LLC in the United States as referenced in her Answer and documents governing the legal relationship between defendant/De Gray LLC and such partner(s) (such as partnership and profit-sharing agreements) and a supplemental response reflecting that she has done so.
*7 As to RFP No. 8 – which essentially calls for defendant to produce all documents relating to her signing of the Licensing Agreement effective April 1, 2014 between defendant and Runway Beauty, Inc. – defendant is ordered to produce to plaintiff, to the extent she has not already done so, all existing responsive documents in her possession, custody or control and a supplemental response reflecting that she has done so.
As to RFP No. 9 – which essentially calls for defendant to produce all communications between defendant and any third party in which Vincent Mazzotta is mentioned between January 1, 2012 and the date of the response – defendant is ordered to produce to plaintiff, to the extent she has not already done so, all existing responsive documents in her possession, custody or control and a supplemental response reflecting that she has done so.
As to RFP No. 10 – which essentially calls for defendant to produce all communications between defendant and any third party in which James Buccelli is mentioned between January 1, 2012 and the date of the response – defendant is ordered to produce to plaintiff, to the extent she has not already done so, all existing responsive documents in her possession, custody or control and a supplemental response reflecting that she has done so.
As to RFP No. 11 – which essentially calls for defendant to produce all documents relating to the shipment of RUNWAY MAGAZINE to vendors, distributors and/or wholesalers between January 1, 2012 and the date of the response – defendant is ordered to produce to plaintiff to the extent within her possession, custody or control, documents sufficient to reflect (1) the identity (name and contact information) for the referenced vendors, distributors and wholesalers; (2) the number of RUNWAY MAGAZINE(s) shipped/sold to and shipped/sold by each such vendor, distributor and wholesaler on an annual basis; and (3) the costs and profits relative to each such vendor, distributor and wholesaler on an annual basis and a supplemental response reflecting that she has done so.
As to RFP No. 12 – which essentially calls for defendant to produce all documents relating to communications between defendant and vendors of RUNWAY MAGAZINE relating to the RUNWAY [TM] held by Runway TV, LLC between January 1, 2012 and the date of the response – defendant is ordered to produce to plaintiff all existing responsive documents in her possession, custody or control and a supplemental response reflecting that she has done so.
As to RFP No. 13 – which essentially calls for defendant to produce all documents relating to communications between defendant and Google, Inc. (including its online store) concerning the RUNWAY [TM] held by Runway TV, LLC between January 1, 2012 and the date of the response – defendant is ordered to produce to plaintiff all existing responsive documents in her possession, custody or control and a supplemental response reflecting that she has done so.
As to RFP No. 14 – which essentially calls for defendant to produce all documents relating to communications between defendant and Apple, Inc. (including its online store) concerning the RUNWAY [TM] held by Runway TV, LLC between January 1, 2012 and the date of the response – defendant is ordered to produce to plaintiff all existing responsive documents in her possession, custody or control and a supplemental response reflecting that she has done so.
C. RFA Motion
*8 As noted above, the RFA Motion essentially seeks an order compelling defendant to provide further responses to RFA Nos. 1, 4, 5, 7-11, 13, 15 and 18-29. As detailed below, the RFA Motion is granted as to RFA Nos. 1, 4, 7, 8(1), 8(2), 13 and 15 and is denied as to RFA Nos. 5, 9-11, 18-29.
As to RFA No. 1 – which essentially calls for defendant to admit that she is the sole shareholder of De Gray LLC – defendant's objections are overruled and defendant is ordered to provide a supplemental response admitting or denying such RFA without further objection.
As to RFA No. 4 – which essentially calls for defendant to admit that as of the date the RFAs were served upon her, she had filed three requests/motions after the filing of the motion to dismiss for lack of jurisdiction – defendant's objections are overruled and defendant is ordered to provide a supplemental response admitting or denying such RFA without further objection.
As to RFA No. 5 – which essentially calls for defendant to admit that De Gray LLC advertised on its website that it is an American-French magazine produced by Media Group Eleonora De Gray with offices based in Paris (France), New York and Los Angeles, as of July 30, 2018 – defendant asserted multiple objections which are overruled, but, defendant nonetheless responded “Deny.” In light of such denial, no further response is required to this RFA. Although plaintiff disputes the bona fides of defendant's denial, the resolution of such dispute must await trial. See National Semiconductor Corp. 265 F. Supp. 2d at 74-75.
As to RFA No. 7 – which essentially calls for defendant to admit that she signed a license agreement to use the name RUNWAY for a magazine dated April 1, 2014 – defendant's objections are overruled and defendant is ordered to provide a supplemental response admitting or denying such RFA without further objection.
As to RFA No. 8(1) – which essentially calls for defendant to admit that the signed license agreement to use the name RUNWAY for a magazine dated April 1, 2014 lists as the governing law in paragraph 15 Business Terms/Schedule, United States of America – defendant's objections are overruled and defendant is ordered to provide a supplemental response admitting or denying such RFA without further objection.
As to RFA No. 8(2) – which essentially calls for defendant to admit that on page 1, lines 22-23 of the Notice of Motion and Motion to Dismiss under FRCP Rule 12(b)(2) for Lack of Jurisdiction (Docket No. 10), defendant states that defendant has “Partners” in the United States of America – defendant's objections are overruled and defendant is ordered to provide a supplemental response admitting or denying such RFA without further objection.
As to RFA No. 9 – which essentially calls for defendant to admit that a partnership is a for-profit business association of two or more persons – the RFA Motion is denied as it appears to call for a disputed conclusion of pure law.
As to RFA No. 10 – which essentially calls for defendant to admit that a partnership is a legal entity classified in both the United States and the State of California as either a General Partnership or a Limited Partnership – the RFA Motion is denied as it appears to call for a disputed conclusion of pure law.
As to RFA No. 11 – which essentially calls for defendant to admit that a partnership is a consideration under federal law which prohibits a diversity action in any federal court of a state in which a plaintiff and defendant partner are both residents – the RFA Motion is denied as it appears to call for a disputed conclusion of pure law.
*9 As to RFA No. 13 – which essentially calls for defendant to admit that in an email dated March 18, 2014 addressed to Michael Cohen, defendant stated “I strongly believe that international trademarks RUNWAY/RUNWAY MAGAZINE belongs to Vincent, and I strongly believe that we should do everything possible to get USA trademark also back to Vincent. Otherwise scam and fraud will never stop[,]” – defendant's objections are overruled and defendant is ordered to provide a supplemental response admitting or denying such RFA without further objection.
As to RFA No. 15 – which essentially calls for defendant to admit that she registered in France trademarks Runway France/Runway Magazine France after such time as she became aware that the license to use the Runway Magazine [TM] obtained from James Buccelli in February 2012 was fraudulent – defendant's objections are overruled and defendant is ordered to provide a supplemental response admitting or denying such RFA without further objection.
As to RFA No. 18 – which essentially calls for defendant to admit that she has sent emails to parties that do business with Runway TV, LLC that the Plaintiff company is not the real RUNWAY – defendant asserted multiple objections which are overruled, but, defendant nonetheless responded “Deny.” In light of such denial, no further response is required to this RFA. Although plaintiff disputes the bona fides of defendant's denial and suggests that it is inconsistent with the portion of the response which admits that defendant's French Attorney sent emails on defendant's behalf, the resolution of such dispute must await trial. See National Semiconductor Corp., 265 F. Supp. 2d at 74-75.
As to RFA No. 19 – which essentially calls for defendant to admit that she has sent emails to Apple, Inc. related to Plaintiff's App(s) to “Please remove these applications and ban the user permanently or ban these applications from all other territories except USA” – defendant asserted multiple objections which are overruled, but, defendant nonetheless responded “Deny.” In light of such denial, no further response is required to this RFA. Although plaintiff disputes the bona fides of defendant's denial and suggests that it is inconsistent with the portion of the response which admits that defendant's French Attorney sent emails on defendant's behalf, the resolution of such dispute must await trial. See National Semiconductor Corp., 265 F. Supp. 2d at 74-75.
As to RFA No. 20 – which essentially calls for defendant to admit that she has sent emails to Google.com related to Plaintiff's App(s) to “Please remove these applications and ban the user permanently or ban these applications from all other territories except USA” – defendant asserted multiple objections which are overruled, but, defendant nonetheless responded “Deny.” In light of such denial, no further response is required to this RFA. Although plaintiff disputes the bona fides of defendant's denial and suggests that it is inconsistent with the portion of the response which admits that defendant's French Attorney sent emails on defendant's behalf, the resolution of such dispute must await trial. See National Semiconductor Corp., 265 F. Supp. 2d at 74-75.
As to RFA No. 21 – which essentially calls for defendant (referred to as “YOU,” a term defined to encompass, among others, those acting on her behalf), to admit that she has sent emails to GoDaddy.com related to Plaintiff's RUNWAY FRANCE website that it infringes on the RUNWAY MAGAZINE FRANCE intellectual property – defendant responded that she “admits that French Attorney on behalf of Defendant sent email to GoDaddy.com related to the Plaintiff's RUNWAY FRANCE website that it infringes on the RUNWAY FRANCE/RUNWAY MAGAZINE FRANCE intellectual property – trademarks registered by Defendant in November 2013. Plaintiff registered this domain in 2014 and uses to post defamatory content about Defendant, with disregard that Plaintiff has no trademarks registered under name RUNWAY FRANCE/RUNWAY MAGAZINE FRANCE.” The first part of defendant's answer is responsive. Although the remaining portion of the response is surplusage, the Court denies the RFA Motion as to RFA No. 21, but does so without prejudice to any relief which the District Judge may deem appropriate if/when a party actually seeks to admit this response into evidence.
*10 As to RFA No. 22 – which essentially calls for defendant to admit that she has sent emails to LinkedIn related to Plaintiff's RUNWAY [TM] that it infringes on the RUNWAY MAGAZINE intellectual property – defendant asserted multiple objections which are overruled, but, defendant nonetheless responded “Deny.” In light of such denial, no further response is required to this RFA. Although plaintiff disputes the bona fides of defendant's denial and suggests that it is inconsistent with the portion of the response which admits that defendant's French Attorney sent emails on defendant's behalf, the resolution of such dispute must await trial. See National Semiconductor Corp., 265 F. Supp. 2d at 74-75.
As to RFA No. 23 – which essentially calls for defendant to admit that she has sent emails to Instagram related to Plaintiff's RUNWAY [TM] that it infringes on the RUNWAY MAGAZINE intellectual property – defendant asserted multiple objections which are overruled, but, defendant nonetheless responded “Deny.” In light of such denial, no further response is required to this RFA. Although plaintiff disputes the bona fides of defendant's denial and suggests that it is inconsistent with the portion of the response which admits that defendant's French Attorney sent emails on defendant's behalf, the resolution of such dispute must await trial. See National Semiconductor Corp., 265 F. Supp. 2d at 74-75.
As to RFA No. 24 – which essentially calls for defendant to admit that she has sent emails to mikeyaandmproducPons@gmail related to Plaintiff's RUNWAY [TM] that it infringes on the RUNWAY MAGAZINE intellectual property – defendant asserted multiple objections which are overruled, but, defendant nonetheless responded “Deny.” In light of such denial, no further response is required to this RFA. Although plaintiff disputes the bona fides of defendant's denial and suggests that it is inconsistent with the portion of the response which admits that defendant's French Attorney sent emails on defendant's behalf, the resolution of such dispute must await trial. See National Semiconductor Corp., 265 F. Supp. 2d at 74-75.
As to RFA No. 25 – which essentially calls for defendant to admit that she has sent emails to Julia Perry Style related to Plaintiff's RUNWAY [TM] that it infringes on the RUNWAY MAGAZINE intellectual property – defendant asserted multiple objections which are overruled, but, defendant nonetheless responded “Deny.” In light of such denial, no further response is required to this RFA. Although plaintiff disputes the bona fides of defendant's denial and suggests that it is inconsistent with the portion of the response which admits that defendant's French Attorney sent emails on defendant's behalf, the resolution of such dispute must await trial. See National Semiconductor Corp., 265 F. Supp. 2d at 74-75.
As to RFA No. 26 – which essentially calls for defendant to admit that she has sent emails to Dylan Perlot related to Plaintiff's RUNWAY [TM] that it infringes on the RUNWAY MAGAZINE intellectual property – defendant asserted multiple objections which are overruled, but, defendant nonetheless responded “Deny.” In light of such denial, no further response is required to this RFA. Although plaintiff disputes the bona fides of defendant's denial and suggests that it is inconsistent with the portion of the response which admits that defendant's French Attorney sent emails on defendant's behalf, the resolution of such dispute must await trial. See National Semiconductor Corp., 265 F. Supp. 2d at 74-75.
As to RFA No. 27 – which essentially calls for defendant to admit that she has sent emails to Jifff.com related to Plaintiff's RUNWAY [TM] that it infringes on the RUNWAY MAGAZINE intellectual property – defendant asserted multiple objections which are overruled, but, defendant nonetheless responded “Deny.” In light of such denial, no further response is required to this RFA. Although plaintiff disputes the bona fides of defendant's denial and suggests that it is inconsistent with the portion of the response which admits that defendant's French Attorney sent emails on defendant's behalf, the resolution of such dispute must await trial. See National Semiconductor Corp. 265 F. Supp. 2d at 74-75.
*11 As to RFA No. 28 – which essentially calls for defendant to admit that any rights granted her in the contract between the parties have been extinguished by her failure to pay the required licensing fees – defendant asserted multiple objections which are overruled, but, defendant nonetheless responded “Deny.” In light of such denial, no further response is required to this RFA. Although plaintiff disputes the bona fides of defendant's denial, the resolution of such dispute must await trial. See National Semiconductor Corp., 265 F. Supp. 2d at 74-75.
As to RFA No. 29 – which essentially calls for defendant to admit that she attempted to breach the attorney work product privilege by requesting documents from L.A. Translations – defendant asserted multiple objections which are overruled, but, defendant nonetheless responded “Deny.” In light of such denial, no further response is required to this RFA. Although plaintiff disputes the bona fides of defendant's denial, the resolution of such dispute must await trial. See National Semiconductor Corp., 265 F. Supp. 2d at 74-75.
IV. ORDERS
In accordance with the above, IT IS HEREBY ORDERED:
1. The RFP Motion and RFA Motion are granted in part and denied in part as detailed above.
2. By not later than October 15, 2020, defendant Ms. De Gray shall provide to plaintiff the supplemental responses called for this Order as detailed above, and shall produce to plaintiff the documents called for by this Order as detailed above.
3. The parties' cross-requests for sanctions are denied as the Court concludes that the circumstances present here would make an award of expenses unjust.
4. Defendant Ms. De Gray is cautioned that any failure to comply with this Court's Order may result in RFA Nos. 1, 4, 7, 8(1), 8(2), 13 and 15 being deemed admitted, and will subject her to potential monetary and non-monetary sanctions, as provided in Fed. R. Civ. P. 37(a)(5), 37(b)(2), 37(d), including (a) the issuance of a recommendation to prohibit her from opposing plaintiff's claims, supporting her defenses or from introducing evidence; (b) the issuance of a recommendation to strike defendant's pleadings in whole or in part; and (c) the issuance of a recommendation to render a default judgment against her.
IT IS SO ORDERED.
Footnotes
The District Judge has authorized the Magistrate Judge to order the production of discovery at this juncture notwithstanding the expiration of the discovery cut-off.
On September 11, 2019, the District Judge granted plaintiff leave to effectuate service of this action upon defendants via email, directed plaintiff to file a proof of service by not later than September 23, 2019, deemed the August 1, 2018 Answer to be Ms. De Gray's operative Answer and directed De Gray LLC to file an Answer by not later than October 11, 2019, which deadline the Court later extended to December 11, 2019. (Docket Nos. 92, 111). Plaintiff filed the requisite declaration/proof of service on September 16, 2019. (Docket No. 93). As De Gray LLC did not file an Answer by the foregoing extended deadline, the District Judge, on January 27, 2020, entered a default against it and indicated that plaintiff could file a motion for default judgment against De Gray LLC after the case has been resolved as to Ms. De Gray's liability. (Docket No. 117).
The Motions are accompanied by declarations of counsel which essentially reflect that defendant Ms. De Gray has not meaningfully engaged in a substantive meet and confer process relative to the Motions. Ms. De Gray blames plaintiff's counsel for deficiencies in the meet and confer process. In any event, the Motions are not in the form of Joint Stipulations. See Local Rules 37-1, et seq.
As two RFAs bear the number “8,” the Court refers to the first such RFA as No. 8(1), and the second such RFA as No. 8(2).
Courts, on motion, may generally permit withdrawal or amendment of matters admitted under Rule 36 if it would promote presentation of the merits of the action and if the court is not persuaded that it would prejudice the propounding party in maintaining or defending the action on the merits. Fed. R. Civ. P. 36(b).
Courts have broad discretion to determine whether a party's failure to raise timely objections to discovery should be excused for “good cause.” See Blumenthal v. Drudge, 186 F.R.D. 236, 240 (D.D.C.1999). In exercising such discretion, courts consider several relevant factors, including: (1) the length of the delay in responding; (2) the reason for the delay; (3) dilatory conduct or bad faith by the responding party; (4) prejudice to the party seeking the disclosure; (5) the nature of the request (i.e., whether the discovery requested was overly burdensome or otherwise improper); and (6) the harshness of imposing the waiver. Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005).
To the extent defendant Ms. De Gray contends that she should not be required to defend this action or to respond to the Discovery Requests in Issue because the operative First Amended Complaint assertedly lacks merit, such matter is not appropriate for resolution by this Court, and does not afford a basis to decline to produce or to delay production of the discovery called for by the Discovery Requests in Issue.
Accordingly, to the extent plaintiff objects to the Discovery Requests in Issue based on state law privileges which are inapplicable, such objections are overruled.