United States District Court, D. Arizona
A. Teilfcorg, Senior United States District Judge.
before the Court is Plaintiff Nutrition Distribution
LLC's Motion for Leave to Conduct Discovery on Damages
Issues, (the “Motion, ” Doc. 14). The Motion also
encompasses a Request for Judicial Notice, (the
“Request, ” id. at 6 n.1). The Court now
rules on the Motion and Request.
16, 2017,  Plaintiff filed its Complaint against
Defendants Black Diamond Supplements LLC and Supplement
Fusion LLC asserting one claim for relief of False
Advertising in Violation of Section 43(a)(1)(B) of the Lanham
Act. (See Doc. 1); see also 15 U.S.C.
§ 1125(a)(1)(B) (2012). On June 21, 2017, Plaintiff
completed service of process on both Defendants.
(See Docs. 10, 11). After Plaintiff filed an
application for entry of default, the Clerk of the Court
entered default as to both Defendants on August 7, 2017.
REQUEST FOR JUDICIAL NOTICE
requests the Court take judicial notice of three court
orders. (Doc. 14 at 6 n.1). These orders include the
following: (1) Order Authorizing Plaintiff to Obtain
Discovery, Nutrition Distribution LLC v. Icon
Supplements, LLC, CV-16-03572-PHX-JJT (D. Ariz. Mar. 8,
2017); (2) Order Authorizing Plaintiff to Conduct Discovery
to Ascertain Damages in Support of Anticipated Motion for
Default, Nutrition Distribution LLC v. DuraCap Labs
LLC, CV-16-00460-PHX-GMS (D. Ariz. Sept. 12, 2016); and
(3) Order Authorizing Plaintiff to Conduct Discovery to
Ascertain Damages in Support of Anticipated Motion for
Default, Nutirition Distribution LLC v. NutraClipse,
Inc., CV-17-01087-PHX-SPL (D. Ariz. Aug. 9, 2017).
(See Docs. 14-2; 14-3; 14-4).
may take judicial notice of information “not subject to
reasonable dispute because it (1) is generally known within
the trial court's territorial jurisdiction; or (2) can be
accurately and readily determine from sources whose accuracy
cannot reasonably be questioned.” Fed.R.Evid. 201(b).
“A court shall take judicial notice if requested by a
party and supplied with the necessary information.”
Id. at 201(d). Here, because prior court proceedings
are proper subjects of judicial notice, see Ramirez v.
Medtronic Inc., 961 F.Supp.2d 977, 983 (D. Ariz. 2013),
the Court will grant Plaintiff's request to take judicial
notice of the three court orders.
MOTION TO CONDUCT DISCOVERY
moves, “pursuant to Federal Rules of Civil Procedure
[“Federal Rules”] 26(d)(1) and 55(b)(2), ”
for the Court “to grant leave to Plaintiff to conduct
discovery on the issue of damages after entry of default
against [the Defendants].” (Doc. 14 at 2). In
particular, Plaintiff “intends to seek discovery on the
online payment gateway services such as PayPal used by
Defendants, as well as any institutions with which Defendants
hold financial accounts, in order to ascertain
Defendants' revenue from its sales of falsely advertised
products.” (Doc. 14 at 6-7).
Federal Rules of Civil Procedure distinguish between parties
and non-parties in establishing available discovery
devices.” Jules Jordan Video, Inc. v. 144942 Canada
Inc., 617 F.3d 1146, 1158 (9th Cir. 2010); see also
In re Liu, 282 B.R. 904, 908-09 (Bankr. C.D. Cal. 2002)
(describing the different discovery tools available for use
against parties versus non-parties to the litigation).
Although the Federal Rules do not specify the mechanisms
available to a plaintiff to take discovery of a defaulting
defendant, the Ninth Circuit Court of Appeals (the
“Ninth Circuit”) has held that “a defaulted
defendant should be treated as a non-party.” Jules
Jordan, 617 F.3d at 1159.
it is not entirely clear whether Plaintiff seeks the
Court's leave to utilize discovery mechanisms that are
only available to conduct discovery of a party. Because Ninth
Circuit precedent is clear that the Court may not treat
Defendants as “parties” for the purposes of
complying with discovery obligations, the Court will construe
Plaintiff's Motion as simply requesting leave to obtain
discovery through Federal Rules applicable to
non-parties. See, e.g., W. Metal Indus.
Pension Tr. v. Ruthford's Auto Rebuild, Ltd., No.
C06-525P, 2006 U.S. Dist. LEXIS 74274, at *4 (W.D. Wash. Oct.
12, 2006) (denying a motion to compel pursuant to Federal
Rule 37 against a defaulting defendant but allowing a
plaintiff to utilize Federal Rule 45 for discovery of a
on the foregoing, IT IS ORDERED granting
Plaintiff Nutrition Distribution LLC's Request for
Judicial Notice, (Doc. 14 at 6 n.1).
IS FURTHER ORDERED granting Plaintiffs Motion for
Leave to Conduct Discovery on Damage Issues, (Doc. 14),