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Popsockets LLC v. Online King LLC

United States District Court, D. Colorado

October 11, 2019

ONLINE KING LLC, and JOHN DOES 1-10, Defendants.



         Magistrate Judge Nina Y. Wang This matter comes before the court on three motions:

(1) Defendant ONLINE KING, LLC's (“Defendant”) Motion for Stay of Discovery and Scheduling Order Compliance Until Ruling on Defendant's Motion to Dismiss for Lack of Personal Jurisdiction or in the Alternative to Transfer Venue (the “Motion to Stay” or “Motion”), filed September 12, 2019, [#35];
(2) Plaintiff PopSockets LLC's (“Plaintiff” or “PopSockets”) Proposed Protective Order (the “Motion for Protective Order”), filed September 19, 2019, [#36]; and
(3) Plaintiff's Proposed Electronic Discovery Protocol (the “Motion for ESI Protocol”), filed September 19, 2019, [#37].

         The undersigned Magistrate Judge considers the Motions pursuant to 28 U.S.C. § 636(b) and the Memoranda dated September 23 and October 10, 2019, respectively. See [#38; #41]. This court concludes that oral argument will not materially assist in the resolution of these matters. Accordingly, having reviewed the Motions, the applicable case law, and the entire docket, this court GRANTS IN PART and DENIES IN PART the Motion to Stay and DENIES AS MOOT the Motions for Protective Order and ESI Protocol for the reasons stated herein.


         Plaintiff, a Colorado limited liability company, “develops, manufactures, markets, and sells grips/stands, mounts, and other mobile device accessories under the POPSOCKETS brand.” [#1 at ¶¶ 1, 7]. Plaintiff “sells its products in the United States exclusively through its own website and through a network of Authorized Distributors, Authorized Retailers (who purchase products directly from PopSockets and sell products either at their brick-and-mortar locations or through their proprietary websites authorized by PopSockets, as detailed herein), and Authorized Resellers (who purchase products from distributors and sell either through approved websites or at their brick-and-mortar locations, as described herein) (collectively ‘Authorized Sellers').” [Id. at ¶ 8]. Plaintiff has also registered various PopSockets trademarks with the United States Patent and Trademark Office, which according to Plaintiff have “substantial value” given the “superior quality and exclusive distribution of PopSockets products.” [Id. at ¶¶ 9-15].

         On May 2, 2019, Plaintiff initiated this civil action against Defendant (as well as several John Does Defendants). See [#1]. Plaintiff alleges that Defendant is not an Authorized Seller of PopSockets products but sells such products online without adhering to PopSockets' strict product quality standards. See [id. at ¶¶ 104-83]. Because of this, Plaintiff alleges Defendant has sold defective and/or damaged products under the PopSockets trademarks, which has resulted in customers leaving disparaging and negative reviews of the PopSockets products online. See generally [id.]. Accordingly, Plaintiff asserts claims against Defendant for trademark infringement, unfair competition, and false advertising under the Lanham Act, 15 U.S.C. §§ 1051 et seq., as well as a state law claims for trademark infringement, unfair competition, deceptive trade practices, and tortious interference with existing and/or prospective contracts and business relations. [Id.].

         Relevant here, Defendant filed its Notice of Motion and Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3) or, Alternatively, to Transfer Venue (the “Motion to Dismiss”) on July 15, 2019. [#18].[1] Following several continuances, the Parties appeared before the undersigned Magistrate Judge for a Scheduling Conference on September 5, 2019, at which this court learned that Defendant did not participate in drafting the Proposed Scheduling Order given its Motion to Dismiss and its challenges to this court's personal jurisdiction over Defendant. See [#33]. This court explained that it was not this District's practice to automatically stay discovery in matters when a Motion to Dismiss is filed in the absence of a concurrent request to stay discovery, see [id.], and thus this court proceeded to set a pre-trial discovery schedule without prejudice to any arguments made in the Motion to Dismiss, see [#34].

         Defendant filed the instant Motion to Stay on September 12, 2019, requesting that this court stay discovery in this matter pending the disposition of its Motion to Dismiss. See [#35]. Plaintiff has since responded in opposition to the Motion to Stay, and this court prohibited any replies absent leave of the court-neither party has sought leave to file additional briefing. See D.C.COLO.LCivR 7.1(d) (nothing precludes a judicial officer from ruling on a motion at any time). Accordingly, the Motion to Stay is now ripe for determination, and this court considers the Parties' arguments below.


         “The Federal Rules of Civil Procedure do not provide for the stay of proceedings while a motion to dismiss is pending. Instead, Rule 1 instructs that the rules of procedure ‘shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.'” Sutton v. Everest Nat'l Ins. Co., No. 07 CV 00425 WYD BNB, 2007 WL 1395309, at *1 (D. Colo. May 9, 2007). Nonetheless, when ruling on a motion to stay, courts weigh the following factors: (1) the plaintiff's interests in expeditiously litigating this action and the potential prejudice to plaintiff of a delay; (2) the burden on the defendants; (3) the convenience to the court; (4) the interests of persons not parties to the civil litigation; and (5) the public interest. String Cheese Incident, LLC v. Stylus Shows, Inc., No. 1:02-CV-01934-LTB-PAC, 2006 WL 894955, at *2 (D. Colo. Mar. 30, 2006). But “stays of the normal proceedings of a court matter should be the exception rather than the rule, ” Ch ...

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