United States District Court, D. Colorado
ORDER ON PENDING MOTIONS
Y. WANG, UNITED STATES MAGISTRATE JUDGE.
Judge Nina Y. Wang This matter comes before the court on
(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,
(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].
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.
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].
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.].
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]. 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].
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.
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 ...