doTerra Holdings et al v. kimbjoh78 et al, No. 2:2022cv00570 - Document 7 (D. Utah 2022)

Court Description: MEMORANDUM DECISION AND ORDER granting 5 Motion for Expedited Third-Party Discovery. Signed by Magistrate Judge Daphne A. Oberg on 10/14/2022. (alf)

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doTerra Holdings et al v. kimbjoh78 et al Doc. 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION D TERRA HOLDINGS, LLC, a Utah limited liability company; and D TERRA INTERNATIONAL, LLC, a Utah limited liability company, MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR EXPEDITED THIRD-PARTY DISCOVERY (DOC. NO. 5) Plaintiffs, v. KIMBJOH78, a person or business entity of unknown type; and KIMBERLY JOHNSON, an individual, Case No. 2:22-cv-00570 Magistrate Judge Daphne A. Oberg Defendants. Plaintiffs d TERRA Holdings, LLC and d TERRA International, LLC (collectively, “d TERRA”) move for expedited discovery in advance of a Rule 26(f) scheduling conference in order to identify a defendant in this case. 1 D TERRA alleges defendant “kimbjoh78,” an unknown person or entity, advertises and sells counterfeit versions of d TERRA products on the website ebay.com. 2 D TERRA asserts claims for trademark infringement and unfair competition, among other claims. 3 D TERRA seeks leave to serve eBay, Inc. with a subpoena for information regarding the kimbjoh78 account in order to identify this defendant. 4 1 (See Ex Parte Mot. for Expedited Third-Party Discovery Regarding “Kimbjoh78” (“Mot.”), Doc. No. 5.) 2 (Compl. ¶¶ 3, 16–19, Doc. No. 2.) 3 (Id. ¶¶ 37–63.) 4 (Mot. 2, Doc. No. 5.) 1 Dockets.Justia.com Rule 26 of the Federal Rules of Civil Procedure provides “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except . . . when authorized by these rules, by stipulation, or by court order.” 5 “[A] party seeking expedited discovery in advance of a Rule 26(f) conference has the burden of showing good cause for the requested departure from usual discovery procedures.” 6 “Good cause may be satisfied in cases involving claims of unfair competition and infringement.” 7 D TERRA has shown good cause to permit expedited discovery regarding the kimbjoh78 account, based on d TERRA’s claim that this account is being used to sell counterfeit, infringing products. D TERRA also presented evidence that eBay will not release user contact information without a subpoena. 8 Under these circumstances, d TERRA has demonstrated this discovery is necessary to identify and serve the unknown defendant. D TERRA’s motion for expedited discovery is GRANTED. D TERRA may serve a subpoena on eBay, Inc. for information related to the kimbjoh78 account, including the identity and contact information of the account holder. DATED this 14th day of October, 2022. BY THE COURT: ______________________________ Daphne A. Oberg United States Magistrate Judge 5 Fed. R. Civ. P. 26(d)(1). 6 Vient v. Ancestry, No. 2:19-cv-00051, 2019 U.S. Dist. LEXIS 237828, at *2 (D. Utah Mar. 4, 2019) (unpublished) (quoting Qwest Commc’ns Int’l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003)). 7 Crazy ATV, Inc. v. Probst, No. 1:13-cv-00114, 2014 U.S. Dist. LEXIS 6414, at *4–5 (D. Utah Jan. 16, 2014) (unpublished) (internal quotation marks omitted). 8 (Decl. of Kipp S. Muir ¶ 5, Doc. No. 5-1.) 2

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