1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 AMAZON.COM, INC., et al., 9 Plaintiffs, CASE NO. 21-170RSM 10 v. ORDER GRANTING PLAINTIFFS’ EX PARTE MOTION FOR EXPEDITED 11 YONG, et al., DISCOVERY 12 Defendants.
13 I. INTRODUCTION 14 This matter comes before the Court on Plaintiffs Amazon.com, Inc. (“Amazon”) and 15 Salvatore Ferragamo S.p.A. (“Ferragamo”) (collectively, “Plaintiffs”)’s Motion for expedited 16 discovery relating to Defendants’ identities. Dkt. #12. Defendants have not yet appeared in this 17 matter. For the reasons set forth below, the Court GRANTS Plaintiffs’ motion. 18 II. BACKGROUND 19 On February 11, 2021, Plaintiffs filed this action against Defendants Li Yong and 20 Yantaitianmingwangluokejiyouxiangongsi, doing business as Phil Baldinie; Wu Pianpian, doing 21 business as Hefei Yanzi Trading Company; Hefeizanzishangmaoyouxiangongsi, doing business 22 as Hefei Yanzi Trading Company; and DOES 1-10 (collectively, “Defendants”) alleging 23 trademark infringement, false designation of origin, and false advertising under the Lanham Act ORDER GRANTING PLAINTIFFS’ EX 1 and the Washington Consumer Protection Act. Dkt. #1. Plaintiffs’ claims arise from Defendants’ 2 alleged operation of various seller accounts on Amazon’s online store to unlawfully advertise and 3 sell counterfeit belts using the Ferragamo trademark. Id. at ¶¶ 49-76. 4 Although Plaintiffs have made “significant, ongoing attempts” to determine the identities 5 of Defendants, Dkt. #12 at 3, the Amazon seller accounts used by Defendants to sell the counterfeit
6 products either use addresses that do not exist, or the individuals associated with those addresses 7 do not match the names provided by the Defendants. Dkt. #14 at ¶¶ 2-4. Despite reasonable efforts 8 to search publicly available information, no such persons can be found at the addresses associated 9 with the seller accounts. Id. at ¶¶ 7-9; see also Dkt. #13 at ¶¶ 3-7. Through additional 10 investigations, Plaintiffs determined that Defendants have used bank accounts at First Century 11 Bank, Citibank and Wells Fargo. Dkt. #14 at ¶¶ 3-4. They have also identified e-mail addresses 12 registered to Defendant’s accounts through Chinese-based service provider, NetEase Information 13 Technology Corporation (“NetEase”). Id. Plaintiffs have also determined that Defendants are 14 likely clients of Payoneer, a virtual payment processor that facilitates payments into U.S. bank
15 accounts for transfer to overseas accounts. Dkt. #13 at ¶ 6. 16 Based on these findings, Plaintiffs move for leave to serve a Fed. R. Civ. P. 45 subpoena 17 on banks with accounts associated with Defendants’ Amazon seller accounts, virtual payment 18 processor Payoneer, and email service provider NetEase, for purposes of obtaining information to 19 identify the Doe Defendants, locating the whereabouts of known and unknown Defendants, and 20 obtaining key information about the location of counterfeit goods and proceeds from their sale. 21 Dkt. #12; Dkt. #14 at ¶ 7. 22 // 23 //
ORDER GRANTING PLAINTIFFS’ EX 1 III. DISCUSSION 2 A. Legal Standard 3 Federal Rule of Civil Procedure 26(d) bars parties from seeking “discovery from any 4 source before the parties have conferred as required by Rule 26(f), except in a proceeding 5 exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by
6 stipulation, or by court order.” Fed. R. Civ. P. 26(d)(1). In determining whether to permit 7 expedited discovery, courts in this jurisdiction require that the moving party demonstrate that 8 “good cause” exists to deviate from the standard pretrial schedule. See Sovereign Bank v. 9 Terrence Scott Twyford, Jr., No. C11-1256RSM (W.D. Wash. Aug. 16, 2012) (adopting the 10 “good cause” standard for motions for expedited discovery); Renaud v. Gillick, 2007 WL 98465 11 (W.D. Wash. 2007) (finding that plaintiffs demonstrated good cause for expedited discovery); 12 see also Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002) 13 (applying “the conventional standard of good cause in evaluating Plaintiff’s request for expedited 14 discovery”). “Good cause may be found where the need for expedited discovery, in consideration
15 of the administration of justice, outweighs the prejudice to the responding party.” Semitool, 208 16 F.R.D. at 276. The Ninth Circuit has emphasized that diligence and the intent of the moving 17 party are the sine qua non of good cause. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 18 609 (9th Cir. 1992); Renaud, 2007 WL 984645, at *2. 19 B. Good Cause for Expedited Discovery 20 The Court begins by noting that the circumstances of this case are different from the 21 ordinary circumstances giving rise to motions for expedited discovery, such as a motion seeking 22 to identify an unknown Internet user that unlawfully accessed a plaintiff’s intellectual 23 property. Here, Plaintiff Amazon entered into a business relationship with the Defendants
ORDER GRANTING PLAINTIFFS’ EX 1 despite not knowing their identities. Now, having found that choice imprudent, Amazon seeks 2 to better identify its contractual partners. As such, the Court struggles to conclude that Amazon 3 has been fully diligent in seeking to learn the identity of the Defendants. Amazon—perhaps by 4 design—elected not to seek additional verification of the Defendants’ identities at the time it 5 agreed to allow Defendants to market goods on its website. However, despite this glaring
6 omission, at least some of the Defendants actively misled Plaintiffs as to their identities. The 7 Court finds that Defendants should not be afforded the benefit of anonymity in furtherance of 8 their bad actions. 9 Having considered the balance of factors, the Court concludes that Plaintiffs’ intent in 10 seeking expedited discovery justifies their request. Courts routinely allow early discovery for 11 the limited purpose of identifying defendants on whom process could not otherwise be served. 12 See, e.g., Music Grp. Macao Commercial Offshore Ltd. v. John Does I-IX, No. 14-CV-621 RSM, 13 2014 WL 11010724, at *1–2 (W.D. Wash. July 18, 2014) (granting expedited discovery from 14 Twitter, Inc. sufficient to identify Doe defendants); The Thompsons Film, LLC. v. Does 1–194,
15 Case No. 2:13-cv-00560RSL (W.D. Wash. Apr. 1, 2013) (allowing early discovery from internet 16 service providers to identify Doe defendants); Digital Sin, Inc. v. Does 1–5698, 2011 WL 17 5362068 (N.D. Cal. 2011) (same); Cottrell v. Unknown Correctional Officers, 1–10, 230 F.3d 18 1366, *1 (9th Cir. 2000) (explaining that “[t]he Federal Rules of Civil Procedure do not require 19 that a district court dismiss unknown defendants simply because the plaintiff is unaware of the 20 identity of those defendants at the time of the filing of the complaint.”). “[W]here the identity of 21 the alleged defendant[ ][is] not [ ] known prior to the filing of a complaint[,] the plaintiff should 22 be given an opportunity through discovery to identify the unknown defendants, unless it is clear 23 that discovery would not uncover the identities, or that the complaint would be dismissed on
ORDER GRANTING PLAINTIFFS’ EX 1 other grounds.” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie 2 v.
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 AMAZON.COM, INC., et al., 9 Plaintiffs, CASE NO. 21-170RSM 10 v. ORDER GRANTING PLAINTIFFS’ EX PARTE MOTION FOR EXPEDITED 11 YONG, et al., DISCOVERY 12 Defendants.
13 I. INTRODUCTION 14 This matter comes before the Court on Plaintiffs Amazon.com, Inc. (“Amazon”) and 15 Salvatore Ferragamo S.p.A. (“Ferragamo”) (collectively, “Plaintiffs”)’s Motion for expedited 16 discovery relating to Defendants’ identities. Dkt. #12. Defendants have not yet appeared in this 17 matter. For the reasons set forth below, the Court GRANTS Plaintiffs’ motion. 18 II. BACKGROUND 19 On February 11, 2021, Plaintiffs filed this action against Defendants Li Yong and 20 Yantaitianmingwangluokejiyouxiangongsi, doing business as Phil Baldinie; Wu Pianpian, doing 21 business as Hefei Yanzi Trading Company; Hefeizanzishangmaoyouxiangongsi, doing business 22 as Hefei Yanzi Trading Company; and DOES 1-10 (collectively, “Defendants”) alleging 23 trademark infringement, false designation of origin, and false advertising under the Lanham Act ORDER GRANTING PLAINTIFFS’ EX 1 and the Washington Consumer Protection Act. Dkt. #1. Plaintiffs’ claims arise from Defendants’ 2 alleged operation of various seller accounts on Amazon’s online store to unlawfully advertise and 3 sell counterfeit belts using the Ferragamo trademark. Id. at ¶¶ 49-76. 4 Although Plaintiffs have made “significant, ongoing attempts” to determine the identities 5 of Defendants, Dkt. #12 at 3, the Amazon seller accounts used by Defendants to sell the counterfeit
6 products either use addresses that do not exist, or the individuals associated with those addresses 7 do not match the names provided by the Defendants. Dkt. #14 at ¶¶ 2-4. Despite reasonable efforts 8 to search publicly available information, no such persons can be found at the addresses associated 9 with the seller accounts. Id. at ¶¶ 7-9; see also Dkt. #13 at ¶¶ 3-7. Through additional 10 investigations, Plaintiffs determined that Defendants have used bank accounts at First Century 11 Bank, Citibank and Wells Fargo. Dkt. #14 at ¶¶ 3-4. They have also identified e-mail addresses 12 registered to Defendant’s accounts through Chinese-based service provider, NetEase Information 13 Technology Corporation (“NetEase”). Id. Plaintiffs have also determined that Defendants are 14 likely clients of Payoneer, a virtual payment processor that facilitates payments into U.S. bank
15 accounts for transfer to overseas accounts. Dkt. #13 at ¶ 6. 16 Based on these findings, Plaintiffs move for leave to serve a Fed. R. Civ. P. 45 subpoena 17 on banks with accounts associated with Defendants’ Amazon seller accounts, virtual payment 18 processor Payoneer, and email service provider NetEase, for purposes of obtaining information to 19 identify the Doe Defendants, locating the whereabouts of known and unknown Defendants, and 20 obtaining key information about the location of counterfeit goods and proceeds from their sale. 21 Dkt. #12; Dkt. #14 at ¶ 7. 22 // 23 //
ORDER GRANTING PLAINTIFFS’ EX 1 III. DISCUSSION 2 A. Legal Standard 3 Federal Rule of Civil Procedure 26(d) bars parties from seeking “discovery from any 4 source before the parties have conferred as required by Rule 26(f), except in a proceeding 5 exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by
6 stipulation, or by court order.” Fed. R. Civ. P. 26(d)(1). In determining whether to permit 7 expedited discovery, courts in this jurisdiction require that the moving party demonstrate that 8 “good cause” exists to deviate from the standard pretrial schedule. See Sovereign Bank v. 9 Terrence Scott Twyford, Jr., No. C11-1256RSM (W.D. Wash. Aug. 16, 2012) (adopting the 10 “good cause” standard for motions for expedited discovery); Renaud v. Gillick, 2007 WL 98465 11 (W.D. Wash. 2007) (finding that plaintiffs demonstrated good cause for expedited discovery); 12 see also Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002) 13 (applying “the conventional standard of good cause in evaluating Plaintiff’s request for expedited 14 discovery”). “Good cause may be found where the need for expedited discovery, in consideration
15 of the administration of justice, outweighs the prejudice to the responding party.” Semitool, 208 16 F.R.D. at 276. The Ninth Circuit has emphasized that diligence and the intent of the moving 17 party are the sine qua non of good cause. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 18 609 (9th Cir. 1992); Renaud, 2007 WL 984645, at *2. 19 B. Good Cause for Expedited Discovery 20 The Court begins by noting that the circumstances of this case are different from the 21 ordinary circumstances giving rise to motions for expedited discovery, such as a motion seeking 22 to identify an unknown Internet user that unlawfully accessed a plaintiff’s intellectual 23 property. Here, Plaintiff Amazon entered into a business relationship with the Defendants
ORDER GRANTING PLAINTIFFS’ EX 1 despite not knowing their identities. Now, having found that choice imprudent, Amazon seeks 2 to better identify its contractual partners. As such, the Court struggles to conclude that Amazon 3 has been fully diligent in seeking to learn the identity of the Defendants. Amazon—perhaps by 4 design—elected not to seek additional verification of the Defendants’ identities at the time it 5 agreed to allow Defendants to market goods on its website. However, despite this glaring
6 omission, at least some of the Defendants actively misled Plaintiffs as to their identities. The 7 Court finds that Defendants should not be afforded the benefit of anonymity in furtherance of 8 their bad actions. 9 Having considered the balance of factors, the Court concludes that Plaintiffs’ intent in 10 seeking expedited discovery justifies their request. Courts routinely allow early discovery for 11 the limited purpose of identifying defendants on whom process could not otherwise be served. 12 See, e.g., Music Grp. Macao Commercial Offshore Ltd. v. John Does I-IX, No. 14-CV-621 RSM, 13 2014 WL 11010724, at *1–2 (W.D. Wash. July 18, 2014) (granting expedited discovery from 14 Twitter, Inc. sufficient to identify Doe defendants); The Thompsons Film, LLC. v. Does 1–194,
15 Case No. 2:13-cv-00560RSL (W.D. Wash. Apr. 1, 2013) (allowing early discovery from internet 16 service providers to identify Doe defendants); Digital Sin, Inc. v. Does 1–5698, 2011 WL 17 5362068 (N.D. Cal. 2011) (same); Cottrell v. Unknown Correctional Officers, 1–10, 230 F.3d 18 1366, *1 (9th Cir. 2000) (explaining that “[t]he Federal Rules of Civil Procedure do not require 19 that a district court dismiss unknown defendants simply because the plaintiff is unaware of the 20 identity of those defendants at the time of the filing of the complaint.”). “[W]here the identity of 21 the alleged defendant[ ][is] not [ ] known prior to the filing of a complaint[,] the plaintiff should 22 be given an opportunity through discovery to identify the unknown defendants, unless it is clear 23 that discovery would not uncover the identities, or that the complaint would be dismissed on
ORDER GRANTING PLAINTIFFS’ EX 1 other grounds.” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie 2 v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). 3 Here, Plaintiffs seek expedited discovery to ascertain sufficient identifying information 4 about Defendants in order to effect service. Good cause exists where a plaintiff has exhausted 5 its means to identify the defendant through publicly-available information and has no other way
6 to identify the bad actors involved in the scheme. Facebook, Inc. v. Various, Inc., 2011 WL 7 2437433, at *3 (N.D. Cal. 2011) (“Courts in [the Ninth] Circuit permit expedited discovery to 8 identify unknown defendants usually when the plaintiff simultaneously can identify no 9 defendants and legitimately fears that information leading to their whereabouts faces imminent 10 destruction.”); see also Semitool, 208 F.R.D. at 277 (granting expedited discovery where 11 narrowly tailored requests will “substantially contribute to moving this case forward”). Having 12 reviewed Plaintiffs’ declarations, it appears they have exhausted publicly available means to trace 13 specific names and addresses to the various Amazon seller accounts. See Dkt. #13 at ¶¶ 2-7; Dkt. 14 #14 at ¶¶ 3-7. Consequently, Plaintiffs have demonstrated that without expedited discovery, they
15 will not be able to identify the individuals behind the seller accounts. 16 Furthermore, the Court finds good cause for expedited discovery given Plaintiffs’ claims 17 that irreparable harm will result through Defendants’ continued use of their trademarks, unfair 18 competition and false advertising. Dkt. #1 at ¶¶ 23; 63; 70; Music Grp. Macao Commercial 19 Offshore Ltd., 2014 WL 11010724, at *2 (finding good cause where plaintiffs alleged irreparable 20 harm through infringement and unfair competition); see also Qwest Comm. Intl, Inc. v. 21 WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Co.2003) (“The good cause standard may 22 be satisfied . . . where the moving party has asserted claims of infringement and unfair 23
ORDER GRANTING PLAINTIFFS’ EX 1 competition.”). For these reasons, Plaintiffs’ intent in seeking expedited discovery supports a 2 finding of good cause. 3 Finally, the Court finds minimal prejudice to Defendants if Plaintiffs are granted leave to 4 conduct expedited discovery. Plaintiffs’ discovery request is narrowly tailored to seek 5 information only from those bank accounts, virtual payment processor Payoneer, and email
6 accounts associated with the Amazon seller accounts for the purpose of identifying the 7 individuals connected to those accounts. See Dkt. #12-1 at 1-2. Furthermore, Plaintiffs have 8 requested discovery directed at non-parties—not the Defendants—which courts recognize as 9 “not impos[ing] a significant burden upon defendants.” Renaud, 2007 WL 98465, at *3. To the 10 extent Plaintiffs discover new information warranting additional Rule 45 subpoenas, they may 11 file a supplemental motion for expedited discovery with information supporting their requests. 12 IV. CONCLUSION 13 Having reviewed Plaintiffs’ Motion and the declarations filed in support thereof, the Court 14 ORDERS:
15 (1) Plaintiffs’ Ex Parte Motion for Expedited Discovery, Dkt. #12, is GRANTED. 16 Plaintiffs are granted leave, prior to the Rule 26(f) conference, to serve Rule 45 subpoenas on the 17 following companies for the purpose of obtaining information that may identify Defendants: 18 a. First Century Bank 19 b. Payoneer 20 c. NetEase Information Technology Corporation 21 d. Wells Fargo 22 e. Citibank 23 (2) Plaintiffs shall provide a copy of this Order with each subpoena issued pursuant thereto.
ORDER GRANTING PLAINTIFFS’ EX 1 Dated this 2nd day of April, 2021. 2 3 A 4 RICARDO S. MARTINEZ 5 CHIEF UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
ORDER GRANTING PLAINTIFFS’ EX