1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 COLUMBIA SPORTSWEAR NORTH Case No.: 20-CV-709 JLS (JLB) AMERICA, INC., an Oregon corporation, 12 ORDER GRANTING Plaintiff, 13 NON-PARTIES’ EX PARTE v. APPLICATION FOR LEAVE 14 TO FILE AN OPPOSITION TO SEIRUS INNOVATIVE ACCESSORIES, 15 PLAINTIFF’S MOTION FOR INC., a Utah corporation; VENTEX CO., DEFAULT JUDGMENT 16 LTD., a foreign company; MICHAEL J.
CAREY, an individual; WENDY M. 17 (ECF No. 340) CAREY, an individual; ROBERT (BOB) 18 MURPHY, an individual; SCOTT DENIKE, an individual; KYUNG-CHAN 19 GO, an individual; and MAN-SIK 20 (PAUL) PARK, an individual, 21 Defendants. 22
23 Presently before the Court is Non-Parties Seirus Innovative Accessories, Inc.; 24 Michael J. Carey; Wendy M. Carey; Robert Murphy; and Scott DeNike’s (collectively, the 25 “Non-Parties”) Ex Parte Application for Leave to File an Opposition to Plaintiff Columbia 26 Sportswear North America, Inc.’s (“Plaintiff”) Motion for Default Judgment (“Ex Parte 27 Appl.,” ECF No. 340). Also before the Court are Plaintiff’s opposition thereto (“Opp’n,” 28 ECF No. 342) and the Non-Parties’ reply in support thereof (“Reply,” ECF No. 344). 1 THE PARTIES’ POSITIONS 2 The Non-Parties seek leave to file an opposition brief to Plaintiff’s Motion for 3 Default Judgment (ECF No. 338), arguing that they “maintain a direct interest in the 4 present case” and that “[their] brief will help the Court evaluate Columbia’s request 5 because Ventex and its employees are not expected to submit a response.” Ex Parte Appl. 6 at 1. The Non-Parties argue Plaintiff will not be prejudiced by their filing of an opposition 7 brief given that Plaintiff will have the opportunity to address the arguments made therein 8 in a reply brief. Id. (citation omitted). 9 Plaintiff opposes the Non-Parties’ Ex Parte Application so long as they remain non- 10 parties to the action, arguing that the entry of default judgment against Defendants Ventex 11 Co., Ltd.; Kyung-Chan Go; and Man-Sik (Paul) Park (collectively, “Ventex”) “will have 12 no effect on [the Non-Parties].” Opp’n at 1 (footnote omitted). Plaintiff argues that the 13 Non-Parties will not be prejudiced by the entry of default judgment against Ventex, as 14 Plaintiff will not assert the judgment as a form of collateral estoppel against the Non- 15 Parties. Id. at 1 n.2. Plaintiff cites several cases for the proposition that dismissed and/or 16 non-parties lack standing to oppose entry of default judgment against others. Id. at 1 17 (citations omitted). Plaintiff also argues that, to the extent the Non-Parties are permitted 18 to oppose, they are defending the merits of the case and have therefore waived service and 19 made a general appearance in the case; accordingly, Plaintiff argues that the Court should 20 vacate the dismissal of the Non-Parties and effectively return them to the case as co- 21 defendants. Id. at 2–3 (citation omitted). Alternatively, Plaintiff suggests that the Court 22 sua sponte modify the “Judgment” in this action (ECF No. 300) to convert it into a final 23 judgment against the Non-Parties in accordance with Federal Rule of Civil Procedure 54(b) 24 in order to permit Plaintiff to appeal Judge Mosman’s order dismissing the Non-Parties and 25 transferring the case, in which case “[Plaintiff] would agree to stay briefing on the default 26 judgment motion pending [Plaintiff]’s appeal.” Id. at 3 n.3. 27 On reply, the Non-Parties argue that the cases Plaintiff cites regarding standing are 28 distinguishable, and that “[t]he only question is whether the Court wishes to consider a 1 response to [Plaintiff]’s motion. The Court will benefit from [the Non-Parties]’ brief 2 because [Plaintiff] invites multiple legal errors.” Reply at 1. The Non-Parties note that 3 standing is not required for the Court to consider a brief, citing authority concerning amicus 4 briefs. Id. at 1–2 (citation omitted). The Non-Parties argue that Plaintiff’s Motion for 5 Default Judgment seeks to hold Ventex and the Non-Parties liable jointly and severally; 6 thus, even if Plaintiff does not seek to use the judgment as a form of collateral estoppel 7 against the Non-Parties, there remains a serious concern about inconsistent judgments. Id. 8 at 2 (citing ECF No. 338 at 25 n.19; Frow v. La Vega, 82 U.S. 552, 554 (1872); In re First 9 T.D. & Inv., Inc., 253 F.3d 520, 532 (9th Cir. 2001)). Finally, the Non-Parties assert that 10 Plaintiff’s argument that the Non-Parties have generally appeared in the case is not properly 11 before the Court. Id. at 2 n.1. 12 ANALYSIS 13 As an initial matter, the Court recognizes that the manner in which this action was 14 transferred to this District has placed Plaintiff and the Non-Parties in an unusual position; 15 however, the Court does not appreciate being treated as a pawn in the procedural games 16 unfolding as a result. 17 To the extent Columbia seeks affirmative relief from the Court, such as a finding 18 that the Non-Parties have entered an appearance or a modification of Judge Mosman’s 19 Judgment (ECF No. 300), a noticed motion, rather than a few sentences or a footnote in an 20 opposition brief, is the appropriate means by which to seek such relief. Further, the Court 21 agrees that the standing cases on which Plaintiff relies are inapposite. However, the Court 22 also finds, to the extent the Ex Parte Application invites the Court to construe the Non- 23 Parties’ proposed opposition brief as an amicus brief, that the Non-Parties’ Ex Parte 24 Application seeking leave to file an opposition exceeds the scope of the limited role of 25 amicus curiae. See, e.g., NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 26 2d 1061, 1068 (N.D. Cal. 2005) (“Motions to file ‘oppositions’ to Plaintiff’s briefs . . . 27 indicate that the Tribe is attempting to exceed its stated role as amicus curiae. Such motions 28 will not be considered by this Court.”). 1 Nonetheless, the Court has discretion to construe the Non-Parties’ Ex Parte 2 Application as a motion to intervene for the limited purpose of opposing Plaintiff’s Motion 3 for Default Judgment. See, e.g., Thomas-Ikomoni v. McCalla Raymer, LLC, No. 1:07-CV- 4 1511-RWS/AJB, 2008 WL 11412165, at *2 (N.D. Ga. July 17, 2008), report and 5 recommendation adopted, No. 1:07-CV-1511-RWS, 2008 WL 11412167 (N.D. Ga. Sept. 6 2, 2008) (“[A] court may in its discretion treat a motion by a non-party as a motion to 7 intervene, thereby granting intervention status by ruling on the non-parties’ motion.”) 8 (citations omitted); see also United States v. Griffin, 782 F.2d 1393, 1399 (7th Cir. 1986) 9 (“The City’s motion was not styled one for intervention, but a court is entitled to disregard 10 labels and treat pleadings for what they are.”). In the Ninth Circuit, “it is well-established 11 that a non-party may intervene for the limited purpose of opposing a motion.” VFD 12 Consulting, Inc. v. 21st Servs., 21st Holdings, LLC, No. C 04-2161 SBA, 2005 WL 13 1115870, at *4 (N.D. Cal. May 11, 2005). 14 Pursuant to Federal Rule of Civil Procedure 24(a)(2), “[o]n timely motion, the court 15 must permit anyone to intervene who . . .
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 COLUMBIA SPORTSWEAR NORTH Case No.: 20-CV-709 JLS (JLB) AMERICA, INC., an Oregon corporation, 12 ORDER GRANTING Plaintiff, 13 NON-PARTIES’ EX PARTE v. APPLICATION FOR LEAVE 14 TO FILE AN OPPOSITION TO SEIRUS INNOVATIVE ACCESSORIES, 15 PLAINTIFF’S MOTION FOR INC., a Utah corporation; VENTEX CO., DEFAULT JUDGMENT 16 LTD., a foreign company; MICHAEL J.
CAREY, an individual; WENDY M. 17 (ECF No. 340) CAREY, an individual; ROBERT (BOB) 18 MURPHY, an individual; SCOTT DENIKE, an individual; KYUNG-CHAN 19 GO, an individual; and MAN-SIK 20 (PAUL) PARK, an individual, 21 Defendants. 22
23 Presently before the Court is Non-Parties Seirus Innovative Accessories, Inc.; 24 Michael J. Carey; Wendy M. Carey; Robert Murphy; and Scott DeNike’s (collectively, the 25 “Non-Parties”) Ex Parte Application for Leave to File an Opposition to Plaintiff Columbia 26 Sportswear North America, Inc.’s (“Plaintiff”) Motion for Default Judgment (“Ex Parte 27 Appl.,” ECF No. 340). Also before the Court are Plaintiff’s opposition thereto (“Opp’n,” 28 ECF No. 342) and the Non-Parties’ reply in support thereof (“Reply,” ECF No. 344). 1 THE PARTIES’ POSITIONS 2 The Non-Parties seek leave to file an opposition brief to Plaintiff’s Motion for 3 Default Judgment (ECF No. 338), arguing that they “maintain a direct interest in the 4 present case” and that “[their] brief will help the Court evaluate Columbia’s request 5 because Ventex and its employees are not expected to submit a response.” Ex Parte Appl. 6 at 1. The Non-Parties argue Plaintiff will not be prejudiced by their filing of an opposition 7 brief given that Plaintiff will have the opportunity to address the arguments made therein 8 in a reply brief. Id. (citation omitted). 9 Plaintiff opposes the Non-Parties’ Ex Parte Application so long as they remain non- 10 parties to the action, arguing that the entry of default judgment against Defendants Ventex 11 Co., Ltd.; Kyung-Chan Go; and Man-Sik (Paul) Park (collectively, “Ventex”) “will have 12 no effect on [the Non-Parties].” Opp’n at 1 (footnote omitted). Plaintiff argues that the 13 Non-Parties will not be prejudiced by the entry of default judgment against Ventex, as 14 Plaintiff will not assert the judgment as a form of collateral estoppel against the Non- 15 Parties. Id. at 1 n.2. Plaintiff cites several cases for the proposition that dismissed and/or 16 non-parties lack standing to oppose entry of default judgment against others. Id. at 1 17 (citations omitted). Plaintiff also argues that, to the extent the Non-Parties are permitted 18 to oppose, they are defending the merits of the case and have therefore waived service and 19 made a general appearance in the case; accordingly, Plaintiff argues that the Court should 20 vacate the dismissal of the Non-Parties and effectively return them to the case as co- 21 defendants. Id. at 2–3 (citation omitted). Alternatively, Plaintiff suggests that the Court 22 sua sponte modify the “Judgment” in this action (ECF No. 300) to convert it into a final 23 judgment against the Non-Parties in accordance with Federal Rule of Civil Procedure 54(b) 24 in order to permit Plaintiff to appeal Judge Mosman’s order dismissing the Non-Parties and 25 transferring the case, in which case “[Plaintiff] would agree to stay briefing on the default 26 judgment motion pending [Plaintiff]’s appeal.” Id. at 3 n.3. 27 On reply, the Non-Parties argue that the cases Plaintiff cites regarding standing are 28 distinguishable, and that “[t]he only question is whether the Court wishes to consider a 1 response to [Plaintiff]’s motion. The Court will benefit from [the Non-Parties]’ brief 2 because [Plaintiff] invites multiple legal errors.” Reply at 1. The Non-Parties note that 3 standing is not required for the Court to consider a brief, citing authority concerning amicus 4 briefs. Id. at 1–2 (citation omitted). The Non-Parties argue that Plaintiff’s Motion for 5 Default Judgment seeks to hold Ventex and the Non-Parties liable jointly and severally; 6 thus, even if Plaintiff does not seek to use the judgment as a form of collateral estoppel 7 against the Non-Parties, there remains a serious concern about inconsistent judgments. Id. 8 at 2 (citing ECF No. 338 at 25 n.19; Frow v. La Vega, 82 U.S. 552, 554 (1872); In re First 9 T.D. & Inv., Inc., 253 F.3d 520, 532 (9th Cir. 2001)). Finally, the Non-Parties assert that 10 Plaintiff’s argument that the Non-Parties have generally appeared in the case is not properly 11 before the Court. Id. at 2 n.1. 12 ANALYSIS 13 As an initial matter, the Court recognizes that the manner in which this action was 14 transferred to this District has placed Plaintiff and the Non-Parties in an unusual position; 15 however, the Court does not appreciate being treated as a pawn in the procedural games 16 unfolding as a result. 17 To the extent Columbia seeks affirmative relief from the Court, such as a finding 18 that the Non-Parties have entered an appearance or a modification of Judge Mosman’s 19 Judgment (ECF No. 300), a noticed motion, rather than a few sentences or a footnote in an 20 opposition brief, is the appropriate means by which to seek such relief. Further, the Court 21 agrees that the standing cases on which Plaintiff relies are inapposite. However, the Court 22 also finds, to the extent the Ex Parte Application invites the Court to construe the Non- 23 Parties’ proposed opposition brief as an amicus brief, that the Non-Parties’ Ex Parte 24 Application seeking leave to file an opposition exceeds the scope of the limited role of 25 amicus curiae. See, e.g., NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 26 2d 1061, 1068 (N.D. Cal. 2005) (“Motions to file ‘oppositions’ to Plaintiff’s briefs . . . 27 indicate that the Tribe is attempting to exceed its stated role as amicus curiae. Such motions 28 will not be considered by this Court.”). 1 Nonetheless, the Court has discretion to construe the Non-Parties’ Ex Parte 2 Application as a motion to intervene for the limited purpose of opposing Plaintiff’s Motion 3 for Default Judgment. See, e.g., Thomas-Ikomoni v. McCalla Raymer, LLC, No. 1:07-CV- 4 1511-RWS/AJB, 2008 WL 11412165, at *2 (N.D. Ga. July 17, 2008), report and 5 recommendation adopted, No. 1:07-CV-1511-RWS, 2008 WL 11412167 (N.D. Ga. Sept. 6 2, 2008) (“[A] court may in its discretion treat a motion by a non-party as a motion to 7 intervene, thereby granting intervention status by ruling on the non-parties’ motion.”) 8 (citations omitted); see also United States v. Griffin, 782 F.2d 1393, 1399 (7th Cir. 1986) 9 (“The City’s motion was not styled one for intervention, but a court is entitled to disregard 10 labels and treat pleadings for what they are.”). In the Ninth Circuit, “it is well-established 11 that a non-party may intervene for the limited purpose of opposing a motion.” VFD 12 Consulting, Inc. v. 21st Servs., 21st Holdings, LLC, No. C 04-2161 SBA, 2005 WL 13 1115870, at *4 (N.D. Cal. May 11, 2005). 14 Pursuant to Federal Rule of Civil Procedure 24(a)(2), “[o]n timely motion, the court 15 must permit anyone to intervene who . . . claims an interest relating to the property or 16 transaction that is the subject of the action, and is so situated that disposing of the action 17 may as a practical matter impair or impede the movant’s ability to protect its interest, unless 18 existing parties adequately represent that interest.” Courts within the Ninth Circuit 19 “construe Rule 24(a) liberally in favor of potential intervenors.” Sw. Ctr. for Biological 20 Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 2001) (citation omitted). 21 Exercising its discretion to construe the Non-Parties’ Ex Parte Application as a 22 motion to intervene for the limited purpose of opposing Plaintiff’s Motion for Default 23 Judgment, the Court finds the Non-Parties’ motion timely, as it was submitted in 24 accordance with the default briefing schedule set forth in Civil Local Rule 7.1(e)(2) to 25 oppose the Motion for Default Judgment. Further, the Non-Parties claim that the granting 26 of Plaintiff’s Motion for Default Judgment could result in inconsistent judgments, which 27 constitutes a substantial and protectible interest under Rule 24(a). See, e.g., McIver v. KW 28 Real Est./Akron Co., LLC, No. 810ML02151JVSFMOX, 2016 WL 8230634, at *3 (C.D. 1 June 15, 2016) (noting that party’s interests in intervening included “reduc[ing] the 2 of inconsistent judgments”); Adobe Sys. Inc. v. Select Retrieval, LLC, No. 3:12-CV- 3 2342-GPC-WMC, 2014 WL 497441, at *5 (S.D. Cal. Feb. 6, 2014) (similar). Finally, the 4 ||Court concludes that the existing parties do not adequately represent the Non-Parties’ 5 interests, as Plaintiffs interests are opposed to those of the Non-Parties and, as noted by 6 ||the Non-Parties, Ventex has defaulted and failed to oppose the Motion for Default 7 Judgment. Accordingly, construing the Non-Parties’ Ex Parte Application as a motion to 8 |/intervene for the limited purpose of opposing Plaintiff's Motion for Default Judgment, the 9 || Court finds that the Non-Parties are entitled to intervene as of right and GRANTS the Ex 10 || Parte Application. 1] CONCLUSION 12 In light of the foregoing, the Court GRANTS the Non-Parties’ Ex Parte Application 13 ||(ECF No. 340). Should the Non-Parties wish to intervene in this action for the limited 14 purpose of opposing Plaintiff's Motion for Default Judgment, the Non-Parties SHALL 15 || FILE the proposed opposition brief attached as an exhibit to their Ex Parte Application on 16 before May 14, 2021. Plaintiff MAY FILE a reply brief no later than seven (7) days 17 || after the date on which the Non-Parties’ opposition brief is electronically docketed. 18 IT IS SO ORDERED. 19 ||Dated: May 12, 2021 (een 0 on. Janis L. Sammartino United States District Judge 21 22 23 24 25 26 27 28