1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 OBESITY RESEARCH INSTITUTE, Case No.: 3:25-cv-00877-BJC-AHG LLC, 12 ORDER GRANTING PLAINTIFF’S Plaintiff, 13 EX PARTE APPLICATION FOR v. LEAVE TO SERVE THIRD-PARTY 14 SUBPOENA PRIOR TO A RULE SUNRISE SELECTIONS LLC, et al., 15 26(f) CONFERENCE Defendants. 16 [ECF No. 38] 17 18 19 20 21 Before the Court is Plaintiff Obesity Research Institute, LLC’s (“Plaintiff”) Ex Parte 22 Application for Leave to Serve Third Party Subpoena Prior to a Rule 26(f) Conference. 23 ECF No. 38. No opposition briefs have been filed. See also ECF No. 38 at 2 (Plaintiff 24 contacted Amaz Group and counsel for Sunrise Selections regarding the instant ex parte 25 application, and “Defendant Sunrise Selections’ counsel has not contacted Plaintiff 26 regarding this Application. Defendant Amaz Group has not contacted Plaintiff regarding 27 this Application”). For the reasons discussed below, the Court GRANTS Plaintiff’s ex 28 parte application. 1 I. BACKGROUND 2 On April 14, 2025, Plaintiff filed a Complaint against Defendants Sunrise Selections 3 LLC, Amaz Group LLC, Leoris Holdings LLC, BuyGoods Inc., and Does 1–100 4 (collectively, “Defendants”). ECF No. 1. Plaintiff asserts that Defendants are infringing 5 their trademarks for “Lipozene” and using marks confusingly similar to it and, thus, are 6 engaging in unfair competition. Id. at 2. For example, “Plaintiff became aware that 7 Defendants were selling health supplement products via online platforms using the name 8 Lipozem, Lipo-zem, Lipozeme, and Lipo-zeme, causing consumer confusion and damage 9 to Plaintiff’s protected name.” ECF No. 15 at 2. 10 In the instant motion, Plaintiff seeks leave to conduct early discovery prior to the 11 mandated Rule 26(f) conference to learn the identities of a Doe defendant. ECF No. 38. 12 Specifically, Plaintiff seeks an order permitting it to serve a third-party subpoena under 13 Federal Rule of Civil Procedure 45 on Namecheap.com. ECF No. 38-1 at 5–6. Plaintiff 14 alleges that Doe defendant is operating the www.lipozem.com website, and is selling goods 15 that infringe on Plaintiff’s trademarks. Id. at 5–9; ECF No. 38-3 at 3, 5. Plaintiff explains 16 that Namecheap.com, who hosts the www.lipozem.com webstore, “is the only party with 17 the information necessary to properly identify the unknown Doe Defendant operating the 18 www.lipozem.com website by correlating the infringing retailer’s website with identifying 19 information that would allow Plaintiff to properly plead the unidentified infringing retailer 20 into this lawsuit.” ECF No. 38-1 at 5; see id. (Plaintiff cannot obtain further information 21 without a subpoena because “the ownership information for the website as viewable on 22 lookup.icann.org is redacted”). With the Rule 45 subpoena, Plaintiff hopes to “identity of 23 the Doe Defendant operating the identified website, further investigate the Doe 24 Defendant’s role in the infringement, and effectuate service upon the Doe Defendant.” Id. 25 at 6. Plaintiff represents to the Court that the subpoenas will demand the true name, 26 addresses, and contact information of the Doe defendants. Id. at 23. Additionally, Plaintiff 27 represents that it “will only use this information to prosecute the claims made in its 28 Complaint.” Id. at 6. 1 II. LEGAL STANDARD 2 A party is generally not permitted to obtain discovery without a court order before 3 the parties have conferred pursuant to Federal Rule of Civil Procedure 26(f). FED. R. CIV. 4 P. 26(d)(1). However, courts make exceptions to allow limited discovery after a complaint 5 is filed to permit the plaintiff to learn the identifying information necessary to serve the 6 defendant. Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999); 7 see, e.g., UMG Recordings, Inc. v. Doe, No. C-08-3999-RMW, 2008 WL 4104207, at *2 8 (N.D. Cal. Aug. 29, 2008) (noting, in an infringement case, that “a plaintiff cannot have a 9 discovery planning conference with an anonymous defendant[,]” thus, limited expedited 10 discovery would “permit the [plaintiff] to identify John Doe and serve the defendant, 11 permitting this case to go forward.”). Consistent with this generally recognized exception 12 to Rule 26(f), the Ninth Circuit has held that “‘where the identity of the alleged defendant[] 13 [is] not [] known prior to the filing of a complaint[,] the plaintiff should be given an 14 opportunity through discovery to identify the unknown defendants, unless it is clear that 15 discovery would not uncover the identities, or that the complaint would be dismissed on 16 other grounds.’” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting 17 Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). 18 A party who requests early or expedited discovery must make a showing of good 19 cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 20 2002) (applying “the conventional standard of good cause in evaluating Plaintiff’s request 21 for expedited discovery”). Good cause is established through a balancing test “where the 22 need for expedited discovery, in consideration of the administration of justice, outweighs 23 the prejudice to the responding party.” Id. at 276. To determine whether “good cause” 24 exists to permit expedited discovery to identify Doe defendants, district courts in the Ninth 25 Circuit consider whether the plaintiff (1) “identif[ies] the missing party with sufficient 26 specificity such that the Court can determine that the defendant is a real person or entity 27 who could be sued in federal court”; (2) “identif[ies] all previous steps taken to locate the 28 elusive defendant” to ensure that plaintiff has made a good faith effort to identify the 1 defendant; and (3) “establish[es] to the Court’s satisfaction that plaintiff’s suit against 2 defendant could withstand a motion to dismiss.” Columbia Ins., 185 F.R.D. at 578–80. 3 Additionally, the plaintiff should demonstrate the discovery will likely lead to identifying 4 information that will permit service of process. Id. at 580. These factors are considered to 5 ensure the expedited discovery procedure “will only be employed in cases where the 6 plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant 7 pre-service, and will prevent use of this method to harass or intimidate.” Id. 8 III. DISCUSSION 9 Plaintiff contends that there is good cause for this Court to allow expedited 10 discovery. ECF No. 38-1 at 11–23. For the reasons stated below, the Court agrees. 11 a. Identification of Missing Party with Sufficient Specificity 12 To satisfy the first prong, Plaintiff must identify the defendant with enough 13 specificity to enable the Court to determine that defendant is a real person or entity who 14 would be subject to the jurisdiction of this Court. Columbia Ins., 185 F.R.D. at 578. Here, 15 Plaintiff has identified the Doe defendants with sufficient specificity. 16 First, Plaintiff explains that “this website is directed and controlled by individuals.” 17 ECF No. 38-1 at 12. The Court agrees that “Plaintiff has identified the website participating 18 in the sale of infringing goods, and Plaintiff has identified that Namecheap.com is the host 19 of the associated storefront. Effectively, Plaintiff has traced the allegedly infringing 20 conduct to its physical point of origin.” Id. “Without conscious intervention by a person or 21 an entity, infringing products are not listed, infringing products are not sold, and infringing 22 products are not shipped from www.lipozem.com.” Id.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 OBESITY RESEARCH INSTITUTE, Case No.: 3:25-cv-00877-BJC-AHG LLC, 12 ORDER GRANTING PLAINTIFF’S Plaintiff, 13 EX PARTE APPLICATION FOR v. LEAVE TO SERVE THIRD-PARTY 14 SUBPOENA PRIOR TO A RULE SUNRISE SELECTIONS LLC, et al., 15 26(f) CONFERENCE Defendants. 16 [ECF No. 38] 17 18 19 20 21 Before the Court is Plaintiff Obesity Research Institute, LLC’s (“Plaintiff”) Ex Parte 22 Application for Leave to Serve Third Party Subpoena Prior to a Rule 26(f) Conference. 23 ECF No. 38. No opposition briefs have been filed. See also ECF No. 38 at 2 (Plaintiff 24 contacted Amaz Group and counsel for Sunrise Selections regarding the instant ex parte 25 application, and “Defendant Sunrise Selections’ counsel has not contacted Plaintiff 26 regarding this Application. Defendant Amaz Group has not contacted Plaintiff regarding 27 this Application”). For the reasons discussed below, the Court GRANTS Plaintiff’s ex 28 parte application. 1 I. BACKGROUND 2 On April 14, 2025, Plaintiff filed a Complaint against Defendants Sunrise Selections 3 LLC, Amaz Group LLC, Leoris Holdings LLC, BuyGoods Inc., and Does 1–100 4 (collectively, “Defendants”). ECF No. 1. Plaintiff asserts that Defendants are infringing 5 their trademarks for “Lipozene” and using marks confusingly similar to it and, thus, are 6 engaging in unfair competition. Id. at 2. For example, “Plaintiff became aware that 7 Defendants were selling health supplement products via online platforms using the name 8 Lipozem, Lipo-zem, Lipozeme, and Lipo-zeme, causing consumer confusion and damage 9 to Plaintiff’s protected name.” ECF No. 15 at 2. 10 In the instant motion, Plaintiff seeks leave to conduct early discovery prior to the 11 mandated Rule 26(f) conference to learn the identities of a Doe defendant. ECF No. 38. 12 Specifically, Plaintiff seeks an order permitting it to serve a third-party subpoena under 13 Federal Rule of Civil Procedure 45 on Namecheap.com. ECF No. 38-1 at 5–6. Plaintiff 14 alleges that Doe defendant is operating the www.lipozem.com website, and is selling goods 15 that infringe on Plaintiff’s trademarks. Id. at 5–9; ECF No. 38-3 at 3, 5. Plaintiff explains 16 that Namecheap.com, who hosts the www.lipozem.com webstore, “is the only party with 17 the information necessary to properly identify the unknown Doe Defendant operating the 18 www.lipozem.com website by correlating the infringing retailer’s website with identifying 19 information that would allow Plaintiff to properly plead the unidentified infringing retailer 20 into this lawsuit.” ECF No. 38-1 at 5; see id. (Plaintiff cannot obtain further information 21 without a subpoena because “the ownership information for the website as viewable on 22 lookup.icann.org is redacted”). With the Rule 45 subpoena, Plaintiff hopes to “identity of 23 the Doe Defendant operating the identified website, further investigate the Doe 24 Defendant’s role in the infringement, and effectuate service upon the Doe Defendant.” Id. 25 at 6. Plaintiff represents to the Court that the subpoenas will demand the true name, 26 addresses, and contact information of the Doe defendants. Id. at 23. Additionally, Plaintiff 27 represents that it “will only use this information to prosecute the claims made in its 28 Complaint.” Id. at 6. 1 II. LEGAL STANDARD 2 A party is generally not permitted to obtain discovery without a court order before 3 the parties have conferred pursuant to Federal Rule of Civil Procedure 26(f). FED. R. CIV. 4 P. 26(d)(1). However, courts make exceptions to allow limited discovery after a complaint 5 is filed to permit the plaintiff to learn the identifying information necessary to serve the 6 defendant. Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999); 7 see, e.g., UMG Recordings, Inc. v. Doe, No. C-08-3999-RMW, 2008 WL 4104207, at *2 8 (N.D. Cal. Aug. 29, 2008) (noting, in an infringement case, that “a plaintiff cannot have a 9 discovery planning conference with an anonymous defendant[,]” thus, limited expedited 10 discovery would “permit the [plaintiff] to identify John Doe and serve the defendant, 11 permitting this case to go forward.”). Consistent with this generally recognized exception 12 to Rule 26(f), the Ninth Circuit has held that “‘where the identity of the alleged defendant[] 13 [is] not [] known prior to the filing of a complaint[,] the plaintiff should be given an 14 opportunity through discovery to identify the unknown defendants, unless it is clear that 15 discovery would not uncover the identities, or that the complaint would be dismissed on 16 other grounds.’” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting 17 Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). 18 A party who requests early or expedited discovery must make a showing of good 19 cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 20 2002) (applying “the conventional standard of good cause in evaluating Plaintiff’s request 21 for expedited discovery”). Good cause is established through a balancing test “where the 22 need for expedited discovery, in consideration of the administration of justice, outweighs 23 the prejudice to the responding party.” Id. at 276. To determine whether “good cause” 24 exists to permit expedited discovery to identify Doe defendants, district courts in the Ninth 25 Circuit consider whether the plaintiff (1) “identif[ies] the missing party with sufficient 26 specificity such that the Court can determine that the defendant is a real person or entity 27 who could be sued in federal court”; (2) “identif[ies] all previous steps taken to locate the 28 elusive defendant” to ensure that plaintiff has made a good faith effort to identify the 1 defendant; and (3) “establish[es] to the Court’s satisfaction that plaintiff’s suit against 2 defendant could withstand a motion to dismiss.” Columbia Ins., 185 F.R.D. at 578–80. 3 Additionally, the plaintiff should demonstrate the discovery will likely lead to identifying 4 information that will permit service of process. Id. at 580. These factors are considered to 5 ensure the expedited discovery procedure “will only be employed in cases where the 6 plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant 7 pre-service, and will prevent use of this method to harass or intimidate.” Id. 8 III. DISCUSSION 9 Plaintiff contends that there is good cause for this Court to allow expedited 10 discovery. ECF No. 38-1 at 11–23. For the reasons stated below, the Court agrees. 11 a. Identification of Missing Party with Sufficient Specificity 12 To satisfy the first prong, Plaintiff must identify the defendant with enough 13 specificity to enable the Court to determine that defendant is a real person or entity who 14 would be subject to the jurisdiction of this Court. Columbia Ins., 185 F.R.D. at 578. Here, 15 Plaintiff has identified the Doe defendants with sufficient specificity. 16 First, Plaintiff explains that “this website is directed and controlled by individuals.” 17 ECF No. 38-1 at 12. The Court agrees that “Plaintiff has identified the website participating 18 in the sale of infringing goods, and Plaintiff has identified that Namecheap.com is the host 19 of the associated storefront. Effectively, Plaintiff has traced the allegedly infringing 20 conduct to its physical point of origin.” Id. “Without conscious intervention by a person or 21 an entity, infringing products are not listed, infringing products are not sold, and infringing 22 products are not shipped from www.lipozem.com.” Id. The Court finds that Plaintiff has 23 sufficiently alleged that the Doe Defendants are real persons or entities. See Instant 24 Checkmate, LLC v. Does, No. 18cv2132-BAS-BGS, 2018 U.S. Dist. LEXIS 208098, at *4 25 (S.D. Cal. Dec. 7, 2018) (granting early discovery in trademark infringement case 26 involving a copied website, explaining that, “[a]lthough Plaintiff is unable to identify the 27 individual at this point, the initial research on who the site is registered to and the infringing 28 1 conduct alleged (wholesale copying of the website) suggest there is a person responsible 2 that may be identified through early discovery”). 3 Second, Plaintiff adequately alleges that the Doe defendant would be subject to this 4 Court’s jurisdiction. Plaintiff represents that “Doe defendants operate an e-commerce 5 storefront in the form of interactive websites that consumers utilize to make purchases of 6 products directly from Doe defendants[,]” i.e., “consumers must select products to 7 purchase and then input their shipping and payment information to complete the 8 transaction.” ECF No. 38-1 at 18. Plaintiff argues that this Court has personal jurisdiction 9 because “Doe defendants allegedly received consumer information including payment and 10 shipping data, then allegedly knowingly utilized that information to deliver products into 11 this forum despite being on notice that a California plaintiff would suffer harm due to Doe 12 defendants’ actions due to the fame of Plaintiff’s marks, which [] Plaintiff has spent 13 millions of dollars promoting.” Id. at 19. Plaintiff also alleges that “Doe defendants were 14 aware that harm would occur in California because Plaintiff is located in California” since 15 “Plaintiff’s trademark is famous.” Id. at 20. The Court finds that the prima facie elements 16 of personal jurisdiction have been met.1 See Herbal Brands, Inc. v. Photoplaza, Inc., 72 17 F.4th 1085, 1094 (9th Cir. 2023); see e.g., Instant Checkmate, 2019 WL 1170486, at *2 18 (finding that plaintiff sufficiently pled personal jurisdiction to warrant early discovery in a 19 trademark infringement case regarding copying of a website). 20 “The Court understands and appreciates the special difficulties involved in 21 uncovering the identities of defendants in these sorts of cases.” Whaleco Inc. v. Arslan, No. 22 CV-23-02549-PHX-DLR, 2024 WL 342459, at *3 (D. Ariz. Jan. 30, 2024) (granting early 23 discovery to obtain the contact information of the website owners in a trademark 24 25 26 1 The Court notes that its “conclusion on [] personal jurisdiction for purposes of obtaining early discovery is in no way binding as to any future motion to dismiss that might be filed 27 by Defendants should Plaintiff be successful in locating them.” Instant Checkmate LLC v. 28 Does, 18cv2132-BAS-BGS, 2019 WL 1170486, at *2 n.2 (S.D. Cal. Mar. 12, 2019). 1 infringement case regarding cybersquatting domain names). Based on all of the 2 information above, the Court concludes Plaintiff has provided a sufficient showing that it 3 seeks to sue a real person subject to the Court’s jurisdiction. Likewise, if Plaintiff obtains 4 the identifying information from Namecheap.com for the online storefront, the information 5 sought in the subpoena would likely enable Plaintiff to serve Doe defendant. Therefore, the 6 Court finds Plaintiff satisfied the “sufficient specificity” threshold. 7 b. Previous Attempts to Locate Defendant 8 Next, Plaintiff is required to describe all steps taken to identify the Doe defendants 9 in a good-faith effort to locate and serve them. Here, Plaintiff explains that it has “diligently 10 attempted to correlate Doe defendants’ shop information by searching for information 11 about these sellers on various web search tools” and has investigated the 12 www.lipozem.com website itself. ECF No. 38-1 at 22. Despite these diligent efforts, 13 Plaintiff was unable to identify any means of obtaining the identity of the Doe defendant 14 other than through subpoenaing the information from Namecheap.com. Id. at 21–22. Thus, 15 the Court finds that Plaintiff has shown it made a good-faith effort to identify and locate 16 the Doe defendants before resorting to filing the instant motion. 17 c. Whether Plaintiff Can Withstand a Motion to Dismiss 18 Lastly, Plaintiff must establish it could survive a motion to dismiss. See FED. R. CIV. 19 P. 12(b); Columbia Ins., 185 F.R.D. at 579. To survive a motion to dismiss for failure to 20 state a claim upon which relief can be granted, “a complaint must contain sufficient factual 21 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 22 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 23 (2007)). To present a prima facie case of trademark infringement under the Lanham Act, 24 15 U.S.C. § 1114, Plaintiff must show: “(1) that it has a protectible ownership interest in 25 the mark; and (2) that the defendant’s use of the mark is likely to cause consumer 26 confusion.’” Network Automation, Inc. v. Advanced Sys. Concepts, 638 F.3d 1137, 1144 27 (9th Cir. 2011) (quoting Dep’t of Parks & Rec. v. Bazaar Del Mundo, Inc., 448 F.3d 1118, 28 1124 (9th Cir. 2006)). 1 Here, Plaintiff’s Complaint clearly alleges that trademark infringement. As the 2 District Judge previously found, “Plaintiff has provided proof that it owns valid and 3 protectible federal trademark registrations for the Lipozene marks” and “the facts show 4 there is a likelihood of confusion among consumers.” ECF No. 15 at 4, 6; see also id. at 6 5 (“Plaintiff has demonstrated a likelihood of success on the merits”). Accordingly, the Court 6 concludes Plaintiff has met the third prong necessary to establish good cause for granting 7 early discovery. 8 IV. CONCLUSION 9 For the reasons set forth above, and for good cause shown, the Court GRANTS 10 Plaintiff’s ex parte application for leave to serve subpoena prior to a Rule 26(f) conference 11 (ECF No. 38). See, e.g., Pennymac Loan Servs., LLC v. Doe, No. 2:18-cv-05993-ODW- 12 RAO, 2018 WL 6521577, at *2 (C.D. Cal. Oct. 31, 2018) (granting early discovery in 13 trademark infringement case and explaining that, “[w]ithout leave to conduct this early 14 discovery, [plaintiff] is unable obtain this basic information, Doe’s identity, necessary to 15 serve Doe with the Complaint and advance the administration of justice. Doe will be 16 notified of the subpoenas, as ordered below, and will have an opportunity to respond before 17 Google discloses any information. Finally, all information obtained by way of this early 18 discovery shall be used only for the purpose of protecting [plaintiff]’s rights as set forth in 19 the Complaint, thus limiting any potential prejudice to Doe”). Accordingly, the Court 20 ORDERS as follows: 21 1. Plaintiff shall attach a copy of this Order to any subpoena. 22 2. Plaintiff may serve Namecheap.com with a Rule 45 subpoena commanding it 23 to provide Plaintiff with the names, addresses, and contact information of the 24 Doe defendants. 25 3. Within fourteen (14) calendar days after service of the subpoena, 26 Namecheap.com shall notify the sellers or subscribers that their identities are 27 sought by Plaintiff. Namecheap.com must also provide a copy of this Order 28 1 along with the required notice to the seller whose identity is sought pursuant 2 to this Order. 3 4. The seller whose identity has been subpoenaed shall have twenty-one (21) 4 calendar days from the date of such notice to challenge the disclosure of his 5 or her name and contact information by filing an appropriate pleading with 6 this Court contesting the subpoena. A seller who moves to quash or modify 7 the subpoena may proceed anonymously as “John Doe,” and shall remain 8 anonymous until the Court orders that the identifying information may be 9 released. 10 5. If Namecheap.com wishes to move to quash the subpoena, it shall do so before 11 the return date of the subpoena. The return date of the subpoena must allow 12 for at least forty-five (45) days from service to production. If a motion to 13 quash or other challenge is brought, Namecheap.com must preserve the 14 information sought by Plaintiff in the subpoena pending resolution of such 15 motion or challenge. 16 6. Plaintiff may only use the information disclosed in response to the Rule 45 17 subpoena served on Namecheap.com for the purpose of protecting and 18 enforcing Plaintiff's rights as set forth in its Complaint. 19 IT IS SO ORDERED. Dated: November 4, 2025 4. 02 Honorable Allison H. Goddard United States Magistrate Judge 23 24 25 26 27 28