SiteLock LLC v. GoDaddy.com LLC

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 SiteLock LLC, No. CV-19-02746-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 GoDaddy.com LLC,

13 Defendant. 14 15 Pending before the Court is GoDaddy’s motion to modify the case management 16 order and continue the trial date. (Docs. 499, 500.) Following expedited briefing (Docs. 17 503, 504, 505), the motion is now ripe for resolution. For the following reasons, the motion 18 is denied. 19 RELEVANT BACKGROUND 20 A. General Case Developments 21 This case was filed in April 2019 (Doc. 1), so it already has been pending for three- 22 and-a-half years. It has generated extensive, often contentious motion practice on a wide 23 range of issues. 24 In March 2022, after resolving the parties’ cross-motions for summary judgment, 25 the Court issued an order requiring the parties to meet and confer and then file a notice 26 concerning potential trial dates. (Doc. 436.) In the notice, the parties stated that “the 27 earliest dates on which the Parties are currently available to begin trial are November 1, 28 2022, or November 8, 2022.” (Doc. 443 at 2.) Accordingly, the Court issued an order 1 setting a trial date of November 1, 2022. (Doc. 444.) 2 B. Expert Developments 3 Under the original scheduling order, the deadline for filing motions to exclude 4 expert testimony was November 2, 2020. (Doc. 22.) However, following various 5 extension requests and extensions, that deadline was extended to July 19, 2021. (Doc. 6 318.) 7 On July 12, 2021, a week before that deadline expired, GoDaddy filed a motion for 8 another extension. (Docs. 330, 331.) In support of this request, GoDaddy explained that 9 it had issued Rule 45 subpoenas to obtain information from two of SiteLock’s experts (Dr. 10 Steven Kursh and Rhonda Harper), that it had been forced to file motions to compel with 11 respect to those subpoenas, that the motion-to-compel litigation (which was occurring in 12 the District of Massachusetts with respect to Dr. Kursh and the Northern District of Texas 13 with respect to Harper) remained unresolved, and that it needed the subpoenaed materials 14 in order to prepare its Daubert and summary judgment motions. (Id.) 15 Following a hearing on July 15, 2021, the Court agreed to extend the deadline for 16 Daubert motions to August 16, 2021 and stated that “when a decision is issued in either 17 the Texas case or the Massachusetts case . . . counsel are to immediately meet and confer 18 and file a joint notice no later than 3 business days from the date the decision is rendered 19 advising the Court regarding the next steps to be taken in this case in light of the decision. 20 The Court will then schedule a status hearing to discuss the parties’ joint notice.” (Doc. 21 336.) 22 One week later, on July 22, 2021, the parties filed a joint notice informing that Court 23 that GoDaddy’s motion to compel in the District of Massachusetts concerning Dr. Kursh 24 had been denied. (Doc. 339.) Accordingly, GoDaddy was able to file its Daubert motion 25 with respect to Dr. Kursh by the August 16, 2021 deadline. (Docs. 356, 357.) The Court 26 resolved that motion in the same March 2022 order that also resolved the parties’ cross- 27 motions for summary judgment. (Doc. 435.) 28 Unfortunately, the ruling from the Northern District of Texas with respect to Harper 1 did not proceed at the same pace. Accordingly, on a roughly monthly basis between August 2 2021 and July 2022, GoDaddy filed motions explaining that the parties were still awaiting 3 a ruling as to Harper and requesting a corresponding 30-day extension of GoDaddy’s 4 deadline to file a motion to exclude Harper. (Docs. 349, 385, 404, 409, 416, 421, 426, 437, 5 446, 452, 460, 481, 492.) All of these requests were granted. (Docs. 353, 398, 408, 413, 6 420, 425, 430, 442, 450, 456, 464, 485, 496.) Accordingly, the current deadline for 7 GoDaddy to file a motion to exclude Harper is September 12, 2022. (Doc. 496.) 8 On August 5, 2022, the parties filed a joint notice informing the Court that “on 9 August 2, 2022, the Honorable Magistrate Judge Renee Harris Toliver, in the United States 10 District Court for the Northern District of Texas, entered a decision denying GoDaddy’s 11 Expedited Motion To Compel Response To Rule 45 Subpoena Directed To SiteLock’s 12 Expert, Rhonda Harper.” (Doc. 497.) 13 On August 16, 2022, GoDaddy filed objections to the order denying its motion to 14 compel. (Doc. 501 ¶ 4.) It appears the objections will not become fully briefed until 15 September 20, 2022. (Id.) 16 On August 29, 2022, GoDaddy filed the motion now pending before the Court. 17 (Docs. 499, 500.) 18 On August 30, 2022, the Court issued an order requiring expedited briefing. (Doc. 19 503.) 20 On September 1, 2022, SiteLock filed an opposition. (Doc. 504.) 21 On September 2, 2022, GoDaddy filed a reply. (Doc. 505.) 22 ANALYSIS 23 A. The Parties’ Arguments 24 GoDaddy asks the Court to postpone the trial date and grant another extension of its 25 deadline to file a motion to exclude Harper. (Doc. 500.) In essence, GoDaddy’s position 26 is that the recent denial of its motion to compel as to Harper should not be treated as a final 27 ruling because the order remains subject to review by a district judge in the Northern 28 District of Texas “and, if necessary, . . . appeal to the Fifth Circuit.” (Id. at 9.) GoDaddy 1 contends that it has been diligent in seeking relief and that the requested relief is necessary 2 because “[p]ostponing trial until the Motion to Compel is fully resolved eliminates the 3 possibility that parallel proceedings culminate in competing appeals with potentially 4 inconsistent results and serves the useful purpose of ensuring that this entire case proceeds 5 to trial with all expert discovery issues fully and finally resolved.” (Id. at 10.) 6 Alternatively, GoDaddy argues that because Harper’s testimony is only relevant to 7 SiteLock’s trademark infringement claim, another option would be “bifurcating trial such 8 that SiteLock’s trademark infringement claim is tried separately at a later date.” (Id. at 11.) 9 SiteLock opposes GoDaddy’s request for a variety of reasons. (Doc. 504.) It 10 summarizes its position as follows: 11 The centerpiece of GoDaddy’s litigation strategy has been to delay trial, raise a flurry of disputes unrelated to the merits of the case, and increase 12 SiteLock’s costs at every turn. GoDaddy’s latest maneuver in its Russian 13 Winter Campaign is to demand an indefinite delay of trial while it pursues multiple appeals of a third-party discovery ruling on a tangential issue that 14 GoDaddy has already (correctly) lost. Such relief is completely 15 unprecedented. GoDaddy cites no case where any court in the country has ever continued a trial indefinitely while a party appeals a third-party 16 discovery ruling it lost. The research SiteLock has done in the time allotted 17 has likewise uncovered no such case. The Court should reject GoDaddy’s invitation for such an extraordinary and drastic ruling. 18 Moreover, GoDaddy cannot come close to meeting the stringent test for a 19 continuance. GoDaddy was not diligent in pursuing the disputed discovery; 20 instead, it tactically delayed resolution of its motion. A continuance would be pointless because GoDaddy’s appeal of the discovery ruling is meritless. 21 SiteLock would suffer severe prejudice from this delay, which would 22 inconvenience its counsel and witnesses and significantly increase its costs of preparing for trial. This case has been pending for more than three years. 23 GoDaddy has hidden from its day of reckoning long enough. The Court 24 should deny GoDaddy’s motion and trial should begin on November 1. 25 (Id. at 1.) 26 In reply, GoDaddy argues that SiteLock is to blame for the fact that the Harper- 27 related litigation is occurring elsewhere (because SiteLock and its expert would not consent 28 to transfer the dispute to this Court); that it is not seeking an indefinite stay of trial but 1 merely a three-month stay; that the materials at issue are critical to its ability to challenge 2 the admissibility of Harper’s testimony and cross-examine her at trial; that it is likely to 3 prevail during further proceedings in Texas because “[t]he Magistrate Court’s decision is 4 contrary to law or clearly erroneous” and because SiteLock has been unable “to identify 5 any authority to support its refusal to disclose Ms. Harper’s Pilot Survey”; that SiteLock 6 has not substantiated its claim that it would suffer prejudice from a stay; and that SiteLock 7 has not offered valid reasons for opposing bifurcation. (Doc. 505.) 8 II. Analysis 9 Although GoDaddy’s reasons for seeking a continuance of the trial date are not 10 without force, the Court concludes in its discretion that the request should be denied. 11 As an initial matter, it bears emphasizing that this case has been pending for over 12 three-and-a-half years. It is long overdue to be tried. Cf. Harner v. USAA General 13 Indemnity Co., 2022 WL 1138145, *2 (S.D. Cal. 2022) (“[U]nder the Civil Justice Reform 14 Act of 1990, . . . district courts are encouraged to ensure timely termination of all cases 15 within three years of filing. This case has been pending . . . [for] three years and eight 16 months. The requested 90-day continuance would cause this case to have been pending for 17 almost four years, one year above the recommended three year termination deadline. By 18 setting a trial date of May 10, 2022, this Court intends to adhere to the Legislature’s 19 mandate to district courts to ‘ensure just, speedy, and inexpensive resolutions of civil 20 disputes,’ 28 U.S.C. § 471, by ensuring trial of this matter as close to three years of the 21 date of filing as possible. Three years and eight months is ample time for any case to 22 proceed to trial.”). 23 This consideration helps frame the consideration of GoDaddy’s extension request. 24 Although the Court disagrees with SiteLock’s attempts to blame GoDaddy for how the 25 Harper litigation has unfolded in the Northern District of Texas—from the Court’s vantage 26 point, GoDaddy has done everything it can to pursue relief in a timely and reasonable 27 manner—the analysis here does not turn solely on whether GoDaddy has been diligent in 28 pursuing relief. Under LRCiv 40.2(b), “[a]fter a case is set for pretrial or trial, it shall not 1 be continued except as justice requires.” Similarly, under Rule 16(b)(4), the contents of a 2 scheduling order—including the trial date, see Fed. R. Civ. P. 16(b)(3)(B)(vi)—may be 3 modified only for “good cause.” Although the good-cause standard “primarily considers 4 the diligence of the party seeking the amendment,” it also allows for consideration of “the 5 existence or degree of prejudice to the party opposing the modification.” Johnson v. 6 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Here, a continuance of the 7 trial date in this long-overdue-to-be-tried case would be prejudicial to SiteLock because it 8 would result in additional expense and delay. This outcome would also be inconsistent 9 with Rule 1 of the Federal Rules of Civil Procedure, which exhorts courts to administer all 10 of the rules in a manner intended to “secure the just, speedy, and inexpensive determination 11 of every action and proceeding.” 12 The Court is also unpersuaded by GoDaddy’s contention that it is not seeking an 13 open-ended extension of the trial date but merely a three-month extension. This three- 14 month figure is arbitrary because there is no fixed timeline for when GoDaddy’s objections 15 will be resolved by the district judge in the Northern District of Texas. Additionally, 16 GoDaddy alluded in its motion to a possible appeal to the Fifth Circuit if it remains 17 dissatisfied after the district judge rules. Under the logic that gives rise to the current 18 extension request, the Court would need to continue postponing the trial date (beyond the 19 three-month extension requested here) until all of those steps are resolved. 20 Under the circumstances, the best outcome is to maintain the current trial date (as 21 well as the current deadline for any motion to exclude Harper). This is an imperfect 22 solution because it is possible that GoDaddy will eventually prevail in future proceedings 23 in the Northern District of Texas and/or the Fifth Circuit and come into possession of 24 documents it would have used as a basis for seeking to exclude and/or cross-examine 25 Harper. In that scenario, and if SiteLock prevails on its trademark claim at trial, there may 26 be litigation (the resolution of which the Court, to be clear, does not prejudge) over whether 27 GoDaddy is entitled to some form of relief. Nevertheless, GoDaddy’s proposed solutions 28 are even more imperfect. It would be improper to issue what is essentially an open-ended 1 || stay of trial for the sole purpose of enabling GoDaddy to pursue multiple stages of review || of a discovery ruling related to expert material that, for all the Court knows, has little to no || bearing on this case. And as for bifurcation, that would certainly drive up the parties’ costs and cause delay, whereas such harms are only a possibility under the current schedule. 5 Accordingly, 6 IT IS ORDERED that GoDaddy’s motion to postpone trial and modify the case || management order (Doc. 499) is denied. The trial date of November 1, 2022 is confirmed, 8 || as is the deadline of September 12, 2022 for any motion to exclude Harper. The latter || deadline cannot be further extended without running up against the trial date, which is firm. 10 Dated this 2nd day of September, 2022. 11 12 om ee 13 } t _ Dominic W. Lanza 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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