Free Motion for Discovery - District Court of California - California

Case 3:08-cv-01296-IEG-RBB

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MITCHELL B. DUBICK, ESQ. (Bar No. 101658) [email protected] THOMAS W. FERRELL, ESQ. (Bar No. 115605) [email protected] HIGGS, FLETCHER & MACK LLP 401 West "A" Street, Suite 2600 San Diego, CA 92101-7913 TEL: 619.236.1551 FAX: 619.696.1410 Attorneys for Plaintiff ATI INDUSTRIES, INC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ATI INDUSTRIES, INC., Plaintiff, v. ART AND FRAME MART CORPORATION; DOES 1-10; and ROES 1-100, Defendants.

CASE NO. 08-CV-1296 IEG (RBB)

AMENDED EX PARTE APPLICATION FOR: (1) AUTHORITY TO SERVE SUBPOENA ON DEFAULTED DEFENDANT, RELIEVING PLAINTIFF OF ITS OBLIGATIONS UNDER F.R.C.P. 26(F)

The sole defendant (a corporation) is in default for failure to respond to the Complaint within the time required by the Federal Rules of Civil Procedure. Plaintiff, ATI INDUSTRIES, INC. ("ATI"), files this ex parte application for an order authorizing service upon defendant and its President of the attached subpoenas, thereby permitting discovery under Federal Rules of Civil Procedure Rule 26(d) and (f) prior to ATI "formally" conferring with defendant ART AND FRAME MART CORPORATION. ATI states in support:
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(1) No. 9) (2)

The Clerk of this Court entered the default of defendant ART AND

FRAME MART CORPORATION on August 28, 2008. (Court Docket Document Local Rule 55.1, requires plaintiff ATI to move for a default judgment

within thirty (30) days after the entry of default was issued. But ATI needs minimal damages discovery in order to establish the principal component of damages under the copyright laws (disgorgement of defendant's infringing profits under 17 U.S.C. 504(a)) prior to moving for a default judgment in this matter. (3) The documents needed to establish its claim for damages are simple and easily retrieved by the defendant from its records. ATI listed the documents requested in the subpoenas attached as Exhibit A and Exhibit B to this ex parte application. These are the categories: 1. Documents sufficient to show the names, last known addresses, telephone numbers and e-mail addresses for all entities and persons who supplied the Infringing Certificate to Art and Frame Mart Corporation. Documents sufficient to show the names, last known addresses, telephone numbers and e-mail addresses for all entities and persons to whom Art and Frame Mart Corporation distributed, shipped or otherwise transferred an Infringing Certificate when it was attached to or accompanied a painting after July 20, 2005. Documents sufficient to show per unit sales of paintings sold, shipped or transferred with the Infringing Certificate by Art and Frame Mart Corporation to each entity and person identified in paragraph (2) above. Documents sufficient to show all revenue received from the sales, shipments or transfers of paintings identified in paragraph (3) above.

2.

3.

4. (4)

Because this matter is proceeding under default procedures, the parties

will not have an Early Neutral Evaluation Conference, a key step in commencing discovery in compliance with F.R.C.P. Rule 26(d) and (f) under ordinary circumstances.
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(5)

ATI requests this Court issue an Order authorizing ATI to issue and

serve the attached subpoenas requiring defendant to produce such documents for ATI's use in presenting an accurate claim for damages to the Court in the default judgment prove-up. Those actual documents will be available for the Court at the time of the prove up so that the Court can consider the documents, if it so chooses, to confirm the fairness of ATI's damages claim. (6) ATI requests this Court issue the order under F.R.C.P. Rule 26(d) authorizing it to conduct this limited discovery, through the attached subpoenas, prior to and without the need to confer further with the defendant as required under F.R.C.P. Rule 26(f). The subpoenas will not surprise the defendant or its President. The Court's Docket reveals: the Complaint was served personally on the President; the undersigned served all of the papers requesting entry of default on the defendant's outside counsel; the undersigned served the Court's Default Order on defendant's outside counsel; and we have served this request on defendant and its outside counsel. (7) In order to create no surprise, the undersigned sent these document requests in writing to defendant's outside counsel on August 6, 2008 and stated the need for this minimal discovery by telephone and in writing as early as August 5, again on August 6 and on August 7. The written correspondence and the telephone calls are all set forth in the Declaration of Thomas W. Ferrell in support of the entry of default, dated and filed August 27, 2008. (Attached as Exhibit C to this Application. It is attached to the Court's Docket Document No. 7). The document request is not burdensome. The Defendant is in the business of selling goods with the "Infringing Certificate" to wholesale and retail customers and undoubtedly in the ordinary course of its business, keeps the information about sales and revenue in spreadsheet form or other equally accessible form. WHEREFORE, ATI respectfully requests this Court enter an order authorizing service of the attached subpoenas, thereby permitting discovery under
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Federal Rules of Civil Procedure Rule 26(d) and (f) prior to conferring formally with defendant ART AND FRAME MART CORPORATION, which has been defaulted by the Court. DATED: August 27, 2008 HIGGS, FLETCHER & MACK LLP By: /s/Thomas W. Ferrell_______ THOMAS W. FERRELL Attorneys for Plaintiff ATI INDUSTRIES, INC.

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