Otter Prods. v. Big Birds, LLC

1

OTTER PRODUCTS, LLC, and TREEFROG DEVELOPMENTS, INC., Plaintiffs, v. BIG BIRDS, LLC, DAVE'S MARKET, LLC, DAVID PAIGE, JUDAH HOLLAND, and JOHN DOES 1-10, individually or as corporate/business entities, Defendants.

BIG BIRDS, LLC and DAVE'S MARKET, LLC, Counterclaim-Plaintiffs, v. OTTER PRODUCTS, LLC, and TREEFROG DEVELOPMENTS, INC., Counterclaim-Defendants.

Civil Action No. 19-cv-00626-DME-KLM

United States District Court, D. Colorado

September 27, 2021

ORDER

KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Plaintiffs' Daubert Motion to Exclude Defendants' Expert Robert Wallace [#84] ^[1] (the “Motion”). Defendants filed a Response [#98] in opposition to the Motion [#84], and Plaintiffs filed a Reply [#102].

Pursuant to 28 U.S.C. § 636 (b)(1)(A) and D.C.COLO.LCivR 72.1(c), the Motion [#84] has been referred to the undersigned for disposition. See [#86]. The Court has reviewed the briefs, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#84] is DENIED without prejudice in part and DENIED in part

I. Background

This matter arises out of a trademark infringement dispute related to the sale of cell phone protective cases on the internet specifically, on Amazon.com (“Amazon”). Plaintiffs manufacture and sell cell phone protective cases under various registered trademarks, including OtterBox® and LifeProof®. Am. Compl. [#21] at 10-11. Plaintiffs distribute the cases through their authorized distributors and resellers, and sell directly to consumers through their own website. Id. at 10. Defendants purportedly obtain Plaintiffs' products “from various sources” and resell them on Amazon “without Plaintiffs' authorization.” Motion [#84] at 5. Plaintiffs filed the present suit alleging that Defendants infringe on Plaintiffs' trademarks and cause consumer confusion because “their products are not subject to Plaintiff's [sic] quality controls and are materially different from Plaintiffs' products as they lack Plaintiffs' warranty.” Id.

Plaintiffs timely disclosed their expert statistician, Dr. Charles Cowan (“Cowan”), who executed a statistical consumer survey for Plaintiffs. Id. at 6. The purpose of Dr Cowan's survey was to “conduct comparisons between consumer expectations when OtterBox products are sold by authorized resellers as opposed to when they are sold by unauthorized resellers such as [Defendants].” Cowan Expert Report [#84-8] at 6. Dr Cowan's survey found that (1) Defendants' Amazon storefronts create consumer confusion and cause consumers to falsely believe that Defendants are authorized sellers of Plaintiffs' products, which they are not; (2) Defendants' Amazon storefronts cause consumers to believe that products sold by Defendants include Plaintiffs' warranty; (3) consumers are more likely to purchase Plaintiffs' product which comes with Plaintiffs' warranty; (4) consumers incorrectly believe that Defendants' products are inspected, handled, and shipped according to Plaintiffs' quality control requirements; (5) consumers are more likely to purchase Plaintiffs' product which is inspected, handled, and shipped according to Plaintiffs' quality controls; and (6) Defendants' sale of materially different products bearing Plaintiffs' trademarks harms Plaintiffs through consumer confusion and negative reviews. Id. at 3.

Defendants timely disclosed their rebuttal expert, Robert Wallace (“Wallace”), an expert in brand identity, who critiqued Dr. Cowan's report and executed his own consumer survey to “rebut Dr. Cowan's opinions regarding the materiality of Plaintiffs' alleged warranty and quality controls.” Motion [#84] at 6-7; Response [#98] at 10. Mr. Wallace critiqued Dr. Cowan's report on the following six grounds: (1) Dr. Cowan did not screen his respondents from relevant consumers; (2) Dr. Cowan did not have enough respondents; (3) Dr. Cowan failed to include a control group; (4) Dr. Cowan used leading and biased questions; (5) Dr. Cowan's focus on source and consumer confusion are irrelevant; and (6) Dr. Cowan did not show evidence of brand dilution. Motion [#84] at 6-7. In Mr. Wallace's own consumer survey, he concluded that “the manufacturer's warranty and its quality control procedures do not play a material role in driving consumer purchase decisions.” Response [#98] at 10-11. In the present motion, Plaintiffs move to exclude Mr. Wallace's opinions pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Motion [#84] at 7-8.

II. Analysis

A. Timeliness and Local Rule 7.1(a)

At the outset, the Court addresses two procedural arguments raised by Defendants in their Response [#98]. First, to the extent Defendants argue that Plaintiffs' Motion [#84] is untimely, this argument is rejected. Response [#98] at 12-13. Although the undersigned has a set deadline for filing motions to exclude expert testimony in cases over which she presides on consent of the parties, that order was not entered in this case because Judge Ebel is the presiding judge. His practice standards do not contain a deadline for filing motions to exclude expert testimony, and the parties did not ask to set one in the Scheduling Order. Thus, because the Motion [#84] was reasonably filed by the dispositive motion deadline, the Court cannot find that the Motion [#84] was untimely.

Second, Defendants argue that Plaintiffs failed to comply with the duty to confer under Local Rule 7.1(a), which provides: “Before filing a motion, counsel for the moving party . . . shall confer or make reasonable, good faith efforts to confer with any opposing counsel . . . to resolve any disputed matter. The moving party shall describe in the motion, or in a certificate attached to the motion, the specific efforts to fulfill this duty.” In the Motion [#84], Plaintiffs merely state: “Pursuant to Local Rule 7.1(a), Plaintiffs have conferred with Defendants regarding this motion by email and Defendants have indicated that they oppose it.” Motion [#84] at 5.

It is clear from the Court's review that Plaintiffs have violated Rule 7.1(a). The rule requires counsel to attempt “to resolve any disputed matter.” This means that counsel must engage in “meaningful negotiations.” See Hoelzel v. First Select Corp., 214 F.R.D. 634, 635-36 (D. Colo. 2003) (stating that Rule 7.1(a) “is not satisfied by one party sending a single e-mail [, letter, or voice message] to another party”). At 1:32 p.m. on February 5, 2021, Plaintiffs' counsel sent Defendants' counsel an email stating that they “are going to proceed [with] filing [their] . . . Daubert motion.” Response [#98] at 13. The email did not request Defendants' position on the Motion, which was filed a little more than an hour later, at 2:34 p.m. that same day. Id.

Plaintiffs assert that they complied with Rule 7.1(a) by referencing a phone call by their attorney William Kloss, Jr. (“Kloss”) to Defendants' attorney Mark Berkowitz, which took place on December 2, 2020. Reply [#102] at 3. According to a Declaration [#102-1] filed by Mr. Kloss:

On December 2, 2020, I had a call with Defendants' counsel Mark Berkowitz in which we discussed settlement, summary judgment, and Plaintiff's current Daubert motion. During that call, I informed Mr. Berkowitz that I would be filing both a summary judgment motion and a Daubert motion to exclude Defendants' expert Robert Wallace. I expressed to Mr. Berkowitz that I believed that Mr. Wallace was not qualified to give his opinions and that his opinions were not relevant. Mr. Berkowitz disagreed. Mr. Berkowitz also made clear that his clients intended to file a summary judgment motion. Mr. Berkowitz did not express any belief on the December 2, 2020 call that our proposed Daubert motion would be untimely or otherwise improper. Our conversation on the issue was quite brief and we had no further conversations regarding the motion.

Decl. of Kloss [#102-1] ¶¶ 3-5.

Plaintiffs raise as many as a dozen issues in the Motion [#84], depending on how one groups their wide-ranging arguments. Clearly, there were no “meaningful negotiations” about the issues raised in the Motion [#84] during the December 2, 2020 call. See Hoelzel, 214 F.R.D. at 635-36. In fact, Mr. Kloss conceded that the conversation on the Daubert motion “was quite brief and the only conversation the parties had about it. Decl. of Kloss [#102-1] ¶ 5. Under Rule 7.1(a), “the parties must hold a conference, possibly through the exchange of correspondence but preferably through person-to-person telephone calls or face-to-face meetings, and must compare views and attempt to reach an agreement.” Hoelzel, 214 F.R.D. at 636. That did not happen during this phone call based on the information before the Court.

The February 5, 2021 e-mail also provided no attempt “to resolve any disputed matter” prior to the filing of the Motion [#84]. D.C.COLO.LCivR 7.1(a). Indeed, the Motion [#84] was filed one hour and two minutes later, and there is no indication before the Court that Defendants' counsel responded to or even saw this message before the Motion [#84] was filed. See Response [#98] at 13. Thus, there was no opportunity here to confer about the merits of the many issues raised in the Motion [#84]. Further, the Court notes that Plaintiffs state in their Reply [#102] that this email was merely a “reminder” to Defendants that they would be filing the Motion [#84] and that the real conferral was the telephone call discussed above. Reply [#102] at 3. This is in direct opposition to their conferral statement made in the Motion [#84], where they said “Pursuant to Local Rule 7.1(a), Plaintiffs have conferred with Defendants regarding this motion by email and Defendants have indicated that they oppose it.” Motion [#84] at...