Flycatcher Corp. Ltd. v. Affable Avenue LLC

Background

Flycatcher Corp. Ltd. and Flycatcher Toys Inc. sued fourteen defendants that allegedly sold on Amazon products bearing Flycatcher’s registered mark. Flycatcher alleged that the products were stolen, that the defendants advertised them without telling customers they were stolen, and that the sales caused trademark infringement, false or deceptive advertising, harm to customers, and other violations of federal and state law.

Substitute Service

Flycatcher had served most defendants but had not served two California limited liability companies: Top Experience Company LLC, doing business as We Pay Cost LLC, and Fortuna KG LLC, doing business as FortunakG.

For Top Experience, the company’s principal-office and registered-agent addresses were the same. A process server went there twice. On the first attempt, someone said no business by that name was there; on the second, the server could not reach the address because of a private gate or fence. Flycatcher stated that the company’s filing did not identify its principals or managers and that an attorney who contacted Flycatcher was not authorized to accept service.

For Fortuna KG, the registered principal-office and registered-agent addresses were also the same. A process server went to the address, but the occupant said he was a new tenant and that the business had moved. Flycatcher stated that, although the company filing identified an apparent principal, it had been unable to locate him.

Flycatcher relied on Federal Rule of Civil Procedure 4 and California Corporations Code § 17701.16. That California law permits service on the California Secretary of State when an LLC’s designated agent cannot be found with reasonable diligence and the statutory requirements are met. Flycatcher requested orders permitting that method of service for both companies.

Early Discovery

Federal Rule of Civil Procedure 26(d) generally limits discovery before the parties’ required discovery conference, unless a court authorizes earlier discovery. Courts in the Southern District of New York generally apply a flexible “good cause” standard to such requests.

Flycatcher said that some defendants had approached it about settling. To evaluate settlement, Flycatcher wanted to verify the defendants’ reported sales and remaining inventory. It requested permission to serve Amazon with a subpoena seeking records from a neutral third party. The requested information was limited to the named defendants, the period beginning when the goods were allegedly stolen, and the specific product identified by its Amazon Standard Identification Number. Flycatcher stated that Amazon required a court subpoena before releasing the information.

Ruling

The concluding text states that the court authorized the requested service and so-ordered the subpoena under separate cover. The Clerk of Court was directed to terminate the pending motion at docket entry 51. The available opinion text does not display a separate order using the words “granted” or “denied” for each request.