The Fashion Exchange LLC v. Hybrid Promotions, LLC

Background

The court had previously denied The Fashion Exchange LLC’s request to compel depositions of Jarrod Dogan, Gavin Dogan, and Brad Shapiro, Hybrid Promotions, LLC’s former chief executive officer. The Fashion Exchange then filed two motions: one seeking reconsideration of the denial of a second deposition of Jarrod Dogan, and another seeking to reopen discovery so it could serve its first deposition notices for Gavin Dogan and Brad Shapiro.

Motion for Reconsideration

Reconsideration is an extraordinary remedy generally limited to an intervening change in controlling law, newly available evidence, or the need to correct a clear error or prevent manifest injustice. The court explained that it is not an opportunity to present new theories or relitigate issues already decided.

The Fashion Exchange argued that the court had failed to consider that Judge Sidney Stein’s bifurcation of discovery prevented it from questioning Jarrod Dogan about willfulness during his first deposition. The court rejected that argument because The Fashion Exchange had not raised it in its original motion to compel, even though the bifurcation decision had occurred more than a year earlier. The court also found that The Fashion Exchange had already questioned Dogan about Hybrid’s trademark applications and willfulness and had deposed Hybrid’s organizational witness on those issues. The court therefore concluded that denying another deposition would not be manifestly unjust and denied the motion for reconsideration.

Motion to Reopen Discovery

A party seeking to reopen discovery must show good cause, including that it acted diligently but could not reasonably meet the applicable deadline. The Fashion Exchange sought depositions of Shapiro and Gavin Dogan to address information it viewed as insufficiently provided by Hybrid’s organizational witness.

The court held that dissatisfaction with an organizational witness’s answers did not entitle The Fashion Exchange to select a different or additional witness. It also found that The Fashion Exchange had not acted diligently: it had never issued deposition notices or subpoenas for Shapiro or Gavin Dogan, and it waited more than two months after claiming to have learned of the need for Shapiro’s deposition before raising the issue with the court. The court further noted that The Fashion Exchange had pleaded willfulness from the beginning of the action and therefore could not show that it needed new evidence to respond to a newly raised defense or claim. The court denied the request to reopen discovery.

Disposition

Judge Ona T. Wang denied The Fashion Exchange’s request to reopen discovery and denied its motion for reconsideration of the April 9, 2019 order. The clerk was directed to close docket entries 308 and 310.