Everytown for Gun Safety Action Fund, Inc. v. Defcad, Inc.
- Paul Gardephe
- 1:21-cv-08704
- U.S. District Court · Southern District of New York
- 3
In Everytown v. Defcad, Judge Gardephe adjourned a hearing, sought briefing on trademark theories, and ordered Defcad to say whether it would comply with expedited discovery.
Everytown, Defcad, Inc., and the other defendants— including the anonymous online users—were affected. Everytown had to brief its trademark theories, and Defcad had to state whether it would comply with the expedited discovery order.
What happened
Everytown for Gun Safety Action Fund, Inc. sued Defcad, Inc. and other defendants, including anonymous users, in a dispute involving alleged trademark infringement and online products. The court had previously ordered Defcad to provide information identifying defendants, their operations and accounts, communications about the alleged infringement, product access or downloads, and related complaints.
Defcad asked the court to pause that expedited discovery order, but the court denied the request. Defcad then sought relief from the Second Circuit, which ultimately denied the request and denied the stay request as moot. The district court said the discovery was important to deciding whether it had authority over the defendants, and found that anonymous, unsigned declarations submitted by defendants had no evidentiary value.
In Everytown for Gun Safety Action Fund, Inc. v. Defcad, Inc., Judge Paul G. Gardephe adjourned the scheduled hearing without setting a new date and ordered Everytown to file a brief explaining whether it was pursuing direct or contributory trademark infringement against Defcad. The court said an amended complaint would be necessary if Everytown pursued contributory infringement, and directed Defcad to state whether it would immediately comply with the earlier discovery order; the court said it would consider contempt sanctions if Defcad did not comply.
The detailed version
- Everytown for Gun Safety Action Fund, Inc. v. Defcad, Inc. · No. 1:21-cv-08704
- Paul Gardephe
- Dec. 14, 2021
Background
Everytown for Gun Safety Action Fund, Inc. brought claims against Defcad, Inc., several anonymous online users, The Gatalog, and Phillip Royster. The order discusses Everytown’s trademark-infringement theory against Defcad and alleged infringing products.
On November 5, 2021, the court ordered Defcad to provide expedited discovery. The requested information included the true identities and addresses of defendants; information about relevant operations, seller accounts, online accounts, financial accounts, and payment methods; communications concerning Everytown’s infringement notice; the number of times the alleged infringing products had been accessed or downloaded; and related complaints.
Defcad filed an emergency motion to stay, or pause, the expedited discovery order. The court denied that motion on November 9, 2021. Defcad then petitioned the Second Circuit for an extraordinary court order and sought stays. The Second Circuit granted an administrative stay while considering the petition, but on November 23, 2021, denied the petition and denied the stay motion as moot.
Court’s Action
The district court stated that the requested discovery was important to the personal-jurisdiction issue—whether the court had legal authority over the defendants—because deciding that issue before learning the anonymous defendants’ identities could be premature. The court rejected anonymous, unsigned declarations submitted by defendants as having no evidentiary value.
The court adjourned the December 15, 2021 hearing without setting a new date. It directed Everytown to file a letter brief explaining its trademark-infringement theory against Defcad, including whether it intended to proceed under a direct-infringement theory or a contributory-infringement theory. The court stated that, if Everytown pursued contributory infringement, an amendment would be necessary because the complaint did not plead that theory against Defcad. The court set deadlines of December 22, 2021, for Everytown’s letter brief and December 31, 2021, for opposition papers.
The court also directed Defcad, Inc. to submit a letter by 5:00 p.m. on December 15, 2021, stating whether it would immediately comply with the November 5 discovery order. The court stated that it would consider a motion for contempt sanctions if Defcad did not comply. This order addressed discovery, briefing, and compliance; it did not decide the underlying trademark-infringement claims.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.