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Oceans Cuisine, Ltd. v. Fishery Products International

April 21, 2006


The opinion of the court was delivered by: Hurley, District Judge


Plaintiff Oceans Cuisine, Ltd. ("Plaintiff") has filed five objections to three Orders of Magistrate Judge Jamie Orenstein, one dated January 30, 2006, and two dated February 6, 2006.*fn1 For the reasons that follow, four of Plaintiff's objections are denied and one is granted.


I. Background Leading up to the Orders at Issue

Plaintiff filed this trademark infringement case on August 2, 2005, alleging, inter alia, that the use of the business name "Ocean Cuisine International" by defendants Fishery Products International, Inc. and Fishery Products International Limited (collectively, "Defendants") infringed upon Plaintiff's rights to the trade name and trademark Oceans Cuisine. The Complaint asserts claims for injunctive relief and seeks actual damages. With regard to the latter, the Complaint does not assert a claim for corrective advertising costs and does not specify any amount of actual damage.

Two months later, Plaintiff filed a motion for a temporary restraining order and emergency injunctive relief. On October 21, 2005, I denied Plaintiff's motion and granted Defendants' motion for expedited discovery. I also ordered that discovery be completed within sixty days and indicated that a trial would follow soon thereafter.

On October 24, 2005, the parties agreed to a joint discovery plan, which was approved by Magistrate Judge Orenstein, requiring that all discovery be completed by December 30, 2005, except upon a showing of extraordinary circumstances. On October 28, 2005, Plaintiff submitted its Initial Disclosures, stating that the extent of Plaintiff's damages was currently undetermined. On November 16, 2005, Plaintiff responded to Defendants' First Set of Interrogatories, stating that its damages could not be determined until Plaintiff had an opportunity to review Defendants' responses to Plaintiff's discovery demands and to complete its depositions.

Thereafter, on November 28, 2005, both parties filed motions to compel.

Specifically, and relevant to the instant appeal, Defendants moved to compel Plaintiff to "provide the computation of its alleged damages, including lost profits (if any), which Plaintiff has failed to do even after we conferred with counsel on the issue." (Defs.' Nov. 28, 2005 Letter at 1.) By Order dated December 5, 2005, Judge Orenstein ordered Plaintiff to supplement its initial disclosure regarding the calculation of its damages by December 9, 2005. (See Dec. 5, 2005 Order.) Plaintiff's December 9, 2005 supplemental disclosures again failed to identify any actual damages, stating instead that its actual damages were undetermined and identified the amount of Defendants' gross profits as part of the relief it sought. Moreover, Plaintiff's initial disclosures and supplemental disclosures did not assert any claim for the costs of corrective advertising.

On December 30, 2005, Plaintiff retained new counsel to act as co-counsel with Plaintiff's existing counsel. New counsel requested a three week extension of discovery. On January 5, 2006, the parties appeared for a conference before Judge Orenstein at which time he extended the discovery cut-off to January 20, 2006 to: (1) allow Plaintiff to take depositions of five non-parties; and (2) afford Defendants time to produce "two items of document production" requested by Plaintiff. (Jan. 5, 2006 Order.) The Order explicitly states that in amending the discovery schedule, Judge Orenstein "expect[s] that the only new discovery that will take place, beyond matters addressed in previous orders will be the items listed below." (Id.)

On January 9, 2006, Plaintiff submitted a Supplemental Answer to Interrogatory "2", which supplemented Plaintiff's statement of actual damages to also include "the cost of corrective advertising in the range of approximately $2,000,000 to $3,000,000[] and actual damages arising from interference with the expansion of Plaintiff's business estimated to be $200,000 gross sales per year for each of two years." (Pl.'s Objections at 7.) The new claim for prospective corrective advertising costs was based on a verbal estimate purportedly given to Plaintiff by a Mr. Charles MacLeod ("MacLeod") of AMH&E, an advertising firm that had never been identified as a witness in initial or other disclosures.

On January 10, 2006, Defendants moved to strike Plaintiff's Supplemental Answer, arguing that "it was an attempt to circumvent Judge Orenstein's December 5, 2005 and January 5, 2006 orders, renege on the assurances that plaintiff's new counsel gave to the Court in seeking an extension of discovery, and an effort to manufacture new, 'expert-like' evidence to support plaintiff's new damages theories." (Defs.' Mem. at 8.) Plaintiff responded that it was simply amending its discovery responses pursuant to Federal Rule of Civil Procedure ("Rule") 26(e), discussed infra.

Judge Orenstein held a conference on January 17, 2006, and offered Plaintiff a choice: "(1) withdraw the supplemental answer to interrogatories, thereby saving plaintiff from having to pay both its own legal fees and costs and [Defendants'] legal fees and costs for further discovery, including depositions, on, plaintiff's new claims; or (2) persist with the new claims with the understanding that the Court would impose on plaintiff all of the legal fees and costs incurred by [Defendants] for further discovery, including depositions resulting from plaintiff's belated supplementation of its answer to interrogatories." (Id. at 8-9; Pl.'s Mem. in Further Supp. at 1.) Plaintiff's counsel chose the latter option and the parties were instructed to submit a proposed stipulation within the parameters set by the Court. The parties thereafter submitted letters to Judge Orenstein in support of their respective positions on the stipulation.

On January 26, 2006, outside of the discovery cut-off, Plaintiff produced three pages of notes made by Philip Melfi ("Melfi"), the President of Plaintiff, with respect to his January 24, 2006 meeting with AMH&E on corrective advertising. On January 27, 2006, Melfi was deposed, for the second time, on the issue of damages.

II. The January 30, 2006 and February 6, 2006 Orders

On January 30, 2006, the parties appeared before Judge Orenstein. Judge Orenstein thereafter issued three orders, one dated January 30, 1996 and two dated February 6, 2006, all of which are the subject of the instant appeal. Specifically, Judge Orenstein ruled that

1. Plaintiff has identified Mr. Philip Melfi and Mr. Charles MacLeod of AMH&E as the only fact witnesses plaintiff will use in this action with respect to the assertion in the Supplemental Answer of alleged corrective advertising costs and expenses and the assertion in the Supplemental Answer of alleged interference with the expansion of plaintiff's business. . . .

2. Plaintiff must produce Mr. Melfi for an additional deposition . . . on or before January 27, 2006. . . . Plaintiff will pay all reasonable fees and costs incurred by defendants in connection with that additional deposition, including legal fees for the time of defendants' counsel to prepare for and take that deposition and court reporter and transcript fees and expenses. . . . Any dispute over the amount of such fees and costs shall be resolved by the Court by letter ...

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