Case 3:16-cv-01944-SI Document 260 Filed 05/14/18 Page 1 of 5
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`GOPRO, INC.,
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`Plaintiff,
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`v.
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`360HEROS, INC.,
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`Defendant.
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`Case No. 16-cv-01944-SI
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`ORDER RE: RECENTLY FILED
`MOTIONS AND ADMINISTRATIVE
`ISSUES
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`Re: Dkt. Nos. 206, 218, 223, 227, 232, 235,
`239, 241, 249
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`Now before the Court are various motions filed by the parties. The Court will address each
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`of the motions, as well as various pending administrative issues.1
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`1. Defendant’s Motion for Partial Summary Judgment [Dkt. No. 218]
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`On March 23, 2018, defendant filed a motion for partial summary judgment alleging
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`plaintiff cannot prove: (1) copyright infringement damages; (2) trademark infringement or
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`damages relating to the ABYSS mark; and (3) damages relating to infringement of the HERO
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`mark. Dkt. No. 218.
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`Summary judgment is proper if the pleadings, the discovery and disclosure materials on
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`file, and any affidavits show that there is no genuine dispute as to any material fact and that the
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`movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The moving party
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`bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex
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`Corp. v. Catreet, 477 U.S. 317, 323 (1986). The moving party, however, has no burden to
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`disprove matters on which the non-moving party will have the burden of proof at trial. The
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`1 Plaintiff’s administrative motion at Dkt. No. 206 is DENIED as moot.
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`Northern District of California
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`United States District Court
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`Case 3:16-cv-01944-SI Document 260 Filed 05/14/18 Page 2 of 5
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`moving party need only demonstrate to the Court that there is an absence of evidence to support
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`the non-moving party’s case. Id. at 325.
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`Once the moving party has met its burden, the burden shifts to the non-moving party to
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`“designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324 (quoting then
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`Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must “do more than simply
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`show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.,
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`Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a scintilla of
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`evidence…will be insufficient; there must be evidence on which the jury could reasonably find for
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`the [non-moving] party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
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`In deciding a summary judgment motion, the Court must view the evidence in the light
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`most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.
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`“Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences
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`from the facts are jury functions, not those of a judge…ruling on a motion for summary judge…”
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`Id. However, conclusory, speculative testimony in affidavits and moving papers is insufficient to
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`raise genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., Inc. v. Gen.
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`Tel. & Elec. Corp., 594 F.2d 730, 738 (9th Cir. 1979). The evidence the parties present must be
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`admissible. Fed. R. Civ. P. 56(c).
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`In support of its argument that plaintiff has no available remedy for copyright
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`infringement, defendant argues, inter alia, that plaintiff has no evidence of lost profits or value of
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`use to the infringer, and cannot establish damages based on defendant’s profits. Dkt. No. 218.
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`Plaintiff asserts a damages theory based on defendant's indirect profits measured by avoided costs
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`-- in essence, that defendant 360Heros avoided costs, thereby increasing its profits, by using
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`GoPro's marketing images instead of creating its own. The Court finds that there are material
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`disputes of fact concerning plaintiff’s claimed damages. Accordingly, defendant’s partial motion
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`for summary judgment as to copyright damages is DENIED.
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`As to defendant’s remaining claims concerning trademark infringement and damages
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`associated with the ABYSS and HERO marks, the Court has reviewed the record and arguments
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`Northern District of California
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`United States District Court
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`Case 3:16-cv-01944-SI Document 260 Filed 05/14/18 Page 3 of 5
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`presented at the hearing and finds, at a minimum, that plaintiff raises material issues of fact as to
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`the allegations at hand. Because defendant has not shown there are no genuine issues of material
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`fact regarding the ABYSS and HERO marks, the Court DENIES defendant’s motion. 2
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`2. Plaintiff’s Motion for Leave to Serve Reply Expert Report [Dkt. No. 227]
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`On March 30, 2018, plaintiff filed a motion for leave to serve a reply expert report
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`responding to defendant’s rebuttal report. Dkt. No. 227. Plaintiff argues defendant’s rebuttal
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`report introduces evidence outside the scope of plaintiff’s expert report, was filed on the rebuttal
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`deadline (denying plaintiff an opportunity to respond), and fails to address or respond to plaintiff’s
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`report. (The Court ordered the parties to serve opening expert reports on February 8 and rebuttal
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`reports on March 8; there was no provision for reply expert reports). Defendant opposes the
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`motion and contends that its report rebuts plaintiff’s likelihood of confusion contentions.
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`Defendant also argues that allowing a reply would prejudice defendant by modifying the
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`remaining case schedule.
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`The purpose of rebuttal is to “introduce facts and witnesses appropriate to deny, explain or
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`discredit the facts and witnesses adduced by the opponent.” Meyer Mfg. Co. v. Telebrands Corp.,
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`No. 2:11-CV-03153-TLN, 2013 WL 3242209, at *3 (E.D. Cal. June 20, 2013). Having
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`considered the arguments presented and the recently filed joint stipulation continuing the trial date,
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`plaintiff’s motion is GRANTED. Plaintiff is granted leave to serve the reply expert report of Dr.
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`Carol Scott by May 31, 2018. Defendant may depose Dr. Scott within three weeks (3) of
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`receiving the reply expert report. The reply and deposition are limited to the sole purpose of
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`replying to defendant’s rebuttal report. In addition, defendant may also submit a further rebuttal
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` On March 27, 2018, plaintiff lodged an unauthorized post-hearing letter (Dkt. No.
`216) in violation of Civil Local Rule 7-3(e), which provides that “once a reply is filed, no
`additional memoranda, papers or letters may be filed without prior Court approval.” That
`unauthorized submission will not be considered by the Court. Defendant’s motion to strike (Dkt.
`No. 223) is GRANTED.
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`Case 3:16-cv-01944-SI Document 260 Filed 05/14/18 Page 4 of 5
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`report. The deadline for defendant’s rebuttal report is June 21, 2018.
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`3. Defendant’s Motion for Leave to File a Motion for Reconsideration of Sanctions Order
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`[Dkt. No. 239]
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`On April 11, 2018, defendant filed a motion for leave to file a motion for reconsideration
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`of the Court’s March 30, 2018 Order granting, in part, plaintiff’s motion for sanctions. The Court
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`has reviewed defendant 360Heros’ Request for Leave to File a Motion for Reconsideration.
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`Defendant has failed to demonstrate that a motion for reconsideration is appropriate under Civil
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`Local Rule 7-9. Accordingly, defendant’s motion is DENIED.
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`The Court notes, however, that motion for sanctions was decided on the written record
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`presented to the Court to date, and the adverse-inference instruction is premised on that record. At
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`trial, either party is free to present other or further evidence on this issue.
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`4. Administrative Motions to Seal [Dkt. Nos. 232, 235, 241, 249]
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`The parties have four pending motions to seal. One of the motions does not fully comply
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`with the local rules. That motion is DENIED. Dkt. No. 235. Another motion to seal is opposed.
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`Dkt. No. 249. That motion is DENIED. The remaining two motions to seal, Dkt. Nos. 232 and
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`241, are GRANTED.
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`Throughout the course of this litigation, the parties have filed upwards of twenty (20)
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`motions to seal. This has resulted in a convoluted, disorganized record and raises concerns about
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`overlap in the under seal documents. The parties are advised that should the parties seek to file
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`future motions to seal, they are to file a jointly prepared chart that clearly and succinctly
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`summarizes the documents sought to be sealed and the positions of the party as to each.
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`Specifically, each row of the chart should list the following information: (1) the document
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`sought to be sealed, (2) the docket number of the redacted version of the document, (3) the docket
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`number of the unredacted version of the document, (4) a pin citation portion of the document
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`Northern District of California
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`United States District Court
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`Case 3:16-cv-01944-SI Document 260 Filed 05/14/18 Page 5 of 5
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`sought to be sealed, (5) the party seeking sealing, (6) asserted grounds for sealing, (7) the party
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`opposing sealing, and (8) asserted grounds for opposition. Each of the aforementioned categories
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`should be a separate column of the chart. If the parties seek to seal multiple portions of the same
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`document, each portion should be listed as a separate row in the chart.
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`IT IS SO ORDERED.
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`Dated: May 11, 2018
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`______________________________________
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`SUSAN ILLSTON
`United States District Judge
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`Northern District of California
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`United States District Court
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