Morton & Bassett, Llc-V-Organic Spices Inc

Northern District of California, cand-4:2015-cv-01849

ORDER REGARDING BIFURCATION OF TRIAL AND DIRECTING PARTIES TO FILE A STIPULATION; ORDER SETTING CASE MANAGEMENT CONFERENCE. Further Case Management Conference set for 8/8/2017 10:00 AM. Signed by Judge Haywood S. Gilliam, Jr. on 7/17/2017.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MORTON & BASSETT, LLC, Case No. 15-cv-01849-HSG 8 Plaintiff, ORDER REGARDING BIFURCATION OF TRIAL AND DIRECTING PARTIES 9 v. TO FILE A STIPULATION; ORDER SETTING CASE MANAGEMENT 10 ORGANIC SPICES, INC., CONFERENCE 11 Defendant. 12 This trade dress infringement action is set for trial to begin on September 25, 2017. Dkt. Northern District of California United States District Court 13 No. 129. "For convenience, to avoid prejudice, or to expedite and economize, the court may order 14 a separate trial of one or more separate issues. . . ." Fed. R. Civ. P. 42(b). There appear to have 15 been four versions of the spice bottle packaging of Defendant Organic Spices, Inc. ("Spicely"). 16 See, e.g., Dkt. No. 102 at 1–2 (discussing four versions). The most substantial change in spice 17 bottle packaging appears to have occurred between Versions 1 and 2, which feature horizontally 18 oriented packaging, and Versions 3 and 4, which feature vertically oriented packaging. See Dkt. 19 No. 102-3 at 11 (photo of Versions 1 and 2); Dkt. No. 102-2 at 3–5 (photos of Version 3); Dkt. 20 No. 102 at 3 (stating that Version 4 "add[ed] green color to the vertical label design from Version 21 3"). The Court believes that trial will be simplified and expedited by proceeding first with the 22 liability phase as to Versions 1 and 2 only, which analytically seem to be Spicely's most important 23 spice bottle packaging in this suit. Proceeding first with these two versions will also obviate the 24 need to litigate in this trial the complicated questions of how to treat Versions 3 and 4 and whether 25 to include the extensive settlement negotiations between the parties relating to the changes 26 reflected in those versions. 27 As stated at the pretrial conference, the parties still have not adequately framed this case 28 for trial. See, e.g., Dkt. No. 138 at 4:6–7 ("You saw that I issued an order moving the trial date, 1 and that's because in my review of the papers, it just became abundantly clear the case in not trial 2 ready."). Among other things, the Court pointed out the considerable complications and risk of 3 jury confusion that could result from trying multiple visually distinct versions at once: 4 THE COURT: . . . [L]et me ask this, and this I think. . . just goes to the complicated nature of the case right now: Could the jury find 5 infringement as to one version but not another? MR. AREVIAN: I think they could. 6 MR. ANDRIS: Sure. THE COURT: So how is that going to be presented? As a special 7 interrogatory in the verdict form? . . . How is that going to be teed up for [the jury]? 8 MR. ANDRIS: It's a good question. . . . [. . .] 9 MR. AREVIAN: Perhaps we could confer and -- THE COURT: I think you should, 'cause that really [is] the heart of 10 the. . . matter, right? . . . I think that is a question that the parties should consider. . . is it a jar-by-jar finding that the jury's being 11 asked to make? And if so, how do we structure that? 12 Id. at 46:15–46:11. In the month since the pretrial conference, the parties have filed nothing Northern District of California United States District Court 13 indicating any sort of progress in addressing this issue or the many other concerns raised by the 14 Court at the pretrial conference. 15 Accordingly, the Court intends to bifurcate the liability phase of the trial, proceeding first 16 only as to Versions 1 and 2 of Spicely's spice bottle packaging. Any party that opposes this 17 proposition may file a statement not exceeding five pages by July 20, 2017 setting out its position 18 for the record. 19 In addition, the Court finds that the administration of trial will be improved by clearly 20 defining each version of Spicely's spice bottle packaging. The Court orders the parties to meet 21 and confer and to file a stipulation attaching four exhibits: Exhibit A shall contain one or more 22 representative color photographs of Version 1, Exhibit B shall contain one or more representative 23 color photographs of Version 2, Exhibit C shall contain one or more representative color 24 photographs of Version 3, and Exhibit D shall contain one or more representative color 25 photographs of Version 4. 26 // 27 // 28 // 2 1 The parties are ORDERED to appear at a further case management conference on August 2 8, 2017 at 10:00 a.m. to discuss the steps necessary to implement this order, including the setting 3 of shorter trial time limits and the setting of deadlines for updated pretrial filings. 4 IT IS SO ORDERED. 5 Dated: 7/17/2017 6 ______________________________________ HAYWOOD S. GILLIAM, JR. 7 United States District Judge 8 9 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3