Lillian Jurdi v. Nike, Inc. — Entry #46

Case 2:24-cv-08093-FLA-E        Document 46 Filed 05/09/25   Page 1 of 6 Page ID
                                        #:673


1    LIVIA M. KISER (SBN 285411)
     lkiser@kslaw.com
2    MICHAEL D. ROTH (SBN 217464)
     mroth@kslaw.com
3    LENNETTE W. LEE (SBN 263023)
      llee@kslaw.com
4    SAMUEL C. CORTINA (SBN 310778)
     scortina@kslaw.com
5    KING & SPALDING LLP
     633 West Fifth Street, Suite 1600
6    Los Angeles, CA 90071
     Telephone: (213) 443-4355
7    Facsimile: (213) 443-4310
8    Attorneys for Defendant
     NIKE, INC.
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                           UNITED STATES DISTRICT COURT
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                         CENTRAL DISTRICT OF CALIFORNIA
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13     LILLIAN JURDI, an individual              Case No. 2:24-cv-08093-FLA(Ex)
14     and on behalf of all others
       similarly situated,                       DEFENDANT NIKE, INC.’S
15                                               SUPPLEMENTAL MEMORANDUM
                    Plaintiff,                   IN OPPOSITION TO PLAINTIFF’S
16                                               MOTION TO COMPEL
             v.
17
                                                 Date: May 23, 2025
       NIKE, INC., an Oregon company;            Time: 9:30 am
18     DOES 1 through 25, inclusive,             Courtroom: 750
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                    Defendant.
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           SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL


 Case 2:24-cv-08093-FLA-E      Document 46 Filed 05/09/25         Page 2 of 6 Page ID
                                      #:674


1          Pursuant to Local Rule 37-2.3, Defendant Nike, Inc. (“Defendant”) submits this
2    supplemental memorandum in opposition to Plaintiff’s Motion to Compel Further
3    Reponses to Special Interrogatories and Requests for Production, Set One. Dkt. 40.
4    I.    The Court Should Determine Whether It Has Subject Matter
5          Jurisdiction Before Adjudicating Plaintiff’s Motion to Compel
6          The Court should deny Plaintiff’s motion to compel discovery, as the threshold
7    question of whether subject matter jurisdiction exists has not been decided.
8          As Defendant argued in its pending Motion to Dismiss—and has been asserting
9    in Court since November 2024 1—this Court lacks subject matter jurisdiction because
10   Plaintiff has not alleged, and cannot allege, any jurisdictionally required injury in fact.
11   Dkt. 20, 32 & 39. Courts have an independent duty to consider subject matter
12   jurisdiction at every stage of the litigation, “even in the absence of a challenge from a
13   party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); see also Augustine v.
14   United States, 704 F.2d 1074, 1077 (9th Cir. 1983) (there is a “continuing duty to
15   dismiss an action whenever it appears that the court lacks jurisdiction.”).
16         Because the Court’s subject matter jurisdiction is still undecided, the Court
17   should refrain from adjudicating the Motion to Compel: “Without jurisdiction the
18   court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and
19   when it ceases to exist, the only function remaining to the court is that of announcing
20   the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S.
21   83, 94 (1998) (quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868)).
22   Courts routinely deny motions to compel or stay discovery while they assess subject
23   matter jurisdiction. See Dkt. 40 at 19 (citing cases where courts denied motions to
24   compel because subject matter jurisdiction was unresolved).
25         To be clear, Plaintiff’s Motion does not seek to compel any jurisdictional
26
     1
       Defendant filed its first Motion to Dismiss challenging subject matter jurisdiction
27   on November 15, 2024. Dkt. 11. Rather than defend her pleadings, Plaintiff filed an
     Amended Complaint, thus requiring Defendant to file a subsequent Motion to Dismiss
28   the Amended Complaint on the same basis. Dkt. 20.
           SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
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 Case 2:24-cv-08093-FLA-E      Document 46 Filed 05/09/25        Page 3 of 6 Page ID
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 1   discovery that might be appropriate at this juncture. Apparent from the requests
 2   themselves, Dkt. 40-1, and also confirmed by her counsel, see Dkt. 40-18 at 3,
 3   Plaintiff’s requests seek only merits-based discovery. And without subject matter
 4   jurisdiction, the Court should not decide this merits-based discovery dispute.
 5         The Court should thus deny Plaintiff’s Motion to Compel as premature.
 6   Resolution of discovery disputes in this matter would be appropriate only if and after
 7   the Court determines it has subject matter jurisdiction for this case (it does not).
 8   II.   No Sanctions Should Be Entered Against Defendant
 9         Plaintiff’s repeated (but passing) demand for sanctions—made without
10   identification of any sanctionable conduct by Defendant, or providing the required
11   notice, evidence, or legal support justifying sanctions—also should be denied.
12         A.     Sanctions Against Defendant are not Justified Under the FRCP
13         Federal Rule of Civil Procedure 37(a)(5) only permits imposing sanctions
14   against the non-moving party if (a) the movant made a good faith attempt to obtain
15   the disclosure or discovery without court action, and (b) the non-moving party’s
16   position was not substantially justified. Even then, sanctions should be denied if
17   “other circumstances make an award of expenses unjust.” Id. Here, Plaintiff’s request
18   for sanctions fails under all prongs.
19         First, Plaintiff did not make a good faith attempt to obtain discovery without
20   court action. She did the opposite. Specifically, for Issues 1 and 2, Plaintiff asks for
21   an order compelling production of responsive documents by a date that Defendant
22   already agreed to. There is thus nothing to compel. Issue 3 is a manufactured
23   discovery dispute: Defendant agreed to produce responsive documents reflecting
24   Plaintiff’s consent to the conduct about which she now complains. Plaintiff is simply
25   unwilling to provide basic information about herself to facilitate Defendant’s search
26   for the very records she requests. For Issue 4, Plaintiff seeks to compel responses to
27   interrogatories with no legal justification, several of which she agreed were
28   impermissible. For Issue 5, Plaintiff asks for an order compelling responses without

           SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
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 Case 2:24-cv-08093-FLA-E     Document 46 Filed 05/09/25       Page 4 of 6 Page ID
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 1   general objections, but that too would provide Plaintiff with no relief. Defendant is
 2   not withholding documents or information based on general objections, and Plaintiff
 3   has not identified any general objections that require court intervention. Rather than
 4   avoid court action, as the Federal Rules demand, Plaintiff has actively sought it out.
 5         Second, Defendant’s responses to Plaintiff’s unnecessary motion are
 6   substantially justified. Defendant agreed to produce documents responsive to every
 7   Request for Production (except for RFP No. 4, which Plaintiff has since abandoned)
 8   and responded to four of Plaintiff’s nine interrogatories. Defendant properly objected
 9   to the other five interrogatories, as evidenced by the meet and confer: Plaintiff
10   abandoned one of them (Interrogatory No. 6); the parties agreed to Defendant’s
11   compromise proposal for one of them (Interrogatory No. 1); Plaintiff proposed
12   amending another one but cut the meet and confer process off before agreement
13   (Interrogatory No. 7); and Plaintiff did not provide any legal or evidentiary authority
14   supporting her two remaining interrogatories (Interrogatory Nos. 4 and 5).
15         Defendant was also substantially justified in its proposals for when it will
16   substantially complete its document production. During the parties’ meet and confer
17   efforts, Defendant agreed to substantially complete its production of documents
18   responsive to RFP Nos. 1, 6, 9, and 10 by May 15 and RFP Nos. 2, 5, 8, and 11 by
19   June 15. 2 That is more than four months before the October 31, 2025 deadline to hear
20   a motion for class certification, and more than eleven months before the May 22, 2026
21   fact discovery cut-off, and is unquestionably a “reasonable time” for production under
22   Rule 34. See Patagonia, Inc. v. Anheuser Busch, LLC, 2020 WL 6260018, at *2 (C.D.
23   Cal. Feb. 19, 2020) (ordering a date certain for production of documents more than
24   eight months after the requests were served in consideration of the discovery cut-off,
25   upcoming motions and depositions, and expert discovery). Plaintiff, moreover, has
26   never identified any prejudice from the proposed schedule—there is none.
27
     2
      Defendant inadvertently omitted a reference to RFP No. 3 in its meet and confer
28   correspondence but has since confirmed that it should have been included in the June
     15 deadline.
           SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
                                              -3-


 Case 2:24-cv-08093-FLA-E     Document 46 Filed 05/09/25        Page 5 of 6 Page ID
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 1         Finally, other circumstances make an award of expenses unjust. This case is
 2   not at issue, and Defendant has challenged the Court’s subject matter jurisdiction and
 3   the applicability of California’s trap and trace statute to Defendant’s entirely out of
 4   state conduct. Dkt. 20, 32. While Defendant has participated in discovery in good
 5   faith during the pendency of its motion to dismiss, Plaintiff has pursued a course of
 6   conduct with the sole purpose of bringing a motion to compel.              Under these
 7   circumstances, an award of any expenses to Plaintiff would be unjust and reward bad
 8   faith conduct.
 9         B.     Plaintiff Did Not Provide Support for Her Sanctions Request
10         Furthermore, neither Plaintiff’s Motion nor her Joint Stipulation include any
11   legal or evidentiary support for a request for sanctions. Her passing request for
12   sanctions fails to establish her entitlement to any monetary sanctions. See Fed. R.
13   Civ. P. 37(a)(5) (elements necessary for imposing sanctions); Sundby v. Marquee
14   Funding Group, Inc., 2020 WL 5709445, at *13 (S.D. Cal., 2020) (declining to
15   impose monetary sanctions because “the Investor Defendants fail to support this
16   request with adequate information to order such sanctions” where “[n]owhere in the
17   Investor Defendants’ motion or in the attachments are these fees and costs outlined.”).
18   If Plaintiff makes arguments in support of sanctions for the first time in a
19   Supplemental Memorandum, the Court should likewise reject those arguments as
20   untimely and violative of Defendant’s due process rights. See Fed. R. Civ. P. 37(a)(5)
21   (“opportunity to be heard” required before imposing sanctions). 3
22         Plaintiff is entitled to no relief, and certainly not an award of attorneys’ fees,
23   for the ginned-up disputes prompting her motion. Sanctions against Defendant are
24   not appropriate under these circumstances. See Fed. R. Civ. P. 37(a)(5).
25
     3
       Plaintiff’s failure to comply with procedural requirements is not an isolated incident.
26   Indeed, Plaintiff’s motion reflects her: (1) failure to include a Notice of Motion, as is
     required by Local Rule 37-2; (2) failure to submit a proposed order; (3) failure to
27   notice the hearing before the correct judge; (4) filing an incorrect exhibit to
     Defendant’s counsel’s declaration; and (5) sending a Local Rule 37-1 meet and confer
28   letter that did not identify the issues and discovery requests with specificity as
     required.
           SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
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 Case 2:24-cv-08093-FLA-E     Document 46 Filed 05/09/25        Page 6 of 6 Page ID
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 1   III.   Plaintiff Should Be Sanctioned for Filing an Unjustified Motion
 2          By contrast, if the Court denies any portion of the Motion, then Plaintiff should
 3   be sanctioned. Fed. R. Civ. P. 37(a)(5)(B); Davis v. Schneider, 2020 WL 9074713,
 4   at *10 (C.D. Cal., 2020) (“where a motion is granted in part and denied in part, as is
 5   the case here, the Court may apportion the reasonable expenses for the motion”).
 6          Plaintiff includes five “issues” in her Motion. None of them have merit or
 7   substantial justification. Four of the “issues” request relief that Defendant already
 8   agreed to before Plaintiff brought her motion, and those issues should not have been
 9   included in a motion to compel. See Fed. R. Civ. P. 37(a)(3) (permitting motion to
10   compel only if a party “fails to answer a question,” “fails to make a designation,”
11   “fails to answer an interrogatory,” or “fails to produce documents”).
12          The only issue that is arguably ripe for the Court is determining whether
13   Plaintiff’s Interrogatory Nos. 4 & 5—seeking years of information about Defendant’s
14   global sales transactions in a case about data allegedly collected from California-
15   based website visitors—are within the permissible scope of discovery. As set forth
16   in Defendant’s position on Issue 4, they are not. Dkt. 40 at 37-38.
17          Defendant respectfully requests that the Court deny Plaintiff’s Motion in its
18   entirety and set a further hearing to determine the appropriate monetary sanctions
19   against Plaintiff for bringing an unwarranted motion and wasting the Court’s and
20   Defendant’s resources. See Fed. R. Civ. P. 37(a)(5)(B).
21    Dated: May 9, 2025              Respectfully submitted,
                                         KING & SPALDING LLP
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                                         By:   /s/Michael D. Roth
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                                               LIVIA KISER
24                                             MICHAEL D. ROTH
                                               LENNETTE W. LEE
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                                               SAMUEL C. CORTINA
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                                               Attorneys for Defendant NIKE, INC.
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            SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
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