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. 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 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 19 Defendant. 20 21 22 23 24 25 26 27 28 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 -1- Case 2:24-cv-08093-FLA-E Document 46 Filed 05/09/25 Page 3 of 6 Page ID #:675 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 -2- Case 2:24-cv-08093-FLA-E Document 46 Filed 05/09/25 Page 4 of 6 Page ID #:676 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 #:677 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 -4- Case 2:24-cv-08093-FLA-E Document 46 Filed 05/09/25 Page 6 of 6 Page ID #:678 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 22 By: /s/Michael D. Roth 23 LIVIA KISER 24 MICHAEL D. ROTH LENNETTE W. LEE 25 SAMUEL C. CORTINA 26 Attorneys for Defendant NIKE, INC. 27 28 SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL -5-