Mike's Novelties, Inc. v. PIV Enterprises, Inc. ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MIKE’S NOVELTIES, INC., ) Case No.: 1:23-cv-1309 JLT SAB ) 12 Plaintiff, ) ORDER ADOPTING IN FULL THE FINDINGS ) AND RECOMMENDATIONS GRANTING 13 v. ) PLAINTIFF’S MOTOIN TO DISMISS ) DEFENDANT’S COUNTERCLAIMS WITH 14 PIV ENTERPRISES, INC., ) LEAVE TO AMEND ) 15 Defendant. ) (Docs. 8 and 16) ) 16 17 Mike’s Novelties, Inc. previously distributed products of PIV Enterprises, which develops, 18 manufactures, and sells detox, cleansing, and lifestyle products. PIV alleges that Mike’s Novelties is 19 now manufacturing, distributing and/or selling a counterfeit product bearing its trademarks. (See 20 generally Doc. 7.) Mike’s Novelties moved to dismiss PIV’s first and second amended counterclaims 21 for federal trademark infringement and false designation of origin. (Doc. 8.) 22 The assigned magistrate judge found the allegations were insufficient to support PIV’s 23 counterclaims for trademark infringement and false designation of origin and recommended the motion 24 to dismiss be granted. (See Doc. 16 at 5-17.) The magistrate judge found “PIV has not acted in bad 25 faith and it would not prejudice [Mike’s Novelties] or be futile to grant another opportunity to cure 26 deficiencies in PIV’s first amended countercomplaint.” (Id. at 18.) Therefore, the magistrate judge 27 recommended that “PIV be granted leave to amend its first amended countercomplaint to address the 28 deficiencies in his first and second counterclaims.” (Id.) 1 The Court served the Findings and Recommendations on the parties and notified them that an 2 || objections were due within 14 days. (Doc. 16 at 19.) The Court advised the parties the “failure to fil 3 || objections within the specified time may result in the waiver of rights on appeal.” (/d., citing Wilker: 4 || v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Neither party filed objections, and the time to do 5 || has passed. 6 According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this case. 7 || Having carefully reviewed the matter, the Court concludes the Findings and Recommendations are 8 || supported by the record and proper analysis. Thus, the Court ORDERS: 9 1. The Findings and Recommendations dated (Doc. 16) are ADOPTED in full. 10 2. Plaintiff's motion to dismiss (Doc. 8) is GRANTED. 11 3. Defendant’s first and second counterclaims are DISMISSED with leave to amend. 12 4. Defendant SHALL file any second amended answer and counterclaims within 21 day: 13 of the date of service of this order. Failure to comply with this order will result in the 14 first amended and answer counterclaims (Doc. 7) standing as the operative answer, wi 15 the identified counterclaims dismissed. 16 17 ||IT IS SO ORDERED. 18 || Dated: _March 12, 2024 ( Li pA L. warm 19 TED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28