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 DENYING 13 v. ) PLAINTIFF’S MOTION TO DISMISS ) DEFENDANT’S COUNTERCLAIMS 14 PIV ENTERPRISES, INC., ) ) (Docs. 20 and 23) 15 Defendant. ) ) 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. 19.) Mike’s Novelties moved to dismiss PIV’s first and second amended counterclaims 21 for federal trademark infringement and false designation of origin in addition to PIV’s first affirmative 22 defense for incontestability. (Doc. 20.) Counsel for Mike’s Novelties filed a declaration with the 23 motion confirming Mike’s Novelties did not meet and confer with PIV on any matters raised in the 24 motion to dismiss. (Id. at 10.) Accordingly, the assigned magistrate judge recommended that the 25 motion be denied without prejudice for failure to meet and confer as required by this Court’s Standing 26 Order. (Doc. 23 (citing Doc. 4-1 at 2).) 27 The Court served the Findings and Recommendations on the parties and notified them that any 28 objections were due within 14 days. (Doc. 23 at 6.) The Court advised the parties the “failure to file 1 || objections within the specified time may result in the waiver of rights on appeal.” (/d., citing Wilkers 2 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Neither party filed objections, and the time to do 3 || has passed. 4 According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this case. 5 || Having carefully reviewed the matter, the Court concludes the Findings and Recommendations are 6 || supported by the record and proper analysis. Thus, the Court ORDERS: 7 1. The Findings and Recommendations dated (Doc. 23) are ADOPTED in full. 8 2. Plaintiff's motion to dismiss (Doc. 20) is DENIED. 9 3. Plaintiff SHALL file a response to the second amended answer and counterclaims 10 within 14 days of the date of service of this order. 11 12 ||IT IS SO ORDERED. 13 || Dated: _May 14, 2024 Charis [Tourn 14 TED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28