GS Holistic, LLC v. Ashes Plus Nine ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GS HOLISTIC, LLC, Case No. 22-cv-07101-YGR (LJC) 8 Plaintiff, ORDER TO SHOW CAUSE WHY 9 v. MOTION FOR DEFAULT JUDGMENT SHOULD NOT BE DENIED 10 ASHES PLUS NINE, et al., Re: ECF No. 57 Defendants. 11 12 13 The Court has referred Plaintiff GS Holistic, LLC’s (GS Holistic) amended Motion for 14 Default Judgment (ECF No. 57) to the undersigned magistrate judge for a report and 15 recommendation. The undersigned has identified potential deficiencies in the service of process 16 completed on Defendants Ashes Plus Nine d/b/a Smoke Shop Ashes (Ashes Plus Nine) and 17 Gaizan N Alreyashi, in the merits of GS Holistic’s substantive claims and the sufficiency of the 18 Complaint, and in the relief sought by GS Holistic. For the reasons discussed below, GS Holistic 19 is ORDERED TO SHOW CAUSE why the amended Motion for Default Judgment should not be 20 denied, by filing a supplemental brief and accompanying evidence addressing the issues noted in 21 this Order no later than May 29, 2024. After GS Holistic files its response, the undersigned will 22 issue a report and recommendation regarding the disposition of GS Holistic’s amended Motion for 23 Default Judgment. 24 I. BACKGROUND 25 The undersigned previously summarized the events giving rise to GS Holistic’s claims in 26 her Order for Reassignment to a District Judge and Report and Recommendation Re: Motion for 27 Default Judgment (hereinafter, First Report and Recommendation), dated August 25, 2023, and 1 incorporates that background by reference here. See ECF No. 45 at 2.1 The First Report and 2 Recommendation recommended that GS Holistic’s original Motion for Default Judgment (ECF 3 No. 32) be denied on several grounds: (1) The record showed several deficiencies as to the service 4 of process completed on both Defendants; (2) GS Holistic failed to demonstrate that Eitel factors 5 two and three, which concern the merits of its substantive claims and the sufficiency of the 6 Complaint, supported entry of default judgment against Defendants; and (3) GS Holistic’s requests 7 for statutory damages, costs, a permanent injunction, and other equitable relief were inadequately 8 supported by the evidence. Id. at 4–12. 9 The case was subsequently reassigned to Judge Yvonne Gonzalez Rogers. ECF No. 46. 10 GS Holistic filed a response to the First Report and Recommendation on September 8, 2023. ECF 11 No. 49. It requested, if the Court was inclined to deny the original Motion for Default Judgment, 12 that the denial be without prejudice and that GS Holistic be allowed to file an amended motion 13 curing the deficiencies addressed in the First Report and Recommendation. Id. at 2. On 14 September 21, 2023, the Court adopted the First Report and Recommendation, denied the First 15 Motion for Default Judgment without prejudice, and granted GS Holistic’s request to file an 16 amended motion for default judgment. ECF No. 50. 17 On November 3, 2023, GS Holistic filed an Amended Proof of Service as to Defendant 18 Ashes Plus Nine. ECF No. 52. The Amended Proof of Service includes a Declaration of 19 Reasonable Diligence from the process server, dated February 14, 2023 (the date service was 20 originally completed on Ashes Plus Nine), which was not included with the first Proof of Service. 21 Id. at 4. GS Holistic filed a Motion for Entry of Default as to Ashes Plus Nine on December 8, 22 2023, and the Clerk entered default against Ashes Plus Nine on December 11, 2023. ECF Nos. 23 54, 55. GS Holistic filed its amended Motion for Default Judgment on December 15, 2023, which 24 was referred to the undersigned on February 16, 2024. ECF Nos. 57, 63. 25 II. DISCUSSION 26 Motions for default judgment generally fall within the discretion of the district court, as 27 1 guided by the factors that the Ninth Circuit identified in Eitel v. McCool, 782 F.2d 1470, 1471–72 2 (9th Cir. 1986). The undersigned will address those factors and other relevant considerations in 3 more detail in a report and recommendation following GS Holistic’s response. This Order to 4 Show Cause turns specifically on the deficiencies identified by the undersigned in the First Report 5 and Recommendation with respect to: (1) the service of process completed on both Defendants; 6 (2) Eitel factors two and three; and (3) GS Holistic’s request for statutory damages, costs, a 7 permanent injunction, and other equitable relief. 8 A. Service of Process 9 The First Report and Recommendation found that service of process as to both Defendants 10 was deficient in part because the address where service was completed is different than the address 11 listed for Ashes Plus Nine and Defendant Gaizan N. Alreyashi with the California Secretary of 12 State. ECF No. 45 at 5. The Proofs of Service listed their address as “2317 Stevens Creek Blvd, 13 Unit 10, San Jose, CA 95128,” while the California Secretary of State’s website lists their address 14 as “2319 Stevens Creek Blvd, San Jose, CA 95128.” Id. In support of its amended Motion for 15 Default Judgment, GS Holistic has attached screenshots from Google Maps showing Ashes Plus 16 Nine’s business address as 2317 Stevens Creek Blvd, Unit 10, while 2319 Stevens Creek Blvd is 17 shown as belonging to “Xtreme Wheels N Deals,” a tire repair shop. ECF No. 57-2. The 18 screenshots show that the two addresses are associated with a shopping center where several 19 businesses are located. See id. GS Holistic also points to the process server’s Declaration of 20 Reasonable Diligence in Mr. Alreyashi’s Proof of Service. ECF No. 18. The process server states 21 that he spoke to an individual at 2317 Stevens Creek Blvd, Unit 10, who told him that they were 22 Mr. Alreyashi’s employee, and that Mr. Alreyashi resided there but was not available at that time. 23 Id. at 4. 24 As an initial matter, GS Holistic has not properly authenticated the Google Maps 25 screenshots pursuant to Federal Rule of Evidence 901.2 Authentication requires “evidence 26 2 GS Holistic is not exempt from compliance with admissibility standards (as set forth in the 27 Federal Rules of Evidence) as to evidentiary exhibits it wishes the Court to consider in support of 1 sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R. 2 Evid. 901(a). “Information from the Internet does not necessarily bear an indicia of reliability and 3 therefore must be properly authenticated by affidavit.” In re Easysaver Rewards Litig., 737 4 F.Supp.2d 1159, 1168 (S.D. Cal. 2010); In re Homestore.com, Inc. Securities Litig., 347 5 F.Supp.2d 769, 782–83 (C.D. Cal. 2004) (holding that “[p]rintouts from a web site [sic] do not 6 bear the indicia of reliability demanded for other self-authenticating documents under Fed. R. 7 Evid. 902[ ]” and thus were improperly authenticated when unsupported by a declaration by 8 someone with personal knowledge, even when the printouts bore a “URL address and date 9 stamp.”). Here, there is no declaration indicating who took the screenshots, “when or how they 10 did so, or on what basis they can be sure that the printouts accurately reflect the contents” of the 11 Google Maps website. X17, Inc. v. Lavandeira, No. CV06-7608-VBF(JCX), 2007 WL 790061, at 12 *2 (C.D. Cal. Mar. 8, 2007). 13 Nor did GS Holistic request that the Court take judicial notice of Google Maps as a 14 “source[] whose accuracy cannot reasonably be questioned” pursuant to Federal Rule of Evidence 15 201(b). Even if GS Holistic had made such a request, it is unclear whether the Court can take 16 judicial notice of the information available on Google Maps for the purpose that GS Holistic 17 presents it here. Courts in the Ninth Circuit have taken judicial notice of Google Maps and its 18 satellite images “as to the distance of between [] two points.” Brockman v. Cnty. of San Diego, 19 No. 22-CV-0512-GPC-BLM, 2022 WL 15524598, at *6 (S.D. Cal. Oct. 27, 2022) (citing 20 McCormack v. Hiedeman, 694 F.3d 1004, 1008, n.1 (9th Cir. 2012) (taking judicial notice of a 21 Google Maps image showing that the distance from Bannock County, Idaho to Salt Lake City, 22 Utah is about 138 miles)); see also United States v. Perea-Rey, 680 F.3d 1179, 1182 (9th Cir. 23 2012) (taking judicial notice of a Google Maps image showing “the general location of the home” 24 in question). This is different, however, from taking judicial notice of information available in 25 26 EDCV181338FMOPLAX, 2018 WL 6252429, at *2 (C.D. Cal. Aug. 20, 2018) (“The court…has a duty to thoroughly review all default judgment applications to ensure that the evidence upon 27 which a plaintiff relies is sufficient”); Eitel, 782 F.2d at 1472 (refusal to enter default judgment 1 Google Maps as to what businesses may be associated with any given address. 2 Notably, GS Holistic has also filed a Statement of Information from the California 3 Secretary of State confirming that the address on file for Ashes Plus Nine is the 2319 Stevens 4 Creek Blvd address. ECF No. 57-1. Even if the Court were to consider the Google Maps 5 screenshots as proper evidence submitted in support of the amended Motion for Default Judgment, 6 there is clearly an inconsistency in the record as to which entity has the correct address for Ashes 7 Plus Nine and Mr. Alreyashi, the California Secretary of State or Google. GS Holistic assumes 8 that Google has the correct address. But it provides no evidence in support of that assumption. 9 GS Holistic points to the process server’s Declaration of Reasonable Diligence in the Proof of 10 Service for Mr. Alreyashi. ECF No. 18 at 4. According to the process server, during his attempts 11 to serve Mr. Alreyashi at 2317 Stevens Creek Blvd, Unit 10, he spoke to an individual who told 12 him that they were an employee and that Mr. Alreyashi resided there but was not available at the 13 time. See id. The Declaration of Reasonable Diligence, however, does not identify the employee 14 by name. So, the fact that an unidentified individual at 2317 Stevens Creek Blvd, Unit 10 claimed 15 to be Mr. Alreyashi’s employee, and claimed that Mr. Alreyashi “resided there,” does not persuade 16 the Court that it should accept this address over the 2319 Stevens Creek Blvd address. See 17 Johnson v. Tirone & Tuan Invs., Inc., No. 21-CV-08370-SVK, 2022 WL 17178303, at *3 (N.D. 18 Cal. Nov. 23, 2022) (denying motion for default judgment where “[b]ased on the record before the 19 [c]ourt, including the proof of service stating that the summons and complaint were left with an 20 unidentified ‘John Doe’ at an unidentified business at an address where it appears several 21 businesses are located, the [c]ourt cannot conclude that service of [the d]efendant was proper.”) 22 Moreover, there are also several deficiencies with the Amended Proof of Service GS 23 Holistic filed as to Ashes Plus Nine. ECF No. 52. GS Holistic claims that the original Proof of 24 Service incorrectly provided that Mr. Alreyashi was personally served as Ashes Plus Nine’s 25 registered agent, when in actuality, he was served via substituted service “on his place of business 26 by leaving Summons and the Complaint to Mohammed Almar who was the person authorized to 27 accept.” ECF No. 57 at 13. Like the other Proofs of Service, the Amended Proof of Service lists 1 Alreyashi was attempted. ECF No. 52 at 1. As explained above, GS Holistic has not provided 2 sufficient evidence to establish this is the correct address for Ashes Plus Nine and Mr. Alreyashi. 3 In addition, the Amended Proof of Service for Ashes Plus Nine says that the process server 4 delivered the documents to Mohammed Almar, “who indicated they were the Person Authorized 5 to Accept with identity confirmed by subject stating their name.” Id. However, this is 6 inconsistent with the process server’s accompanying Declaration of Reasonable Diligence, dated 7 February 14, 2023 (the date Ashes Plus Nine was originally served), which notably, is almost nine 8 months before the Amended Proof of Service was filed. Id. at 4. The Declaration of Reasonable 9 Diligence indicates that process server “spoke with an individual who refused to give their name 10 who indicated they were the employee and they stated subject resides but not available at this 11 time.” Id. at 4. GS Holistic does not address this internal inconsistency as to the Amended Proof 12 of Service in its amended Motion for Default Judgment. 13 B. Merits of GS Holistic’s Substantive Claims and the Sufficiency of the Complaint 14 The First Report and Recommendation also found that the Complaint’s allegations in 15 support of the trademark infringement and false designation of origin and unfair competition 16 claims were insufficient in part because GS Holistic relied “only on one instance in October 2022 17 where its undercover investigator purchased one single pink glass infuser from Ashes Plus Nine 18 with a ‘Stündenglass Mark’ affixed to it…” ECF No. 45 at 7 (citing ECF No. 1 (Compl.) ¶¶ 21, 19 30). GS Holistic did not specify in the Complaint which of its three registered Stündenglass 20 trademarks was affixed to the counterfeit infuser. In addition, the Complaint alleges that “[u]pon 21 receipt, images and/or the physical unit of the product purchased from [Ashes Plus Nine] were 22 inspected by [GS Holistic’s] agent to determine its authenticity.” Compl. ¶ 31 (emphasis added). 23 The First Report and Recommendation highlighted this ambiguity as to whether GS Holistic’s 24 agent physically inspected the infuser or just viewed images of it before confirming that it was a 25 counterfeit good containing the Stündenglass trademark(s). ECF No. 45 at 7. 26 GS Holistic argues that the reference to a single trademark in Paragraphs 30 and 31 of the 27 Complaint was a “scrivener’s error” and that reading the Complaint as a whole confirms that GS 1 Holistic alleges infringement of all three of its trademarks. ECF No. 57 at 17. Notably, GS 2 Holistic has not filed an amended complaint to fix this error. But even if the Court accepts as true 3 that the counterfeit infuser had all three of GS Holistic’s trademarks on it, that does not change the 4 fact that the October 2022 sale is just one instance of a counterfeit product bought from Ashes 5 Plus Nine. The Complaint does not otherwise allege when Defendants began selling GS Holistic’s 6 counterfeit products or provide any other details about the scope of their allegedly infringing 7 actions. GS Holistic does not address this issue in its amended Motion for Default Judgment. 8 GS Holistic did, however, attach photographs of the counterfeit infuser itself as well as 9 photographs of an unidentified individual alongside the infuser at what appears to be a smoke 10 shop. See ECF No. 57-4. It notes only that these are “pictures of [the] infringing product 11 purchased from the Defendant store.” ECF No. 57 at 18. As with the Google Maps screenshots, 12 GS Holistic has not authenticated the images pursuant to Federal Rule of Evidence 901. It has not 13 provided a declaration under penalty of perjury from the individual that took the photographs 14 establishing when and where they were taken and describing who and what is pictured in the 15 photographs. See Langer v. Mobeeus, Inc., No. CV 19-2680-DMG (JCX), 2021 WL 1657016, at 16 *1 (C.D. Cal. Feb. 3, 2021) (sustaining the defendant’s objection to photographs of its store 17 purportedly taken by a former investigator of plaintiff’s counsel—and submitted in support of 18 plaintiff’s motion for summary judgment—where the declaration from counsel “fail[ed] to show 19 counsel’s personal knowledge of the photos…and thus fail[ed] to lay a foundation to authenticate 20 them.”). GS Holistic never even specifies whether the investigator who purchased the allegedly 21 counterfeit product is the individual that took the photographs. Nor does it specify who these 22 photographs were sent to and how the investigator (or any other GS Holistic agent or employee) 23 ultimately confirmed that the product had affixed to it GS Holistic’s Stündenglass trademarks. 24 Finally, the First Report and Recommendation found that GS Holistic’s allegations 25 regarding Mr. Alreyashi’s ownership and control of Ashes Plus Nine were conclusory and lacking 26 in detail. ECF No. 45 at 8. In its amended Motion for Default Judgment, GS Holistic emphasizes 27 that Mr. Alreyashi is Ashes Plus Nine’s only officer and director and that his positions on the 1 Officer, Chief Financial Officer, Secretary.” ECF No. 57 at 9–10 (citing ECF No. 57-1). 2 However, “[t]he fact that [Mr. Alreyashi] is an owner, officer, or managing agent of [Ashes Plus 3 Nine], standing alone, does not make [him] liable for the wrongful conduct of the corporation 4 because the case law requires active, guiding participation.” Deckers Outdoor Corp. v. Fortune 5 Dynamic, Inc., No. CV 15-769 PSG (SSX), 2015 WL 12731929, at *9 (C.D. Cal. May 8, 2015) 6 (granting motion to dismiss trade dress infringement, patent infringement, and unfair competition 7 law claims against individual defendant where the complaint’s “conclusory pleading [was] 8 insufficient to state a claim for relief.”). GS Holistic has alleged no facts as to how Mr. Alreyashi 9 “direct[ed], controll[ed], ratif[ied], participat[ed] in, or [was] the moving force behind” the 10 infringement of its Stündenglass trademarks. Hewlett-Packard Co. v. Repeat-O-Type Stencil Mfg., 11 No. C-92-3330 DLJ, 1995 WL 552168, at *6 (N.D. Cal. Aug. 30, 1995); see also Partners for 12 Health & Home, L.P. v. Seung Wee Yang, No. CV 09-07849 RZ, 2011 WL 5387075, at *4 (C.D. 13 Cal. Oct. 28, 2011) (stating that “[a]n individual who personally directs a corporation in 14 committing trademark infringement, or who personally commits those acts, is personally liable for 15 that infringement” and that “[t]his is particularly true when a single individual is the corporation’s 16 sole shareholder, sole officer, and sole manager, and performs the infringing acts himself”) 17 (emphasis added). 18 C. Relief Sought 19 1. Damages 20 The First Report and Recommendation found that two affidavits from GS Holistic’s Owner 21 and CEO, Chris Folkerts, submitted in support of GS Holistic’s request for statutory damages, 22 were “equally as insufficient as the allegations in the Complaint.” ECF No. 45 at 10. They were 23 full of conclusory statements, and Mr. Folkerts focused extensively on the general sale of 24 counterfeit Stündenglass products, and not on damages caused specifically by Defendants’ 25 allegedly infringing actions. Id. Mr. Folkerts also proffered a “market share” theory, with 26 estimates as to how much GS Holistic’s 2021 sales would have been had the market not been 27 impacted by counterfeit goods but did not provide any detail on the “research” done in support of 1 First Report and Recommendation also found that GS Holistic’s request for $150,000 in statutory 2 damages was disproportionate to the Complaint’s allegation of only one sale of a single 3 counterfeit Stündenglass infuser at a price of $400. Id. at 10–11. Thus, GS Holistic failed to 4 meet its burden of proving statutory damages. Id. 5 GS Holistic did not address any of these findings in its amended Motion for Default 6 Judgment. Instead, it attaches two new affidavits from Mr. Folkerts which are only slightly 7 different than the previous affidavits. The new “Affidavit as to Damages” contains slightly more 8 detail as to GS Holistic’s sale of Stündenglass products, but also focuses extensively on the 9 general sale of counterfeit infusers and not on any specific activities undertaken by Defendants. 10 Compare ECF No. 57-7 with ECF No. 32-3. In the new “Affidavit as to Value of Damages,” 11 Mr. Folkerts notes that GS Holistic’s investigators have visited a total of 4,781 stores around the 12 country and purchased 973 counterfeit Stündenglass products. See ECF No. 57-8, ¶ 10. He also 13 claims that GS Holistic’s 2022 sales were approximately $10,800,000.00, and that based on 14 information Mr. Folkerts received from GS Holistic’s “economic expert,” the “water pipes 15 industry is currently projected to experience an annual growth rate of 18%, between 2024 and 16 2034.” Id. ¶¶ 12–13. According to Mr. Folkerts, “if the market had not been impacted by the 17 flood of inferior, mass-produced fake Stündenglass products, [GS Holistic’s] 2022 sales would 18 have been approximately $45,300,000.00.” Id. ¶ 14. 19 But the fact that GS Holistic’s investigators have visited 4,781 stores and purchased 973 20 counterfeit Stündenglass products is not relevant to damages caused by Defendants and their 21 specific infringing actions. See GS Holistic, LLC v. Puff N Go Gift Shop LLC, No. 22-CV-07634- 22 VKD, 2023 WL 4146232, at *5 (N.D. Cal. June 22, 2023), report and recommendation adopted, 23 No. 5:22-CV-07634-EJD, 2023 WL 6933625 (N.D. Cal. Aug. 23, 2023) (“[GS Holistic] offers no 24 persuasive argument or authority that defendants appropriately may be held accountable for the 25 alleged trademark violations of other retailers in the marketplace.”). “In determining the 26 appropriate amount of statutory damages to award on default judgment, courts in this district have 27 considered whether the amount of damages requested bears a plausible relationship to Plaintiff's 1 plaintiff in a trademark or copyright infringement suit is entitled to damages that will serve as a 2 deterrent, it is not entitled to a windfall.” Id. GS Holistic has failed to address in its amended 3 Motion for Default Judgment how the request for $150,000 in statutory damages is not 4 disproportionate to the Complaint’s allegation of only one sale by Defendants of a fake 5 Stüdenglass product at $400. See GS Holistic, LLC v. MSA-Bossy Inc., No. 22-CV-07638-JSC, 6 2023 WL 3604322, at *5 (N.D. Cal. May 22, 2023) (“[C]ourts may consider deterrence, but must 7 base a damages award on the particular defendant’s violation.”) 8 Moreover, even if the Court were to accept that information about all counterfeit 9 Stündenglass products in the marketplace was somewhat relevant to GS Holistic’s damages award 10 in this case, Mr. Folkerts again did not provide any detail as to how he calculated what GS 11 Holistic’s 2022 sales would have been without the existence of any counterfeit Stündenglass 12 products. Mr. Folkerts indicates that he is basing this information on his “industry knowledge,” 13 but this is a vague term that does not shed any light on how GS Holistic arrived at the numbers 14 Mr. Folkerts is presenting to the Court through his affidavit. See Civ. L.R. 7-5(b) (“An affidavit 15 or declaration may contain only facts … and must avoid conclusions and argument. Any 16 statement made upon information or belief must specify the basis therefor.”) He also mentions GS 17 Holistic’s “economic expert” as to industry growth projections but does not clarify whether this 18 economic expert also provided him with the sales data in the affidavit. Notably, GS Holistic has 19 not included an affidavit or declaration from this “economic expert” in support of its damages 20 request. As with the original “Affidavit as to Value of Damages,” this new affidavit is mostly 21 conclusory statements lacking factual support. 22 D. Costs of Litigation 23 The First Report and Recommendation found that “pre-suit investigation costs are not 24 appropriate ‘costs of the action’ under [15 U.S.C.] § 1117(a).” ECF No. 45 at 11 (quoting GS 25 Holistic LLC, v. Puff N Go Gift Shop LLC, et al., No. 22-CV-07634-VKD, 2023 WL 4146232, at 26 *6 (N.D. Cal. June 22, 2023), report and recommendation adopted, No. 22-CV-07634-EJD (N.D. 27 Cal. Aug. 23, 2023)); see also GS Holistic, LLC v. MSA-Bossy Inc., No. 22-CV-07638-JSC, 2023 1 the cost of pre-suit investigation to Defendants. The plain language ‘the costs of the action,’ 15 2 |} US.C. § 1117(a), is limited to costs incurred after ‘the action’—the court case—has begun.”). GS 3 Holistic does not address this finding in its amended Motion for Default Judgment. Instead, GS 4 || Holistic renews its request for “investigation fees” in the amount of $465.00 (ECF No. 57 at 23) 5 but cites to no case law awarding pre-suit investigation costs under Section 1117(a). 6 E. Destruction of Infringing Products 7 Finally, GS Holistic requests that the Court enter a destruction order under 15 U.S.C. 8 § 1118, requiring the Defendants, at their cost, to deliver to GS Holistic for destruction all 9 “products, accessories, labels, signs, prints, packages, wrappers, receptacles, advertisements, and 10 || other material in their possession, custody or control bearing any of the Stiindenglass trademarks.” 11 ECE No. 57 at 27. GS Holistic requested similar relief in its original Motion for Default 12 || Judgment, but the First Report and Recommendation found that it proffered no argument or 13 evidence in support of this request. ECF No. 45 at 12. GS Holistic does not address this finding 14 in the amended Motion for Default Judgment, and instead, renews its request for a destruction 3 15 order again without any supporting evidence or case law. a 16 || I. CONCLUSION 3 17 For the reasons discussed above, GS Holistic is ORDERED TO SHOW CAUSE why its 18 amended Motion for Default Judgment should not be denied as to Defendants Ashes Plus Nine 19 and Gaizan N. Alreyashi for defective service and certain deficiencies identified in this Order as to 20 the merits of GS Holistic’s substantive claims, the sufficiency of the Complaint, and in the relief 21 sought by GS Holistic. GS Holistic should file its response to this Order no later than May 29, 22 || 2024. 23 IT IS SO ORDERED. 24 || Dated: May 15, 2024 25 26 7 Me. es Le os Uhitéd States Magistrate Judge 28