United States District Court, D. South Dakota, Western Division
AUGUST K. ANDERSON d/b/a CHEVAL INTERNATIONAL, a sole proprietorship, Plaintiff;
SMARTI[AK EQUINE, LLC, PAAL GISHOLT and REBECCA MINARD, Defendants.
ORDER ON ISSUES ADDRESSED DURING MARCH 15, 2017
Lawrence L. Piersol United States District Judge
March 15, 2017, the Court held a status conference during
which the parties clarified their positions on discovery
issues and the Court ruled on pending motions. Plaintiff
appeared pro se and Defendants appeared through counsel
Richard Oparil and Thomas Fritz. Appearances were by
Court first addressed Defendants' Motion to Dismiss
Counts I and II of the Amended Complaint Against Defendant
Rebecca Minard. (Doc. 90.) Prior to the hearing on March 15,
Defendants had moved for dismissal of Minard pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim, arguing in their briefs that the Amended Complaint
was devoid of any facts that Minard took part in acts of
trademark infringement and unfair competition. In considering
the 12(b)(6) motion to dismiss before the status conference,
the Court viewed the allegations in the Amended Complaint in
the light most favorable to Plaintiff. See Eckert v.
Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008)
(citing Luney v. SGS Auto. Servs., Inc., 432 F.3d
866, 867 (8th Cir. 2005)). The Court accepted the allegations
contained in the complaint as true and drew all reasonable
inferences in favor of the nonmoving party. Coons v.
Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (citation
omitted). The Court concluded that Plaintiff pleaded
sufficient facts to state plausible!claims for trademark
infringement and unfair competition against Minard.
Accordingly, the Court denied Defendants' motion to
Court granted Plaintiff s Motion for Leave to Take Deposition
of Rebecca Minard (doc. 94) based on their need to discover
facts pertaining to Minard's involvement in the acts
alleged in the Amended Complaint. (See doc. 96 at
the Court discussed the effect of Plaintiff s pro se status
on the terms of the Protective Order,  noting that the
definition of "Highly Confidential - Attorneys' Eyes
Only" is too broad and unworkable, especially with a pro
se plaintiff. (See doc. 111, Protective Order at
¶ 2.) Defendants said they have not produced
approximately 100 to 150 pages of documents they have
designated as Attorneys' Eyes Only. They represented that
about 50 additional pages of highly confidential documents
subpoenaed from third party Dover Saddlery also have not been
turned over to Plaintiff. The Court ruled that Defendants
should submit for in camera inspection by the Court a Bates
stamped copy of all documents designated as Attorneys'
Eyes Only and not produced to Plaintiff. The Court will
determine the relevancy of the documents, the potential for
damage that could result from their disclosure, and a proper
protective order should production be ordered.
the Protective Order discussion, the Court reviewed whether
Defendants' Motion to Compel (doc. 126) had been resolved
by Anderson's production of documents and the taking of
her deposition. After some assurances by Anderson, counsel
for Defendants indicated to the Court that the remaining
issues were resolved and that the Motion to Compel is moot.
The Court ruled that the subpoena of financial information
from Anderson's accountant/tax attorney is moot now that
Defendants have been provided with all of Anderson's
available financial information.
the parties agreed to work on ensuring that Anderson obtains
legible copies of the documents produced by Defendants in
discovery. Accordingly, IT IS ORDERED:
Defendants' Motion to Dismiss Counts I and II of the
Amended Complaint Against Defendant Rebecca Minard (doc. 90)
Plaintiff s Motion for Leave to Take Deposition of Rebecca
Minard (doc. 94) is granted.
the Motion for Order Allowing August Anderson to turn Cheval
into a Sole Proprietorship (doc. 104) is granted, and
hereinafter the named Plaintiff in this case will be
"August K. Anderson, d/b/a/ Cheval International, a sole
proprietorship, " as set forth in the caption above.
Defendants' Motion to Compel (Doc. 126) is moot.
on or before Friday, March 24, 2017, Defendants shall submit
to the Court for in camera inspection a Bates stamped copy of
all documents designated as Attorneys' Eyes Only and not
produced to Plaintiff.
the parties shall cooperate to ensure that Plaintiff obtains
legible copies of documents ...