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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

FITBIT, INC.,

Plaintiff,

v.

LAGUNA 2, LLC, et al.,

Defendants.

Case No. 17-cv-00079-EMC 

ORDER DENYING DEFENDANTS’ EX 

PARTE APPLICATION FOR 

RECONSIDERATION

Docket No. 162

Cali Resources, Inc., Carlos Kelvin, and Great Value LLC (collectively, “Cali 

Defendants”) have moved for reconsideration of the Court’s order of January 5, 2018, in which it 

granted Fitbit, Inc.’s motion to dismiss and/or strike Cali’s libel and related counterclaims. As 

previously indicated, the Court construes the pending motion as one for leave to file a motion for 

reconsideration. See Civ. L.R. 7-9(a) (providing that “[n]o party may notice a motion for 

reconsideration without first obtaining leave of Court to file the motion”). Having considered the 

papers submitted, the Court hereby DENIES the motion for relief.

I. DISCUSSION

A motion for leave to file a motion for reconsideration is governed by Civil Local Rule 7-

9. Under that rule, a party may ask for leave under limited circumstances only – e.g., where there 

is “[a] manifest failure by the Court to consider material facts or dispositive legal arguments which 

were presented to the Court before such interlocutory order.” Civ. L.R. 7-9(b). The Cali 

Defendants have failed to show that they meet any of the circumstances identified in Rule 7-9 or 

that, even if they did, reconsideration would result in a ruling in their favor.

As an initial matter, the Court notes that the Cali Defendants have attacked only a part of 

the Court’s prior order – more specifically, that part of the order that deals with libel and related 
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United States District Court

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counterclaims predicated on Fitbit’s alleged communications with Customs and Border Patrol 

(“CBP”).1 Moreover, the Cali Defendants have attacked only a part of the Court’s rulings with 

respect to Fitbit’s alleged communications with CBP. In its prior order, the Court held that 

Fitbit’s alleged communications were protected by California’s anti-SLAPP statute, the California 

litigation privilege, and/or the Noerr-Pennington doctrine. Here, the Cali Defendants argue that 

the Court made an error with respect to its anti-SLAPP analysis only. Because the Court found 

independent grounds for dismissal – i.e., the litigation privilege and the Noerr-Pennington doctrine 

– ultimately, the Cali Defendants are asking the Court to reconsider its fee ruling only, which was 

predicated on the anti-SLAPP statute.

In its prior order, the Court held that Fitbit’s alleged communications with CBP were 

protected by the anti-SLAPP statute because (1) its act of contacting CBP was an act in 

furtherance of its right to petition (the Cali Defendants did not dispute such) and (2) Cali failed to 

make out a prima facie factual showing in support of its libel and related counterclaims. See Baral 

v. Schnitt, 1 Cal. 5th 376, 384 (2016) (stating that a court’s “inquiry is limited to whether the 

plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to 

sustain a favorable judgment”). With respect to (2), the Court noted as follows:

Cali has provided evidence showing that the produced seized by 

CBP was not in any counterfeit packaging – i.e., packaging using 

the Fitbit mark. See Kelvin Decl. ¶ 11 & Ex. 2 (photographs). But 

Fitbit is not simply claiming that counterfeit packaging was a 

problem. It has also argued that counterfeit chargers and accessories 

were sold as accompanying product, see, e.g., Docket No. 29 (Supp. 

Millar Decl. ¶¶ 15-16, 18-19) (stating that products purchased 

through the Groupon website were shipped in counterfeit Fitbit 

packaging, and with counterfeit charging cables and dongles falsely 

bearing Fitbit marks) . . . , and the photographs provided by Cali do 

not establish that the chargers and accessories (as opposed to the 

packaging) did not bear any Fitbit trademark.

 

1

In light of this fact, it is difficult to see how – as the Cali Defendants maintain – the counterclaim 

is potentially worth “multimillion[s] [of] dollar[s].” App. at 3. Indeed, one could argue that a 

libel made to the CBP only (and not a private party such as Groupon) would not do much to 

damage the Cali Defendants’ reputation. Furthermore, if a libel were found, then the Cali 

Defendants would presumably get back the seized property which it could then sell. Even if the 

Cali Defendants could not command the price it could have had the goods not been seized, the 

Cali Defendants have represented that the full value of the seized goods is only “several hundred 

thousand dollars,” and not millions. Docket No. 132 (Kelvin Decl. ¶ 11).
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United States District Court

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Docket No. 161 (Order at 12-13).

In the pending motion, the Cali Defendants criticize the Court for relying on the Millar 

declaration because that declaration was not filed in conjunction with Fitbit’s motion to dismiss 

and/or strike counterclaims, but rather was filed in conjunction with earlier motions. According to 

the Cali Defendants, had they known that the Court would make a ruling based on the Millar 

declaration, they would have provided counter-evidence. See, e.g., Kelvin Decl. ¶ 2 (in support of 

motion for leave to reconsider, testifying that “[t]he products, related to this case, which were 

seized by U.S. Customs included only original FitBit connecting cables and original FitBit dongles 

which we received from BCS”).

The Court is not persuaded by the Cali Defendants’ position for several reasons. First, the 

Cali Defendants ignore the fact that the Court need not have relied on the Millar declaration at all. 

The Cali Defendants’ libel and related counterclaims are predicated on Fitbit’s alleged 

representation to CBP that “goods being transported from Mexico to [Cali] were counterfeit.” 

Am. Ans. ¶ 12. There is no dispute that the goods being transported included Fitbit accessories 

such as cables. See Docket No. 132 (Kelvin Decl., Ex. 2) (photographs). There is also no dispute 

that, in its affirmative case, Fitbit has accused the Cali Defendants of counterfeiting accessories 

such as cables. See, e.g., SAC ¶ 1 (alleging that products sold or offered for sale by all defendants 

“included counterfeit and/or otherwise non-genuine charging cables and other accessories”). And 

Fitbit called out that fact expressly in its motion to dismiss and/or strike. See Docket No. 127

(Mot. at 15) (arguing that “there is no doubt that the Cali Defendants’ products were shipped in 

counterfeit packaging and that they shipped with counterfeit chargers”). Thus, it was the Cali 

Defendants’ burden – for purposes of the anti-SLAPP analysis – to make out a prima facie 

showing that the cables were not counterfeit (and not just, e.g., wristbands or packaging). The 

Cali Defendants failed to offer any evidence as to the cables. See, e.g., Docket No. 143 (Kelvin 

Decl. ¶ 11) (only testifying that “[t]he band[s] seized by CBP were in class plastic bags without 

[Fitbit] trademark labels”). 

Second, although the Court need not have relied on the Millar declaration, its doing so did 

not violate the Cali Defendants’ rights. The Cali Defendants have not cited to any authority 
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barring the Court from considering evidence in the record of the case, even if that evidence was 

not directly submitted in conjunction with the pending motion for relief. Moreover, even from a 

due process standpoint, the Court sees no unfairness to the Cali Defendants. The Millar 

declaration has been a critical piece of evidence in this case – evidence on which Fitbit has relied 

to obtain temporary and preliminary injunctive relief as it addresses Fitbit’s quality control 

process. Thus, it is more than likely that the Cali Defendants were familiar with the contents of 

the declaration. (The Cali Defendants stipulated to preliminary injunctive relief in Fitbit’s favor.)

Third, as Fitbit points out, even though Fitbit may not have cited the Millar declaration in 

its motion to dismiss and/or strike counterclaims, it did cite other evidence to the same effect. 

More specifically, in its motion, Fitbit stated: “[T]here is no doubt that the Cali Defendants’ 

products were shipped in counterfeit packaging (see, e.g., comparison photographs counterfeit 

packaging in ¶ 81 of the SAC) and that they shipped with counterfeit chargers (see, e.g., 

comparison photographs of counterfeit chargers in Exhibit E to Declaration of Jeff Bonham, Dkt[.] 

No. 50-6).” Docket No. 127 (Mot. at 15). Exhibit E to the Bonham Declaration consists of 

photographs showing, inter alia, a picture of an alleged nongenuine cable displaying the Fitbit 

diamond logo.

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Finally, the Cali Defendants’ submission of a declaration from Cali’s CEO, as a part of the 

pending motion, is untimely as the Cali Defendants easily could have included the information 

contained therein as part of the prior declaration provided by the Cali CEO (i.e., in opposition to 

Fitbit’s motion to dismiss and/or strike).

2

 This is especially true since, as noted above, in its 

motion to dismiss and/or strike, Fitbit called out the fact that its claim encompassed counterfeit 

chargers displaying the Fitbit diamond logo.

For the foregoing reasons, the Cali Defendants’ motion for leave to reconsider is denied.

This order disposes of Docket No. 162.

IT IS SO ORDERED.

Dated: January 30, 2018

______________________________________

EDWARD M. CHEN

United States District Judge

 

2

See Kelvin Decl. ¶ 2 (alleging that the products “seized by U.S. Customs included only original 

FitBit connecting cables and original FitBit dongles which we received from BCS”).