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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Pursuant to Federal Rule of Civil Procedure 26(f) and the Court’s March 15, 2018 Order 

setting Rule 16 Case Management Conference [doc. 20], Plaintiff Adult Printed Diapers, LLC 

(“ADP”), Defendant Rearz, Inc. (“Rearz”), and Northeast Mobility Center jointly submits this 

Case Management Report.

Attendance.

Rearz, APD, and Northeast Mobility Center held a telephonic conference to discuss the 

matters related to this report. For APD, Justin Clark of J. Clark law Firm, PLLC participated. 

ADULT PRINTED DIAPERS, LLC, an 

Arizona limited liability company

Plaintiff,

v.

REARZ, Inc., a Canadian corporation, Cooshie 

Tooshiez, LLC D.B.A. Crown Diapers, a Utah 

limited liability company, Faithfulness, LLC, 

Personal Care Medical Supplies, The Bottom 

Half Group, LLC, Northeast Mobility Center, 

Soft Cradle Company, Daynitecare.ca, and 

Littleforbig.com.

Defendants.

No.: 2:2018-cv-00370-DJH

JOINT CASE MANAGEMENT 

REPORT

J. Clark Law Firm, PLLC

Justin Clark (#030159)

2 North Central Avenue

18th and 19th Floors

Phoenix, AZ 85004

Phone: 602-343-1884

Fax: 602-343-1801

Email: jmc@jclarklawfirm.com

Attorneys for Plaintiff
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For Rearz, Ken Motolenich-Salas of Gallagher of Gallagher and Kennedy and Anderson Duff of 

Revision Legal participated. For Northeast Mobility Center, Samantha Butler of Quintairos, 

Prieto, Wood, & Boyer, P.A.. participated.

1. Parties.

Plaintiff: Adult Printed Diapers, LLC

Defendants: Rearz, Inc., Cooshie Tooshiez, LLC D.B.A. Crown Diapers, a Utah limited 

liability company, Faithfulness, LLC, Personal Care Medical Supplies, The Bottom Half Group, 

LLC, Northeast Mobility Center, Soft Cradle Company, Daynitecare.ca, and Littleforbig.com.

As of the date of this Joint Case Management Report, Rearz and Northeast Mobility Center have 

been served. 

2. Nature of the Case.

a. Plaintiff’s Statement

Plaintiff files this action for trademark infringement, false designation of origin, false 

advertising, and unfair competition under the Lanham Act, copyright infringement under the 

United States Copyright Act, tortious interference with prospective economic advantage, 

conversion, and unjust enrichment. On information and belief, Defendant Rearz contacted 

Plaintiff ADP’s supplier in China and purchased inventory bearing ADP’s trademarks without 

ADP’s authorization. These products had been manufactured exclusively for APD. Without 

ADP’s authorization, Rearz then imported these products into Canada where it took possession 

of the products. Once it had possession of the products, it sold large quantities to other 

distributors downstream, including Defendants Cooshie Tooshiez, LLC D.B.A. Crown Diapers, 

a Utah limited liability company, Faithfulness, LLC, Personal Care Medical Supplies, The 

Bottom Half Group, LLC, Northeast Mobility Center, Soft Cradle Company, Daynitecare.ca, 

and Littleforbig.com. Rearz, as well as the other Defendants who are downstream distributors, 

prominently used APD trademarks (including logos displayed on websites where APD branded 

products were sold and use of the AWW SO CUTE word mark on websites and in keywords 
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associated with websites). Rearz and the downstream Defendants sold substantial volumes of 

APD branded products and realized significant profits from these sales. Rearz and the 

downstream Defendants also used original, creative artwork owned by APD to advertise and 

promote their products. 

As a result of the unauthorized use of APD’s trademarks and copyrighted works, Rearz 

and the other Defendants have caused consumer confusion as to the source of the APD branded 

products they sold. Rearz and the other Defendants have also caused consumer confusion as to 

the nature of affiliation or sponsorship between themselves and APD. In addition to losing any 

profits that APD might have obtained as a result of the sale of its APD branded products, the 

market for APD’s products has been irretrievably harmed and APD’s total sales have dropped 

significantly. Rearz and the other Defendants intentionally caused this harm to APD.

b. Defendant Rearz’s Statement.

Rearz is a small business that has endured the misfortune of Plaintiff’s misplaced ire. Rearz has 

purchased authorized AWW SO CUTE branded goods from third parties and Plaintiff itself. 

Rearz is therefore protected by the first sale doctrine. Plaintiff or its agent, acting on a 

misunderstanding or deliberate misconstruction of the first sale doctrine and the laws governing 

parallel importation, have intentionally and maliciously interfered with Rearz’s business 

associates and prospective business associates by, among other things, calling third parties and 

falsely claiming to be an attorney in an effort to intimidate Rearz, its business associates, and its 

prospective business associates. Upon information and belief, Plaintiff and its agents also 

published defamatory statements about Rearz in online fora with the goal of driving customers 

away from Rearz. After Rearz filed its Answer with counterclaims asserting as much, Plaintiff 

began purging its official online accounts of defamatory content. Unfortunately for Rearz, the 

damage to Rearz’s brand caused by Plaintiff is irreparable.

In a good faith effort to avoid litigation, Rearz shared its relevant records showing inventory of 

the allegedly infringing goods. Plaintiff has taken the position that the documents provided by 
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Rearz are inaccurate. As both Plaintiff and the Court will see, the documents provided by Rearz 

in a good faith attempt to avoid wasting judicial resources were and are accurate. 

Even if Plaintiff ultimately succeeds on the merits of its claim, the documents Rearz provided 

demonstrate that the inventory at issue is not significant. When Rearz acted in good faith to 

resolve this matter short of litigation, Plaintiff made facially absurd demands not tethered to any 

of the facts or any applicable law. Viewed in conjunction with Plaintiff’s extra-judicial 

interference with Rearz’s business, Plaintiff’s lawsuit is misguided at best and pretextual at 

worst. One illustration of Plaintiff’s motive is its allegation that Rearz uses Plaintiff’s trademark 

as a search engine keyword to drive online traffic. Rearz has denied this allegation and, in part 

because Rearz discovered showing that Plaintiff uses Rearz’s trademark as a search engine 

keyword to drive internet traffic, has asserted the affirmative defense of unclean hands.

Defendant Northeast Mobility Center’s Statement:

Defendant Northeast Mobility Center (“NEMC”) is a boutique, family-owned medical supply 

and equipment company that sells a variety of supply solutions, including adult diapers. All of 

Plaintiff’s claims against NEMC stem from an alleged unauthorized resale of Aww So Cute 

diapers. Upon information and belief, NEMC purchased a small quantity of authorized, Aww 

So Cute brand diapers from Aww So Cute and from Third-Party Defendant Rearz, which 

NEMC resold to its customers in the condition in which the products were received. In 

accordance with the First Sale Doctrine, such sales were authorized and protected from the 

claims alleged by Plaintiff in the instant case. Defendant NEMC denies liability for each and 

every claim asserted against it by Plaintiff. NEMC further denies that any of its actions caused 

or contributed to Plaintiff’s alleged damages. NEMC also asserts all available affirmative 

defenses alleged in its Answer, which was filed on April 20, 2018.

3. Jurisdiction

Pursuant to 28 U.S.C. § 1331, the Court has original jurisdiction over this action because 
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Plaintiff alleges violations of the Lanham Act, 15 U.S.C. § 1225, et seq. and violations of the 

Copyright Act, 17 U.S.C. § 101, et seq. The Court has supplemental jurisdiction over Plaintiff’s 

state law claims pursuant to 28 U.S.C. § 1367.

4. Service of Parties

Rearz was served by process server in March 2018; it has since answered the Complaint 

and filed a counterclaim against APD. Defendant Northeast Mobility Center was served by 

process server in March 2018 and timely filed its Answer on April 20, 2018.Plaintiff is in the 

process of serving the remaining Defendants.

5. Additional Parties / Amending Pleadings

Plaintiff may, during the course of conducting discovery with the other Defendants, 

identify additional parties that may need to be included. In such a case, Plaintiff will seek leave 

of court to amend the Complaint to add these parties and/or any other additional claims that it 

might identify it has against any of the Defendants.

6. Contemplated Motions

Plaintiff may move to file a Motion to Dismiss Defendant Rearz’s Counterclaim for 

failure to state a claim for which relief can be granted if the Counterclaim is not amended to 

provide more clarity to put APD on notice for defense of plausible claims. Plaintiff may also 

move to file a Motion for Judgment on the Pleadings or, in the alternative, a Motion for 

Summary Judgment on some or all of the claims following discovery. Absent an amicable 

settlement of this matter, Rearz anticipates either a motion for judgment on the pleadings 

pursuant to Rule 12(c) of the Fed. R. Civ. P. as to all of the claims asserted by APD against

Rearz after APD files its responsive pleading and pending review of information provided 

pursuant to MIDP and/or a motion for summary judgment as soon as adequate discovery may be 

had. Defendant NEMC also anticipates filing a Motion for Summary Judgment when 

appropriate. 

7. Referral to Magistrate Judge
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The parties believe that the appointment of a Magistrate Judge is appropriate for the 

purposes of presiding over a settlement conference between the parties. Otherwise, the parties 

do not believe that this case is suitable for reference to a United States Magistrate Judge for trial.

8. Related Cases

None.

9. Issues Relating to Preservation, Disclosure, or Discovery of Electronically Stored 

Information

The parties are aware that some evidence involved in proving the parties’ claims and 

defenses in this case involved ESI. During the telephonic conference, counsel for APD and 

Rearz discussed the importance of preserving ESI, and expect to have further discussions 

regarding provision of ESI. If disagreements arise relating to the production of certain ESI, the 

parties will meet and confer prior to service of objections and responses to discovery. ESI shall 

be provided by the parties in PDF format, TIFF images, or other useable agreed-upon format.

10.Issues Relating to Claims of Privilege or Work Product

None identified or anticipated at this time.

11.Order Under Federal Rule of Evidence 502(d)

Plaintiff ADP and Defendant Rearz believe that some of the information involved in this 

case is commercially sensitive and merits protection from the public eye or dissemination. 

Consequently, ADP and Rearz plan to file a stipulated protective order. Depending upon the 

information requested by Plaintiff, Northeast Mobility Center may also request a protective 

order prior to disclosing sensitive or otherwise confidential information.

12.Compliance with the MIDP

ADP and Rearz plan to serve their MIDP responses upon each other no later than May 2, 

2017. Northeast Mobility Center will serve its MIDP responses by May 21, 2018.

13.Discovery

a. The extent, nature and location of discovery anticipated by the parties.
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The parties expect much of the discovery to come from records maintained by the parties,

written discovery responses, and depositions. Discovery is expected to take place in Arizona 

New York and Ontario, Canada. At this time, the parties have not identified specific witnesses 

that they would like to depose.

b. Suggested changes, if any, to the discovery limitations imposed by the Federal 

Rules of Civil Procedure.

None.

c. The number of hours permitted for each deposition.

At this time, none of the parties have identified specific witnesses that they would like to 

depose. Once the parties have identified specific witnesses, they will confer to discuss any time 

limits for conducting each deposition.

14.Service of MIDP Discovery Responses

ADP and Rearz plan to serve their MIDP responses upon each other no later than May 2, 

2017. Northeast Mobility Center will serve its MIDP responses by May 21, 2018.

15.Deadlines

Completion of Fact Discovery and Deadline for Final Supplementation of Discovery 

Responses under the MIDP: November 2, 2018

Expert Disclosures: As both APD and Rearz assert claims, the parties propose a 

simplified expert disclosure plan wherein the parties share deadlines for opening and rebuttal 

expert disclosures on their respective claims for which the party bears the burden of proof.

Expert Disclosures on Claims for Which the Party Bears the Burden of Proof: 

December 7, 2018

Rebuttal Expert Disclosures: January 11, 2019

Completion of Expert Depositions (Close of Expert Discovery): February 1, 2019

Deadline for Filing Dispositive Motions: March 15, 2019

16.Deadline for Face-to-Face Good Faith Settlement Talks: September 21, 2018
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17.Request for Jury Trial

APD and Rearz have demanded a jury trial. The demand is not contested.

18.Estimated Length of Trial

Four days.

19.Settlement Prospects

Prospects for settlement are uncertain at this time. The parties will request reference to a 

Magistrate Judge for a settlement conference

20.Other Matters

None at this time.

J. Clark Law Firm, PLLC

By: /s/Justin Clark

Justin M. Clark

Attorney for Plaintiff/Counterclaim 

Defendant Adult Printed Diapers, LLC

Gallagher & Kennedy, P.A.

By: /s/Kenneth Motolenich-Salas

Kenneth Motolenich-Salas

Attorney for Defendant/Counterclaim 

Plaintiff Rearz, Inc.

Revision Legal, PLLC

By: /s/Anderson Duff

Anderson Duff

Attorneys for Defendant/Counterclaim 

Plaintiff Rearz, Inc.
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Quintairos, Prieto, Wood & Boyer, P.A.

By: /s/Samantha Butler

 Terence N. Cushing, Esq.

 Samantha L. Butler, Esq.

 Attorneys for Defendant Northeast Mobility 

Center
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CERTIFICATE OF SERVICE

I hereby certify that on the 30 day of April, 2018, I electronically transmitted the 

foregoing to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice 

of Electronic Filing to all CM/ECF registrants in this action.

By: /s/Justin Clark