Hon. Thomas M. Durkin · U.S. District Court for the Northern District of Illinois
=== Harley-Davidson v. The Partnerships ===
Case: 1:25-cv-00808 Document #: 28 Filed: 03/04/25 Page 1 of 2 PageID #:696 UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois − CM/ECF NextGen 1.8 (rev. 1.8.3) Eastern Division Harley−Davidson Motor Company, Inc. v. The Partnerships and Unincorporated Associations Identified on Schedule A Case No.: 1:25−cv−00808 Honorable Thomas M. Durkin Plaintiff, Defendant. NOTIFICATION OF DOCKET ENTRY This docket entry was made by the Clerk on Tuesday, March 4, 2025: MINUTE entry before the Honorable Thomas M. Durkin: Pending before the Court is Plaintiff's ex parte motion for a temporary restraining order ("TRO") against 39 defendants ("Defendants"). This Court has declined to grant the extraordinary remedy of a TRO in other "Schedule A" cases absent evidence that each Defendant sold and delivered an allegedly infringing product to an Illinois customer. Following the Court's inquiry about that evidence during the January 29, 2025 ex parte hearing on the motion for a TRO in this case, Plaintiff's counsel filed a supplemental brief contesting the delivery requirement and a renewed motion. See R. 25. Upon review of the relevant case law and the factual record, the Court finds the evidence that Plaintiff ordered and paid for an allegedly infringing product to be delivered to Illinois sufficient to show that each Defendant purposefully availed itself of the privilege of conducting business in Illinois, without confirmation of delivery to Illinois. See R. 26 16 (attesting that orders were placed from all Defendants to addresses in Illinois); R. 16−1 (screenshots showing confirmed, paid−for orders by buyers with Illinois shipping addresses); Curry v. Revolution Lab'ys, LLC, 949 F.3d 385, 400 (7th Cir. 2020) (defendant's sales to Illinois residents "provides solid evidence that [defendant] has purposely exploited the Illinois market") (citation omitted); Illinois v. Hemi Grp. LLC, 622 F.3d 754, 758 (7th Cir. 2010) (finding purposeful direction where defendant both maintained website from which orders could be placed from Illinois and "knowingly did do business with Illinois residents&qu;ot;); see also NBA Props., Inc. v. HANWJH, 46 F.4th 614, 62223 (7th Cir. 2022) (citing Curry and Hemi with approval); Pit Viper LLC v. Xi'an Jiaye Tengda Trading Co., Ltd., No. 23 C 14761, 2024 WL 5039888, at *4 (N.D. Ill. Dec. 9, 2024) (finding personal jurisdiction where defendant sold a counterfeit product to plaintiff for shipment to an Illinois address but cancelled the order several days later); Manchester United Football Club Ltd. v. Partnerships & Unincorporated Associations Identified on Schedule A, No. 24 CV 5692, 2024 WL 5202272, at *5 (N.D. Ill. Dec. 23, 2024) (finding personal jurisdiction where defendant accepted an order from an Illinois resident, received payment, and then canceled the order). On that basis, the renewed motion for a TRO [27] is granted and the previously filed motion for a TRO [12] is stricken as moot. Plaintiff is to submit a proposed TRO Case: 1:25-cv-00808 Document #: 28 Filed: 03/04/25 Page 2 of 2 PageID #:697 consistent with this order to the Proposed Order Inbox. Mailed notice. (ecw, ) ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information. For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.
=== NBA Properties v. The Partnerships ===
Case: 1:24-cv-12548 Document #: 27 Filed: 01/03/25 Page 1 of 3 PageID #:1143 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION NBA PROPERTIES, INC., Plaintiff, No. 24 C 12548 v. Judge Thomas M. Durkin THE PARTNERSHIPS AND UNINCORPORATED ASSOCIATIONS IDENTIFIED ON SCHEDULE A, Defendants. ORDER Following an ex parte hearing on December 17, 2024, the Court denied without prejudice Plaintiff’s motion for a temporary restraining order (“TRO”), asset restraint, and expedited discovery. At the hearing, the Court inquired about two issues: (1) proof that an allegedly infringing product was purchased in and shipped to Illinois; and (2) proof that the allegedly infringing product was being offered for sale within the last two months. Evidence of a purchase shipped to Illinois is required to establish personal jurisdiction. By contrast, evidence of an offer for sale within the last two months is necessary to demonstrate ongoing harm. Of course, proof of a purchase of an allegedly infringing product within the last two months would check both boxes. Plaintiff now moves for reconsideration, arguing that the two-month limit does not afford sufficient time to investigate infringing conduct, make a test purchase, have the product delivered to Illinois, and prepare and file a motion for a TRO. This 1 Case: 1:24-cv-12548 Document #: 27 Filed: 01/03/25 Page 2 of 3 PageID #:1144 argument misunderstands the Court’s requirements. The Court does not require a purchase within two months of seeking a TRO. The purchase requirement is relevant to establishing personal jurisdiction, whereas the two-month time limit is not. Rather, the two-month time limit is a marker of ongoing harm. Plaintiff may demonstrate ongoing harm in a variety of ways, such as: (1) screenshots of the listings collected within the last two months; (2) screenshots older than two months that are accompanied by a declaration attesting that the listings reflected in the screenshots have been checked within the last two months and remain active; or (3) a purchase from Illinois within the last two months. Plaintiff also contends that the two-month limit is unreasonable because sellers use tactics to evade enforcement once they receive notice of a plaintiff’s test purchase, such as deleting or modifying infringing listings or shutting down stores and registering new stores under new aliases. Perhaps all this is true. Nevertheless, a TRO requires “specific facts” that “clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b); see also Hughes v. Moore, No. 14-CV-1410-MJR, 2015 WL 122232, at *2 (S.D. Ill. Jan. 8, 2015) (“A TRO is an extraordinary remedy that will not be issued in the absence of specific allegations of immediate, irreparable, and ongoing harm.” (citing Bedrossian v. Northwestern Memorial Hosp., 409 F.3d 840, 842 (7th Cir. 2005 . If a listing has been inactive for more than two months when a plaintiff seeks a TRO, it begs the question of what immediate, irreparable, and ongoing harm would result in the absence of a TRO. 2 Case: 1:24-cv-12548 Document #: 27 Filed: 01/03/25 Page 3 of 3 PageID #:1145 Plaintiff alternatively argues that even without ongoing sales of the allegedly infringing products, it will be irreparably harmed without an asset restraint because sellers are likely to hide or transfer their ill-gotten profits from prior sales beyond this jurisdiction. But sellers’ financial accounts in online marketplaces often include the revenue from many different listings. The more time that passes between when a plaintiff observes an allegedly infringing listing and when a plaintiff seeks an asset restraint, the less likely it is that an account includes the revenue from that listing, as opposed to revenue from other non-infringing listings. Drawing the line at two months affords some basis to believe that the account to be frozen contains the profits gained from the allegedly infringing activity. Cf. CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 996 (7th Cir. 2002) (holding that asset freeze was appropriate “[s]ince the assets in question . . . were profits” of unlawful conduct). Here, the Court requires some verification that an allegedly infringing listing is currently active or has been active within the past two months. If a Defendant’s listing has not been active in the last two months, Plaintiff may, of course, still pursue a case against that Defendant. The Court will also consider a request for expedited third-party discovery. But the Court will not grant a TRO or asset restraint. For those reasons, Plaintiff’s motion for reconsideration (R. 25) is denied. ENTERED: ______________________________ Honorable Thomas M. Durkin United States District Judge Dated: January 3, 2025 3
=== Gabrielle Delgado v. The Partnerships ===
Case: 1:24-cv-11940 Document #: 17 Filed: 12/19/24 Page 1 of 4 PageID #:333 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION GABRIELLE BRIANNA DELGADO, Plaintiff, v. THE PARTNERSHIPS AND UNINCORPORATED ASSOCIATIONS IDENTIFIED ON SCHEDULE A, Defendants. No. 24 C 11940 Judge Thomas M. Durkin ORDER Plaintiff has moved for a temporary restraining order based on her claim for copyright infringement. The Supreme Court has “made clear that there is no . . . presumption” of irreparable harm simply by showing the defendant infringed a copyrighted work. See Flava Works, Inc. v. Gunter, 689 F.3d 754, 755 (7th Cir. 2012). However, “it is well established that the loss of goodwill and reputation, if proven, can constitute irreparable harm,” and courts have applied this principle to find irreparable harm in copyright cases. See Life Spine Inc. v. Aegis Spine, Inc., 8 F.4th 531, 546 (7th Cir. 2021). Plaintiff alleges that she is “irreparably damaged through loss of control over the creative content of the valuable copyright, reputation, goodwill, the quality, and ability to license as a result of Defendants’ actions.” R. 1 at 3. Plaintiff also states in her declaration that the copyrighted image “is widely recognized and exclusively associated by consumers, the public, and the trade with my name.” R. 15-3 at 3. But Case: 1:24-cv-11940 Document #: 17 Filed: 12/19/24 Page 2 of 4 PageID #:334 Plaintiff alleges no facts to support her allegation that she possesses a valuable reputation or goodwill that Defendants could injure. Mere allegation that Plaintiff has such a reputation is insufficient without more to establish irreparable harm that justifies the extraordinary remedy of an ex parte temporary restraining order. More factual allegations are required. See, e.g., Spin Master Ltd. v. The Partnerships etc. on Schedule A, 24 C 3006, Dkt. # 16 (N.D. Ill. Apr. 17, 2024) (declaration containing allegations the Court found sufficient to establish irreparable harm from a copyright violation); Peanuts Worldwide LLC v. The Partnerships etc. on Schedule A, 24 C 8685, Dkt. # 17 (N.D. Ill Sept. 24, 2024 (same).1 Even if Plaintiff does not have goodwill or a reputation among consumers, Plaintiff’s work might be sufficiently unique that it is recognized and sought after by consumers such that Defendants’ sales of copies directly harm Plaintiff’s business in a one-to-one or zero-sum fashion. Courts have found irreparable harm in such circumstances from a copyright violation where the plaintiff’s works are “unique” or “niche” and it can be readily inferred that the defendant’s sale of copies will directly harm the plaintiff’s business, as opposed to more general harm to the market for Plaintiff’s product. See Life Spine, 8 F.4th at 546 (“The court explained that Life Spine had worked to develop ‘niche contracts’ with hospitals by marketing the ProLift as a unique product.”); M1 Holdings Inc. v. Members 1st Fed. Credit Union, 2022 WL 1 The Court acknowledges that it has in the past entered temporary restraining orders based on allegations similar to those Plaintiff makes here. The Court is aware that this order marks a reconsideration by the Court of the proper application of the standard for establishing irreparable harm. 2 Case: 1:24-cv-11940 Document #: 17 Filed: 12/19/24 Page 3 of 4 PageID #:335 17487942, at *11 (N.D. Ill. Dec. 7, 2022) (“It claims it will suffer damage to its reputation and goodwill but provides no objective evidence of its own standing in the market, nor any evidence that M1 Holdings’ reputation or quality is inferior such that confusion would negatively reflect on Members 1st.”); see also Wainwright Sec., Inc. v. Wall St. Transcript Corp., 558 F.2d 91, 94 (2d Cir. 1977) (defendant’s sales of the alleged copies would “materially reduce the demand for [the plaintiff’s] services”). Plaintiff, however, has not made such allegations here. Plaintiff’s copyright is for a non-descript drawing of a mushroom. Without more specific facts demonstrating that consumers recognize Plaintiff’s drawing and seek it out for purchase, it is not plausible that purchases of Defendants’ products directly harm Plaintiff’s sales, which might justify a temporary restraining order. Regardless of the copyrighted work’s unique nature, some courts have found sales on “internet stores” of products that allegedly violate a copyright demonstrate irreparable harm because “the customers are unquantifiable and not easily identified.” Antsy Labs, LLC v. Individuals Identified on Schedule A, 2022 WL 17176498, at *3 (N.D. Ill. Nov. 23, 2022); see also Roadget Bus. Pte. Ltd. v. PDD Holdings Inc., 2023 WL 4865005, at *10 (N.D. Ill. July 31, 2023). This Court disagrees. The number of customers and sales is easily determined with a subpoena to Amazon or the other relevant e-commerce platform. For these reasons, the Court finds that Plaintiff has not established that it will suffer irreparable harm without injunctive relief. Therefore, Plaintiff’s motion [14] is denied in part and granted in part. The motion is denied in that the Court will not 3 Case: 1:24-cv-11940 Document #: 17 Filed: 12/19/24 Page 4 of 4 PageID #:336 enter a temporary restraining order, a temporary asset restraint, or order expedited discovery. The motion is granted in that service of process by email and/or electronic publication is permitted. The motion for leave to file under seal [12] is denied. The motion for leave to file excess pages [13] is granted. ENTERED: ______________________________ Honorable Thomas M. Durkin United States District Judge Dated: December 19, 2024 4
=== Zhaoshi Tang v. The Partnerships ===
Case: 1:23-cv-04587 Document #: 88 Filed: 01/04/24 Page 1 of 7 PageID #:417 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ZHAOSHI TANG, Plaintiff, No. 23 C 4587 v. Judge Thomas M. Durkin THE PARTNERSHIPS AND UNINCORPORATED ASSOCIATIONS IDENTIFIED ON SCHEDULE A, Defendants. MEMORANDUM OPINION AND ORDER Defendants Yummy Makeup and Wings of Esa seek dismissal for misjoinder under 35 U.S.C. § 299. R. 50. For the following reasons, that motion is granted, and the Court dismisses the case against Yummy Makeup and Wings of Esa without prejudice. Background Plaintiff brought this action for design patent infringement against 19 defendants in connection with U.S. Patent no. D927,221 for the ornamental design of a shelf used to hang an ironing board while storing an iron and other products. See R. 1; R. 8. Defendants Yummy Makeup and Wings of Esa moved to dismiss for misjoinder and plain dissimilarity between the patented design and their products. R. 50. Following oral argument and an examination of the patented design and Yummy Makeup and Wings of Esa’s products, the Court held that the products were 1 Case: 1:23-cv-04587 Document #: 88 Filed: 01/04/24 Page 2 of 7 PageID #:418 not plainly dissimilar and denied dismissal on that ground.1 The Court now considers whether dismissal is proper for misjoinder. Discussion Before the adoption of the Leahy-Smith America Invents Act of 2011, 35 U.S.C. § 100 et seq. (“AIA”), “it was common for patent holders . . . to sue or attempt to sue multiple infringers in a single suit. The AIA sought to put a stop to this.” Oakley, Inc. v. Partnerships & Unincorporated Associations Identified on Schedule “A”, No. 21 C 536, 2021 WL 308882, at *1 (N.D. Ill. Jan. 30, 2021). The AIA provides that accused infringers of a patent may be joined in a single action as defendants only if a right to relief “is asserted against the parties jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences” that involve making, using, importing, offering, or selling “the same accused product or process,” 35 U.S.C. § 299(a)(1), and only if there are questions of fact common to all defendants that will arise, id. § 299(a)(2). Importantly, “accused infringers may not be joined in one action as defendants . . . based solely on allegations that they each have infringed the patent or patents in suit.” Id. § 299(b). And even if these requirements are met, joinder may still be refused “in the interest of avoiding prejudice and delay, ensuring judicial economy, or safeguarding the principles of fundamental fairness.” In re EMC Corp., 677 F.3d 1351, 1360 (Fed. Cir. 2012). 1 During the hearing, the Court also considered defendants Docoo and Lzhevsk-US’s motion to dismiss on dissimilarity grounds. Because those defendants did not raise joinder, the Court does not consider that issue with respect to those defendants. 2 Case: 1:23-cv-04587 Document #: 88 Filed: 01/04/24 Page 3 of 7 PageID #:419 Courts typically find that claims against different defendants arise out of the same transaction or occurrence or series of transactions or occurrences when there is a “logical relationship” between them. Id. at 1358. Such a relationship “requires shared, overlapping facts that give rise to each cause of action, and not just distinct, albeit coincidentally identical, facts.” Id. at 1359. Courts have “considerable discretion” and “flexibility” in determining whether a plaintiff has plausibly alleged such a relationship. See UWM Student Ass’n v. Lovell, 888 F.3d 854, 863 (7th Cir. 2018). Plaintiff’s complaint falls short of showing a logical relationship. While he alleges, on information and belief, that the defendants are acting in concert with each other, R. 1 ¶ 9, his well-pled factual allegations do not support a reasonable inference that the defendants are part of a network of infringers or that there is substantial evidentiary overlap in the claims against each of them. First, Plaintiff asserts that all of the defendants’ online storefronts share numerous similarities, such as the use of the same product images and language, including content copied from Plaintiff’s listing, and similar pricing. R. 1 ¶ 12. But that is not borne out by the examples Plaintiff attaches to his complaint. Insofar as the defendants use the same words and images, they are generally descriptive of the function of the shelves being sold (e.g., images of irons on the selves, use of “ironing board hanger”), and the prices range significantly. See R. 9; see also Forrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007) (“To the extent that an exhibit attached to or referenced by the complaint contradicts the complaint’s 3 Case: 1:23-cv-04587 Document #: 88 Filed: 01/04/24 Page 4 of 7 PageID #:420 allegations, the exhibit takes precedence.”). Even if the webpages were identical, it would not necessarily suggest the defendants are connected. To the contrary, it would hardly be surprising that multiple, independent sellers of similar products would parrot each other’s webpages or match each other’s prices. See Patent Holder Identified in Exhibit 1 v. Does 1-254, No. 21 C 514, 2021 WL 410661, at *2 (N.D. Ill. Feb. 6, 2021); cf. Rudd v. Lux Products Corp., No. 09-cv-6957, 2011 WL 148052, at *3 (N.D. Ill. Jan. 12, 2011) (“Simply alleging that Defendants manufacture or sell similar products does not support joinder under Rule 20.”). Likewise, that the defendants use the same accepted payment and checkout methods and hosting services, R. 1 ¶ 12, is simply a reflection of the fact that they operate stores through Amazon, not an indicator that they are part of a network of infringers. Such “coincidentally identical” facts do not support joinder. In re EMC, 677 F.3d at 1359. None of Plaintiff’s remaining allegations plausibly tie the defendants or claims against them together. To the extent that he suggests a link by virtue of the fact that their companies are located in China and have similar numbers of employees, the Court is not persuaded. R. 1 ¶ 15; see also Bose Corp. v. Partnerships & Unincorporated Associations Identified on Schedule “A”, 334 F.R.D. 511, 514 (N.D. Ill. 2020). And the allegations that defendants in this case and others “use of a variety of common tactics to evade enforcement efforts,” such as registering new accounts when they receive notice of a lawsuit, shipping in small quantities, operating multiple credit card merchant accounts, and moving funds offshore, R. 1 ¶¶ 11, 13, 14, are “highly generic and apply equally to individuals and entities engaging in activities 4 Case: 1:23-cv-04587 Document #: 88 Filed: 01/04/24 Page 5 of 7 PageID #:421 that are not the subject of this suit.” See Ilustrata Servicos Design, Ltda. v. Partnerships & Unincorporated Associations Identified on Schedule “A”, No. 21-CV- 05993, 2021 WL 5396690, at *2 (N.D. Ill. Nov. 18, 2021). Essentially, Plaintiff’s complaint boils down to a claim that the defendants infringed on his design patent in the same way. That is not sufficient to link one defendant’s infringement to another as part of “the same transaction, occurrence, or series of transactions or occurrences.” 35 U.S.C. § 299(a); see also AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 998 (D.C. Cir. 2014). It bears noting that this Court has previously held that joinder of multiple alleged counterfeiters in a trademark action is proper under Rule 20. Bose, 334 F.R.D. at 516; see also Fed. R. Civ. P. 20(a)(2)(A) (permitting defendants to be “joined in one action . . . if any right to relief is asserted against them . . . with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences”). The Court explained that the Rule’s inclusion of the term “occurrence” suggests that joinder may be appropriate in cases where there is mass harm but no express “transactional” coordination among the attackers. Bose, 334 F.R.D. at 516. The Court described how a “swarm” of counterfeiters attacking Bose’s trademarks fit the bill, contrasting this game of “whack-a-mole” with the analogy offered in AF Holdings: individuals who play at the same blackjack table, with the same strategy and maybe even the same dealer and winnings, at different times. Id. The “swarm” was the occurrence from which Bose sought shelter, not any one act of counterfeiting. Id. at 517. 5 Case: 1:23-cv-04587 Document #: 88 Filed: 01/04/24 Page 6 of 7 PageID #:422 That is not what we have here. This case does not involve a “swarm” of counterfeiters passing off their products as those of a single plaintiff that owns a valuable trademark. Rather, it involves multiple sellers of the exact same type of product allegedly infringing on one seller’s design patent. The essence of the dispute here is not infringement en masse but rather instances of infringement by distinct competitors. In other words, this case is far more like AF Holdings’s game of blackjack than Bose’s game of “whack-a-mole.” To construe this set of circumstances as a cooperative occurrence like that in Bose is inaccurate. The ruling in Bose was also informed by the fact that none of the counterfeiters would likely appear, such that if the Court severed the defendants, the way in which Bose’s claims would be litigated or managed was unlikely to change. Id. Indeed, Bose caveated that should any defendant appear and distinguish itself from the “swarm,” the Court would sever that defendant in the interest of fairness. Id. Here, Yummy Makeup and Wings of Esa have appeared, are defending the case in earnest, and for the reasons stated, are not properly joined with the other remaining defendants. In sum, Plaintiff’s allegations are insufficient to show that his claims against Yummy Makeup and Wings of Esa arise out of the same transaction, occurrence, or series of transactions or occurrences as his claims against the other defendants. As such, joinder is not proper as to Yummy Makeup and Wings of Esa, and the Court need not consider whether the AIA’s other requirements are satisfied. 6 Case: 1:23-cv-04587 Document #: 88 Filed: 01/04/24 Page 7 of 7 PageID #:423 Conclusion For the foregoing reasons, the Court grants Yummy Makeup and Wings of Esa’s motion to dismiss as to joinder and dismisses the case against those two defendants without prejudice. ENTERED: ______________________________ Honorable Thomas M. Durkin United States District Judge Dated: January 4, 2024 7
=== Roblox Corp. v. Bigfinz ===
Case: 1:23-cv-05346 Document #: 85 Filed: 11/29/23 Page 1 of 5 PageID #:1970 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ROBLOX CORPORATION, Plaintiff, No. 23 C 5346 v. BIGFINZ, Defendant. Judge Thomas M. Durkin MEMORANDUM OPINION AND ORDER Defendant Bigfinz has moved to dismiss for lack of personal jurisdiction. In support of personal jurisdiction, Plaintiff Roblox relies on case law finding personal jurisdiction over online retailers. See Illinois v. Hemi Grp. LLC, 622 F.3d 754 (7th Cir. 2009); Curry v. Revolution Labs., LLC, 949 F.3d at 385 (7th Cir. 2020). But in both Hemi and Curry, the defendants actually sold products in Illinois. Here, none of Bigfinz’s t-shirts were sold in Illinois. Roblox merely shows that it is possible to purchase Bigfinz’s t-shirts and have them shipped to Illinois. See R. 79-1. Courts in this District, however, agree that in infringement cases like this the online retailer generally must have sold at least one product in Illinois for personal jurisdiction to exist here. See, e.g., Sun Chenyan v. The P’Ships, 2021 WL 1812888, at *5 (N.D. Ill. May 6, 2021) (“Finding specific personal jurisdiction here would likely give rise to universal personal jurisdiction because users from across the country, except those from a handful of places, could purchase from the eBay Stores.”); Rubik’s Brand, Ltd. v. Partnerships, 2021 WL 825668, at *4 (N.D. Ill. Mar. 4, 2021) (“That an Illinoisan Case: 1:23-cv-05346 Document #: 85 Filed: 11/29/23 Page 2 of 5 PageID #:1971 might someday find [the defendant’s] website and decide to purchase a counterfeit Rubik’s product from the site simply does not suffice to vest the Court with personal jurisdiction over [the defendant].”); MSM Design & Eng’g LLC v. Partnerships, 2021 WL 3187706, at *3 (N.D. Ill. July 28, 2021) (“Recent decisions from this District have amplified that the mere possibility a product could be ordered online and shipped to Illinois is not, by itself, sufficient to form minimum contacts with this forum.”). It is possible that a defendant may have minimum contacts with Illinois other than through sales, but Plaintiff does not contend that is true for Bigfinz. Because Bigfinz has never sold a t-shirt in Illinois and has no other contacts with Illinois, the Court does not have personal jurisdiction over Bigfinz, and Bigfinz’s motion to dismiss is granted. Bigfinz also seeks attorney’s fees as a prevailing party pursuant to 15 U.S.C. § 1117 (“The court in exceptional cases may award reasonable attorney fees to the prevailing party.”). Bigfinz argues that this is an “exceptional case” because Roblox “has cobbled together 250+ unrelated defendants, proceeded under seal to hide from defendants the nature of the allegations against each individual defendant, and then used injunctions granted based on misleading presentations to hold hostage Defendant’s PayPal account in an effort to exact unreasonable settlement payments.” R. 59 at 9. Whether or not Roblox’s conduct meets the standard under 15 U.S.C. § 1117, the Court has the power to sanction conduct that “unreasonably and vexatiously . . . multiplies the proceedings.” 28 U.S.C. § 1927. Furthermore, the Court has 2 Case: 1:23-cv-05346 Document #: 85 Filed: 11/29/23 Page 3 of 5 PageID #:1972 “inherent authority to manage judicial proceedings and to regulate the conduct of those appearing before it, and pursuant to that authority may impose appropriate sanctions to penalize and discourage misconduct.” Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 776 (7th Cir. 2016). Whether pursuant to § 1927 or the Court’s inherent authority, sanctions are only appropriate upon a finding of bad faith. See Ebmeyer v. Brock, 11 F.4th 537, 546 (7th Cir. 2021); 4SEMO.com Inc. v. S. Illinois Storm Shelters, Inc., 939 F.3d 905, 913 (7th Cir. 2019). “Objective bad faith consists of reckless indifference to the law: pursu[ing] a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound.” 4SEMO, 939 F.3d at 913. The Court finds that Roblox multiplied the proceedings of this case in bad faith. Roblox’s complaint and motions for injunctive relief are premised on the allegations that the defendants are located outside the United States and would “destr[oy] relevant documentary evidence and [hide] or transfer[] assets to foreign jurisdictions.” See R. 6 at 1. Roblox also alleged that, “Upon information and belief, Defendants maintain off-shore bank accounts and regularly move funds from their Amazon accounts to off-shore bank accounts outside the jurisdiction of this Court.” See R. 11-1. But as early as September 19, 2023 when Bigfinz’s counsel communicated by email with Roblox’s counsel, Roblox learned that Bigfinz was located in Florida and has sold only $201.50 worth of the allegedly infringing t-shirts. Having learned this information, Roblox should have understood that none of the concerns Roblox 3 Case: 1:23-cv-05346 Document #: 85 Filed: 11/29/23 Page 4 of 5 PageID #:1973 articulated in its complaint, motion to seal, and motion for a temporary restraining order were relevant to Bigfinz. Yet, rather than resolving what the Court presumes are plausible allegations of infringement for the minimal amount of money at issue, Roblox did the following: filed a motion for default and opposed the motion to vacate default; opposed this motion to dismiss; and opposed lifting of the restraining order on Bigfinz’s funds that were far in excess of the $201.50 at issue here. These actions were unreasonable considering the small amount of money at issue and the fact that Bigfinz does not pose any of the concerns Roblox articulated at the beginning of this case. Roblox never clearly articulated to the Court that Bigfinz was not the type of defendant Roblox described in its complaint and motions. These failures unnecessarily and unreasonably multiplied the proceedings against Bigfinz. In this case, and the hundreds like it routinely filed in this District, plaintiffs join dozens or even hundreds of defendants in a single case, saving themselves thousands of dollars in filing fees. Many judges in this District permit this form of filing because—for the reasons Roblox articulated in its complaint, motion to seal, and motion for a temporary restraining order—it is the most efficient way to address the epidemic of counterfeit goods being sold in the United States on the internet by defendants located outside the United States. But by filing a complaint with many defendants, plaintiff’s counsel assumes the responsibility to vigilantly and scrupulously monitor the case for defendants that do not fit the allegations and to promptly take appropriate action when such facts come to light. Roblox failed to do that here. This failure cost Bigfinz money in attorney’s fees it should not have had to 4 Case: 1:23-cv-05346 Document #: 85 Filed: 11/29/23 Page 5 of 5 PageID #:1974 expend, so a sanction is appropriate here. Roblox is ordered to pay Bigfinz’s attorney’s fees for: (1) preparing the motion to vacate default and reply; (2) the motion to dismiss and reply; and (3) for appearing at hearings on October 26, 2023 and November 8, 2023. Conclusion Therefore, Bigfinz’s motion [59] is granted in accordance with this order. Roblox’s claims against Bigfinz are dismissed. ENTERED: ______________________________ Honorable Thomas M. Durkin United States District Judge Dated: November 29, 2023 5
=== Sample Civil Questionnaire 1 ===
[Used in a Fourth Amendment case] CONFIDENTIAL QUESTIONNAIRE FOR PROSPECTIVE JURORS Name:_______________________________________ Age:_______ Are you a U.S. Citizen? ____ [This trial is expected to last X weeks. If the length of the trial would cause a significant, unavoidable hardship, please explain in detail the nature of the hardship. You should understand that simple inconvenience is not grounds for disqualification from jury duty] [for use with trials longer than 1 week] ___________________________________________________________________________________ 1. List all cities or suburbs where you have lived for the last ten years (if Chicago, please identify what part of Chicago, for example, South Side, Rogers Park, etc.): __________________________________ 2. Do you own your home or rent it? _____________________________________________________ 3. Have you or a close relative ever served in the military? If so explain. ________________________ 4. Your level of education/degrees, and where obtained: _____________________________________ 5. What is your current occupation and employer, and how long have you worked there? ___________________________________________________________________________________ 6. What other jobs and employers have you had during your working life? _______________________ ___________________________________________________________________________________ 7. Please provide employment information for your spouse or any others who live with you, and any adult children (even if not living with you): ________________________________________________ 8. Do you regularly read any magazines or newspapers (whether in print or online)? If so, what are they? _______________________________________________________________________________ 9. Do you regularly watch or listen to television or radio news programs? If so, who are your favorite hosts? ______________________________________________________________________________ 10. What are your hobbies? _____________________________________________________________ 11. What social, civic, religious, profession, or other organizations do you or have you participated in? What is or was your role in the organization? If you no longer participate, why? ___________________ ___________________________________________________________________________________ 12. Are you acquainted with any of the following individuals: [NAME PARTIES] If so, please state the nature and extent of your relationship. _____________________________________________________ ___________________________________________________________________________________ 13. Do you know or have you ever had any dealings with the following law firms or attorneys: [NAME FIRMS and LAWYERS]? ______________________________________________________________ 14. Have you, your friends or family members worked for the [DEFENDANT] or any other governmental entity (state, federal, city or county)? If yes, please identify your relationship to that person. What was their position? _________________________________________________________ ___________________________________________________________________________________ 15. Are any of your close family members or friends lawyers? If so, what type of law do they practice? ___________________________________________________________________________________ 16. Do you have any friends or family members who are police officers? If so, is there anything about your relationship with that person which would impact your ability to judge a police officer’s actions in this case? ___________________________________________________________________________ Continued on the Reverse Side>>> 17. Do you belong to or support any organization, which favors changing the law in order to limit an injured victim’s right to recover? If so, what organization(s)? _________________________________ CONFIDENTIAL 18. Have you or any close family had any interactions with police on a professional level? If so, please explain, including whether that interaction positive, negative, or neutral? _________________________ ___________________________________________________________________________________ 19. Do you have any feelings or opinions regarding law enforcement or police officers that could affect your ability to be fair to all parties in this case? If yes, please explain. ____________________________ ___________________________________________________________________________________ 20. Have you or a close friend or close relative ever been arrested, charged with a crime, or convicted of a crime? Please provide details, and state whether that fact would affect your ability to be fair to either side in the case. Follow-up questions can take place outside the presence of other jurors, if you prefer. ___________________________________________________________________________________ 21. Have you or a close friend or close relative even been the victim of a crime? If yes, please explain. _ 22. Have your or a close friend or close relative ever witnessed a crime? If yes, you will be asked to explain during later questioning. _________________________________________________________ 23. Do you have any philosophical or religious beliefs that would prevent you from sitting in judgment of another person? ______________________________________________________________________ 24. Do you watch any TV programs or Internet programs or shows about police investigations or the court system? If so, which programs? _____________________________________________________ 25. Have you or a close friend or member of your family ever applied for a job with or worked for a police department, law enforcement agency, or security related business? _________________________ ___________________________________________________________________________________ 26. Have you ever studied criminal justice or taken any law enforcement trainings or classes? ___________________________________________________________________________________ 27. Do you or any of your close family members or friends belong to or work with any neighborhood watch groups or any groups that focus on crime prevention or enforcement of the law? ______________ 28. A law enforcement officer’s testimony is not entitled to any greater or lesser weight, simply because they are law enforcement officers, than any other witness. In general, would you be inclined to give greater, lesser, or the same weight to the testimony of a law enforcement officer than you would to an ordinary citizen? ______________________________________________________________________ 29. Do you believe that people should have the right to sue police officers and be awarded monetary compensation if the evidence shows that their rights have been violated by police officers? ___________ 30. Are you willing to fully compensate the plaintiffs for the damages requested if the evidence shows that the plaintiffs’ rights have been violated, and will you base any award of damages on the evidence in this case and not on sympathy? __________________________________________________________ 31. Similarly, if Plaintiffs fail to prove the things they are required to prove under the law, can you put any feelings of sympathy aside and send the Plaintiffs away with no money? ______________________ ___________________________________________________________________________________ 32. Have you or any of your family or close friends ever been involved in a lawsuit? If so, what was the nature of the lawsuit and your involvement if any? Were you satisfied with the outcome? ____________ ___________________________________________________________________________________ 33. Have you or a family member ever testified in court, or in a deposition? ______________________ 34. Have you ever served on a jury before? If so, what type of case was it? Did you reach a verdict? Were you the foreperson for that jury? ____________________________________________________ 35. Are there any facts or circumstances you believe that the court or the parties should know that might affect your ability to serve as a fair and impartial juror in this case? ___________________________________________________________________________________ CONFIDENTIAL
=== Sample Civil Questionnaire 2 ===
[Used in an Employment Discrimination case] CONFIDENTIAL QUESTIONNAIRE FOR PROSPECTIVE JURORS Name: __________________________________________ Age: ___________________ Are you a U.S. Citizen? ____ [This trial is expected to last X weeks. If the length of the trial would cause a significant, unavoidable hardship, please explain in detail the nature of the hardship. You should understand that simple inconvenience is not grounds for disqualification from jury duty.] [for use with trials longer than 1 week] ____________________________________________________________________ 1. List all cities or suburbs where you have lived for the last ten years (if Chicago, please identify what part of Chicago, for example, South Side, Rogers Park, etc.): ___________________________________ 2. Do you own your home or rent it?: ____________________________________________________ 3. What is your level of education, degrees earned, and where obtained?: ________________________ 4. What is your current occupation and employer, and how long have you worked there? ___________ 5. What other jobs and employers have you had during your adult working life? __________________ ____________________________________________________________________________________ 6. Please provide employment information for your spouse and others who live with you, and any adult children (even if not living with you). ____________________________________________________ 7. Have you ever managed or supervised and/or hired or fired other employees? If yes, please explain, and state whether you have taken part in an investigation of any employee for misconduct. If yes, did you ever have to fire someone for lying or covering up a lie? _______________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ 8. Have you ever been terminated from a job? If yes, please explain. Do you believe the termination was improper? How did the termination affect you? __________________________________________ ____________________________________________________________________________________ 9. Have you, a close friend, or a family member ever been involved in a lawsuit? If so, what was the nature of the lawsuit and your (his or her) involvement? _______________________________________ ____________________________________________________________________________________ 10. Have you, a close friend, or a family member ever been accused by a co-worker of harassment or discrimination in the workplace? Please explain. ____________________________________________ ____________________________________________________________________________________ 11. Have you, a close friend, or a family member ever complained of unfair employment practices either internally to the employer or through a government agency, such as the Illinois Department of Human Rights or the Equal Employment Opportunity Commission? If yes, what was the basis of the complaint? Were you satisfied with the outcome? _____________________________________________________ ____________________________________________________________________________________ 12. Have you been accused of misconduct or error at work that resulted in an investigation? If yes, please explain. Do you believe the investigation was fair and objective? Were you satisfied with the outcome? ____________________________________________________________________________________ Continued on back >>> CONFIDENTIAL 13. Do any of your past or present employers have anti-harassment/discrimination policies? If yes, what kind of training did you receive regarding these policies? ______________________________________ ____________________________________________________________________________________ 14. Have you ever worked in what you considered to be a male or female dominated workplace? If yes, please explain. Did you observe women or men being treated differently than each other in this environment? ________________________________________________________________________ 15. How often do you read, listen, or watch the news? Where do you get your news? _______________ 16. Have you ever commented in writing, such as online or in a letter to the editor, regarding news stories you feel strongly about? If yes, please give the most recent examples. ____________________________ ____________________________________________________________________________________ 17. Do you like watching TV shows or movies about police investigations or the legal system? _______ Which shows do you most enjoy? ________________________________________________________ 18. What civic groups or organizations do you belong to or participate in? ________________________ 19. Do you hold any religious, philosophical, moral or other beliefs that would make it difficult for you to judge the conduct of another person? ______________________________________________________ 20. Do you have any friends of family members who are or have ever been employed by a police department or law enforcement agency? If so, is there anything about your relationship with that person which would impact your ability to judge a police officer’s actions in this case? ____________________ ____________________________________________________________________________________ 21. Have you, a close friend, or a family member ever been arrested, charged with or convicted of a crime, or had any other encounter or involvement with a member of law enforcement other than a traffic offense? If yes, please state: (1) the individual’s relationship to you; (2) the nature of the circumstance; and (3) the disposition of any charge. Would this fact affect your ability to be fair to either side in the case? _______________________________________________________________________________ 22. If you answered yes to question 21, please state whether that experience left you with any feelings or opinions regarding law enforcement or police officers that could affect your ability to be fair to all parties in this case? If yes, you will be asked to explain during later questioning. _________________________ 23. This trial involves alleged claim of harassment, discrimination, and retaliation that includes testimony by both sides about the use of profanity and conduct of a sexual nature. Will this kind of testimony make you uncomfortable? ___________________________________________________________________ 24. Have you ever been in a situation where a supervisor was abusing their power? If yes, please explain. ____________________________________________________________________________________ 25. Have you even been in a situation where a subordinate or coworker made untrue statements about working conditions to try to protect their job, or to try to cover up the fact that they violated work policy? If yes, please explain. __________________________________________________________________ ____________________________________________________________________________________ 26. If plaintiff proves that defendants intentionally discriminated against her, would you have any reservations about awarding her punitive damages—i.e., damages intended to punish the defendants for their conduct? Conversely, if plaintiff does not prove that punishment is warranted, could you find for plaintiff without awarding such damages? __________________________________________________ 27. Are there any facts or circumstances you believe that the court or the parties should know that might affect your ability to serve as a fair and impartial juror in this case? ______________________________ CONFIDENTIAL
=== Sample Criminal Questionnaire ===
QUESTIONNAIRE FOR PROSPECTIVE JURORS Juror Name (Last, First) _____________________________________ Age ___________ Are you a U.S. citizen? _______ 1. List all cities or suburbs where you have lived for the last ten years with the current location first (if Chicago, identify what part, for example, South Side, Rogers Park, etc.). Do not provide your address. _________________________ _____________________________________________________________________________________________ 2. Describe your level of education, what degrees you have, and where from. __________________________________ 3. Describe your current occupation generally (e.g., teacher, nurse, etc.), where you work, and number of years employed (if you are retired, please give information about your last occupation). ____________________________________ _____________________________________________________________________________________________ 4. What other jobs have you had during your working life? ________________________________________________ 5. List the occupations of your significant other (if applicable) and any others who live with you, as well as adult children (even if not living with you). ______________________________________________________________________ _____________________________________________________________________________________________ 6. What is your primary source of news? ______________________________________________________________ 7. What television programs, podcasts, radio shows, newspapers, magazines, or websites do you watch, listen to, and/or read regularly? _________________________________________________________________________________ 8. What are your hobbies? _________________________________________________________________________ 9. List any organizations and/or social media groups you belong to or participate in (union, professional, religious, social, fraternal, recreational, political, etc.). _______________________________________________________________ 10. Have you ever been employed as a lawyer, by a lawyer or law firm, in the criminal justice system, or by a law enforcement agency? ____________________________________________________________________________ 11. Do you have a relative or close friend who is a prosecutor or a criminal defense attorney? If so, state your relationship to that person and whether anything about that relationship has left you with a positive or negative impression of the judicial system, prosecutors, and defense attorneys. ____________________________________________________ _____________________________________________________________________________________________ 12. Have you, any relatives, or close friends ever worked for a governmental entity (state, federal, city or county)? If yes, state your relationship to that person and their employer and position(s). ___________________________________ _____________________________________________________________________________________________ 13. Have you, a family member, or a close friend ever filed a claim or case against or had a legal dispute with the federal government? If yes, describe the person’s relationship to you, the agency involved, the nature of the dispute, and what happened. _____________________________________________________________________________________ _____________________________________________________________________________________________ 14. Other than a traffic ticket, have you, a family member, or a close friend ever been arrested for, charged with, or convicted of a crime? If yes, describe the nature of the offense; the person’s relationship to you; the law enforcement organization(s) and the prosecutor’s office involved; what happened in the case; and whether that experience might make it difficult for you to fairly and impartially evaluate the evidence and render a fair verdict in this case. _______ _____________________________________________________________________________________________ _____________________________________________________________________________________________ 15. Have you, a relative, or close friend ever been a victim of a crime? If yes, describe the victim’s relationship to you, the nature of the incident and when it occurred, whether charges were brought and what happened (e.g., imprisonment, Page 1 of 2 probation, acquittal, etc.), and whether that experience would make it difficult for you to fairly and impartially evaluate the evidence and render a fair verdict in this case. _____________________________________________________ _____________________________________________________________________________________________ 16. Have you ever appeared as a witness in a criminal case? If yes, state when and where you testified and the nature of your testimony. ________________________________________________________________________________ _____________________________________________________________________________________________ 17. Have you ever served on a jury before? If yes, state the nature of the case, whether you were the foreperson, whether the jury reached a verdict, and whether that experience left you with any impression of the judicial system, judges, or attorneys that might make it difficult for you to fairly and impartially evaluate the evidence and render a fair verdict in this case. _____________________________________________________________________________________ _____________________________________________________________________________________________ 18. The charges are described in the cover letter. Is there anything about the nature of the charges that might affect your ability to fairly decide this case on the evidence without being partial to either side? __________________________ _____________________________________________________________________________________________ 19. Is there anything about the allegation that the defendant was previously convicted of committing a felony that might affect your ability to fairly decide the case on the evidence without being partial to either side? _________________ _____________________________________________________________________________________________ 20. Do you have any strong feelings regarding firearms which would prevent you from being able to fairly decide this case on the evidence without being partial to either side? Do you belong to any firearms-related organizations?_________ _____________________________________________________________________________________________ 21. At various times, the Court will instruct you about the applicable law. It is your obligation to follow those instructions, whether you agree with the law or not. If you were to find that you disagreed with the law as given to you, could you follow that law and reach a verdict by applying that law to the evidence? __________________________________ _____________________________________________________________________________________________ 22. This case involves an investigation by the [law enforcement agency]. Do you have any feelings or experiences regarding [law enforcement agency] or any other law enforcement agency that might affect your ability to fairly decide this case on the evidence without being partial to either side? ____________________________________________ _____________________________________________________________________________________________ 23. A law enforcement officer’s testimony is not entitled to any greater or lesser weight, simply because he or she is a law enforcement officer, than any other witness. Would you credit the testimony of a law enforcement officer any more or less than any other witness because that witness works in law enforcement? ________________________________ _____________________________________________________________________________________________ 24. The defendant is presumed to be innocent of the charges against him. Do you understand and will you follow this principle? _____________________________________________________________________________________ 25. The government carries the burden of proving guilt beyond a reasonable doubt. The burden never shifts to the defendant, and the defendant is not required to offer any evidence in his defense. Do you understand and will you follow this principle? ____________________________________________________________________________ 26. A defendant has an absolute and constitutional right not to testify. The fact that a defendant decides not to testify cannot be held against him. Do you understand and will you follow this principle? _________________________________ 27. Do you hold any religious, philosophical, moral, or other beliefs that might make it difficult for you to sit in judgment of another person? ______________________________________________________________________________ 28. Is there anything that we have not asked about that you think might be important for us to know about your ability to serve as a fair and impartial juror in this case? ________________________________________________________ Page 2 of 2
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