FCA US LLC v. The Partnerships and Unincorporated Associations Identified on Schedule A

CERTIFICATE of Service by Plaintiff FCA US LLC regarding order on motion for entry of default,,,,,,,,,,,,,, order on motion for default judgment,,,,,,,,,,,,,, text entry,,,,,,,,,,,,, 72 (Attachments: # 1 Exhibit A)(Lakovitsky, Berel) (Entered: 09/26/2024)

MINUTE entry before the Honorable John F. Kness: Before the Court is Plaintiff's motion 68 for entry of default and default judgment against all Defendants except Shinny Mermaid. All remaining Defendants (except Shinny Mermaid) have failed either to plead or to otherwise appear to defend against this action. Accordingly, default is entered under Rule 55(a) of the Federal Rules of Civil Procedure. Plaintiff must serve this minute order upon all remaining Defendants within two business days of its entry on the docket and must file proof of service within three business days of service being effected. Plaintiff's request for default judgment is entered and continued and will not be resolved so long as at least one other Defendant has appeared and is participating in the case. That decision is based on at least two reasons: first, Plaintiff has not addressed Rule 54(b), which provides that "when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay." See Muskegan Hotels, LLC v. Patel, 986 F.3d 692, 696-97 (7th Cir. 2021). Second, it is doubtful that Plaintiff could meet the standard of Rule 54(b) even if it had addressed that provision. Joinder of multiple Defendants in so-called "Schedule A" cases is premised on those entities being "interrelated" (Dkt. 1 at 18) and the "interworking of their counterfeiting operation." (Id. at 2.) Where claims are factually and legally intertwined, as they are here by Plaintiff's own assertions, entry of a partial final judgment is not warranted. See Peerless Network, Inc. v. MCI Commc'ns Servs., Inc., 917 F.3d 538, 543 (7th Cir. 2019) (district court erred by entering partial final judgment on claims that were "factually and legally intertwined" with still-pending claims). It is true that Plaintiff seeks to have Defendant Shinny Mermaid severed (see Dkt. 58 ), and if that happens, entry of a final judgment might then be warranted. But the motion to sever remains pending and will be addressed at a hearing set for 10/23/2024. Whether the motion to sever has merit has thus not yet been assessed. In any event, Plaintiff persists in its view that the joinder of all Defendants here was and remains proper (see Dkt. 58 at 1), which serves only to reinforce the Court's view that partial final judgment is not warranted. See Peerless Network, 917 F.3d at 543. Schedule A plaintiffs and the Schedule A bar have chosen the approach of persuading judges in this District, including this judge, to join large numbers of Defendants in single cases based on assertions of interrelated and coordinated activity; they must live with the consequences of that approach, even when those consequences become less favorable as the litigation goals of plaintiffs and counsel evolve from victory on the merits to collecting on a final judgment. Plaintiff must therefore either wait for the case to play out in full to obtain its requested judgment or find another way to resolve its dispute with Shinny Mermaid. Mailed notice. (exr, ) (Entered: 09/26/2024)

MEMORANDUM by FCA US LLC in support of motion for entry of default, motion for default judgment 68 (Attachments: # 1 Exhibit 1)(Halpern, Kahlia) (Entered: 09/23/2024)

MOTION by Plaintiff FCA US LLC for entry of default, MOTION by Plaintiff FCA US LLC for default judgment as to all Defendants with the exception of a certain Defendant (Attachments: # 1 Exhibit A)(Halpern, Kahlia) (Entered: 09/23/2024)

MEMORANDUM by Shinny Mermaid in Opposition to motion for preliminary injunction 32 (Berkowitz, Mark) (Entered: 07/26/2024)

MEMORANDUM by FCA US LLC in support of motion for preliminary injunction 32 (Attachments: # 1 Declaration of Kahlia R. Halpern, # 2 Exhibit 1)(Halpern, Kahlia) (Entered: 07/15/2024)

MOTION by Plaintiff FCA US LLC for preliminary injunction as to certain Defendants (Attachments: # 1 Exhibit A)(Halpern, Kahlia) (Entered: 07/15/2024)

EXTENSION OF TEMPORARY RESTRAINING ORDER signed by the Honorable John F. Kness on 7/3/2024. (exr, ) (Entered: 07/03/2024)

MINUTE entry before the Honorable John F. Kness: Plaintiff's Motion to extend TRO 24 is granted. Enter separate order. Mailed notice. (exr, ) (Entered: 07/03/2024)

MOTION by Plaintiff FCA US LLC for extension of time of Temporary Restraining Order (Halpern, Kahlia) (Entered: 07/01/2024)

SEALED TEMPORARY RESTRAINING ORDER signed by the Honorable John F. Kness on 6/20/2024. (exr, ) (Entered: 06/20/2024)

MINUTE entry before the Honorable John F. Kness: Plaintiff's motion for leave to file under seal 3, motion for electronic service of process 16, and ex parte motion for a temporary restraining order 11 are granted in part. Plaintiff's submissions (e.g., Dkts. 1118) establish that, were Defendants to learn of these proceedings before the execution of Plaintiff's requested preliminary injunctive relief, there is a significant risk that Defendants could destroy relevant documentary evidence and hide or transfer assets beyond the reach of the Court. Accordingly, subject to unsealing at an appropriate time, Plaintiff may for now file under seal the documents identified in the motion to seal and appearing at docket entries 2 and 15 . The Temporary Restraining Order being entered along with this minute order shall also be placed under seal. In addition, for the purpose of the motions cited above, Plaintiff's filings support proceeding (for the time being) on an ex parte basis under FRCP 65(b)(1). Specifically, and as noted above, were Defendants to be informed of this proceeding before a TRO could issue, it is likely assets and websites would be redirected, thus defeating Plaintiff's interests in identifying Defendants, stopping Defendants' infringing conduct, and obtaining the equitable accounting that, at this point, Plaintiff states that he may pursue. These facts justify, among other relief, the imposition of a prejudgment asset restraint against Defendants in an amount not to exceed $50,000 per separate account. In addition, the Court finds, at least for now on this limited and one-sided record and without prejudice to revisiting the issue, that it has personal jurisdiction over Defendants because they directly target their business activities toward consumers in the United States, including Illinois. Specifically, Defendants have targeted sales to Illinois residents by setting up and operating e-commerce stores that target United States consumers using one or more Seller Aliases, offer shipping to the United States, including Illinois, accept payment in U.S. dollars, and have sold products using infringing versions of Plaintiff's copyrighted works to residents of Illinois. The evidence presented to the Court also shows that Plaintiff has demonstrated a likelihood of success on the merits (including evidence of active infringement and sales into Illinois), that the harm to Plaintiff is irreparable, and that an injunction is in the public interest. An injunction serves the public interest because of the consumer confusion caused by infringing goods, and there is no countervailing harm to Defendants from an order directing them to stop infringement. Electronic service of process does not violate any treaty and is consistent with due process because it effectively communicates the pendency of this action to Defendants. As several judges have previously noted, there may be reason to question both the propriety of joining all Defendants in this one action and whether Plaintiff will pursue an accounting (which Plaintiff asserts as justification for an asset freeze), but at this preliminary stage, the Court is persuaded that Plaintiff has provided sufficient evidence of coordinated activity and the prospect of an accounting to justify the requested relief as to all Defendants. Expedited discovery is warranted to identify Defendants and to implement the asset freeze. If any Defendant appears and objects, the Court will reconsider the asset freeze and joinder. Enter sealed Temporary Restraining Order. (exr, ) (Entered: 06/20/2024)

MEMORANDUM by FCA US LLC in support of motion for temporary restraining order 11 (Gaudio, Justin) (Entered: 05/09/2024)

MOTION by Plaintiff FCA US LLC for temporary restraining order including a Temporary Injunction, a Temporary Asset Restraint, and Expedited Discovery (Gaudio, Justin) (Entered: 05/09/2024)