Case 0:24-cv-61997-AHS Document 9 Entered on FLSD Docket 11/08/2024 Page 1 of 15

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

DIFOLD INC.,

Plaintiff,
v.
Case No.: 24-cv-61997-AHS
THE INDIVIDUALS, CORPORATIONS,
LIMITED LIABILITY COMPANIES,
PARTNERSHIPS, AND
UNINCORPORATED ASSOCIATIONS
IDENTIFIED ON SCHEDULE A,

Defendants.

PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE

AND MEMORANDUM OF LAW ESTABLISHING THAT JOINDER IS PROPER

Plaintiff, DIFOLD INC., by undersigned counsel, hereby responds to this Court’s October

30, 2024, Order [ECF No. 8], and states:

MEMORANDUM OF LAW

I. INTRODUCTION

This action has been filed by Plaintiff to combat e-commerce store operators who trade

upon Plaintiff’s reputation and goodwill by offering for sale and/or selling unauthorized and

unlicensed products infringing on Plaintiff’s DiFOLD Patents which are covered by U.S. Patent

Nos. D1,002,386 and D935,892, Compl. [DE 1] at ¶ 1 (the “Infringing Products”). As part of a

coordinated effort to sell Infringing Products, Defendants operate under Internet based e-

commerce stores and fully interactive commercial internet stores operating under the online

marketplace accounts identified in Schedule A to the Complaint (the “Defendant Internet Stores”),

Compl. [ECF No. 1] at ¶ 3, and use these Defendant Internet Stores, as well as other unknown

aliases, to conceal their identities and further their infringing efforts, id. at ¶¶ 18 – 40. Defendants
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take advantage of this anonymity, as well as the mass reach afforded by the Internet and the cover

afforded by international borders, to violate Plaintiff’s patent rights and exploit U.S. consumers.

Plaintiff faces a “swarm of attacks” on its intellectual property rights, and “filing individual

causes of action against each counterfeiter ignores the form of harm” that Plaintiff faces. Bose

Corp. v. P’ships & Unincorporated Ass’ns Identified on Schedule “A”, 334 F.R.D. 511, 517 (N.D.

Ill. 2020). Joinder is proper because Fed. R. Civ. P. 20’s inclusion of the term “occurrence” allows

a plaintiff to join in a single case the defendants who commonly participate in such unlawful

occurrences. Id.; see also TWOWS, LLC v. The Individuals, 2023 WL 2837693, at *2 (M.D. Fla.

Apr. 7, 2023) (“Joinder is proper because Plaintiff's claims against these Defendants ‘arise out of

the same transaction or occurrence’ because Plaintiff has alleged a logical connection between

each Defendant, namely the ‘occurrence of mass harm’ resulting from Defendants concerted

efforts to anonymously commit copyright infringement through the online platforms.”); see also

Chrome Cherry Limited v. Partnerships and Unincorporated Associations Identified on Schedule

“A”, 2021 WL 6752296, at *1 (N.D. Ill. Oct. 20, 2021) (“the Court finds that although Plaintiff

has not sufficiently demonstrated that the asserted claims arise out of the same transaction or series

of transactions, Plaintiff has sufficiently demonstrated that they arise out of the same occurrence

or series of occurrences. Therefore, joinder of the ‘Schedule A’ Defendants is proper at this

preliminary stage. Fed. R. Civ. P. 20(a)(2)(A). The Court additionally notes that no Defendants

are prejudiced by permitting joinder at this juncture.”); see also Oakley, Inc. v. The Partnerships,

et al., Case No. 1:20-cv-05972 (N.D. Ill. Nov. 9, 2020) (unpublished) (ECF No. 27) (same); Loewe

S.A., Inc. v. The Partnerships and Unincorporated Associations Identified on Schedule “A”, Cse

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No. 1:20-cv-07185 (N.D. Ill. Dec. 18, 2020) (ECF No. 26) (same). 1

The well-pleaded allegations in Plaintiff’s Complaint establish that Defendants are

working in a similar manner to sell Infringing Products, as part of the same “occurrence” of mass

harm, i.e., the swarm of all Defendants attacking Plaintiff’s federally registered patents at once.

Bose Corp., 334 F.R.D. at 516. As demonstrated throughout this memorandum, the majority of

district courts agree that this establishes a logical relationship supporting joinder. Joinder at this

stage is consistent with hundreds of factually similar cases and comports with the strongly

encouraged policy of “entertaining the broadest possible scope of action consistent with fairness

to the parties.” See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). 2

Cases like this action have proven effective at substantially reducing online counterfeiting

and infringement and preventing consumer confusion. Indeed, the gravity of these cases was

1
Recently, the Fifth Circuit Court of Appeals has also found joinder proper in similar cases
involving “Schedule A” defendants. See Viahart, L.L.C. v. GangPeng, 2022 WL 445161, at *4
(5th Cir. Feb. 14, 2022) (“no basis to find misjoinder” based on allegations that “the defendants
all worked together as an ‘interrelated group’ to knowingly sell counterfeit products” and that the
plaintiff “did not know the full identities of the defendants because they operated to conceal their
identities and the network in which they operated”).
2
Indeed, in the past several years, similar cases have been filed and permitted to proceed
by thirteen (13) district court judges in this district. As recently as a few months ago, joinder of
defendants in a nearly identical patent infringement case against a group of Amazon sellers, was
found to be proper. See Shefit Operating Company, LLC v. The Individuals, Corporations, Limited
Liability Companies, P’ships & Unincoporated Ass’ns Identified on Schedule A, Case No. 0:24-
cv-61310-DSL, Order dated August 15, 2024 (ECF No. 14). Similar cases against multiple e-
commerce store seller aliases have been filed across the country for nearly a decade. See, e.g.
Farouk Systems, Inc. v. Eyou Int’l Trading Co., Ltd., et al., Case No. 4:10 CV 2672 (S.D. Tex.
Aug. 2, 2010); The North Face Apparel Corp., et al. v. Fujian Sharing Import & Export Ltd. Co.,
et al., Case No. 10 CIV 1630 (S.D.N.Y. Mar. 16, 2010); Volvo Car Corporation, et al. v. The
Unincorporated Associations Identified in Schedule A, Case No. 18-cv-00977 (E.D. Va. Feb. 6,
2019); CCA and B, LLC v. Douyong toy, et al., Case No. 19-cv-01851 (N.D. Ga. Apr. 25, 2019);
Talavera Hair Products, Inc. v. Taizhou Yunsung Elec. Appliance Co., Ltd., et al., Case No. 18-
cv-00823 (S.D. Ca. Apr. 30, 2018), including hundreds of cases in the Southern District of New
York and the Northern District of Illinois.

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addressed by Executive Order 13904, a copy of which is attached hereto as Exhibit 1. “It is the

policy of the United States Government to protect consumers, intellectual property rights holders,

businesses, and workers from counterfeit goods … and other contraband now being introduced

into the United States as a result of the recent growth in e-commerce.” See Executive Order 13904

of January 31, 2020. It is also “the policy of the United States Government to ensure that parcels

containing contraband be kept outside of the United States to the greatest extent possible and

that all parties who participate in the introduction or attempted introduction of such parcels into

the United States be held accountable under the laws of the United States.” Id. (emphasis added).

The Department of Homeland Security (“DHS”) has also weighed in on the systematic

counterfeit activities that are now rampant throughout online platforms. See January 24, 2020,

report titled Combating Trafficking in Counterfeit and Pirated Goods prepared by the U.S.

Department of Homeland Security, Office of Strategy, Policy & Plans (“Homeland Security

Report”), a copy of which is attached hereto as Exhibit 2.

Specifically, DHS reported that “American consumers shopping on e-commerce platforms

and online third-party marketplaces now face a significant risk of purchasing counterfeit or pirated

goods.” Homeland Security Report at p. 7. The Acting Secretary stated as follows:

The rapid growth of e-commerce has revolutionized the way goods are bought and
sold, allowing for counterfeit and pirated goods to flood our borders and penetrate
our communities and homes. Illicit goods trafficked to American consumers by e-
commerce platforms and online third-party marketplaces threaten public health and
safety, as well as national security. This illicit activity impacts American
innovation and erodes the competitiveness of U.S. manufacturers and workers.
Id.at p. 3. Similar to DHS, the Organisation for Economic Cooperation and Development

(“OECD”) reports that “E-commerce platforms represent ideal storefronts for counterfeits and

provide powerful platform[s] for counterfeiters and pirates to engage large numbers of potential

consumers.” See OECD (2018), Governance Frameworks to Counter Illicit Trade, Illicit Trade,

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OECD Publishing, Paris, last viewed November 7, 2024 at https://www.oecd-

ilibrary.org/governance-frameworks-to-counter-illicit-trade_5j8z183xch6h.pdf. The OECD

reports that “international trade in counterfeit and pirated goods amounted to as much as $509

billion in 2016. This represents a 3.3 percent increase from 2013 as a proportion of world trade.”

Homeland Security Report at p. 8. This dramatic increase has been made possible because online

marketplaces can quickly and easily establish authentic looking “store-fronts” to compete with

legitimate businesses.

DHS identified as problematic, the ease through which these counterfeiters can conceal

their identities and relationships between various storefronts:

Platforms generally do not require a seller on a third-party marketplace to

identify the underlying business entity, nor to link one seller profile to other
profiles owned by that same business, or by related businesses and owners. In
addition, the party that appears as the seller on the invoice and the business or
profile that appears on the platform to be the seller, may not always be the same.

This lack of transparency allows one business to have many different profiles
that can appear unrelated. It also allows a business to create and dissolve profiles
with greater ease, which can obfuscate the main mechanism that consumers use to
judge seller credibility, namely reviews by other buyers. Id. at p. 39 (emphasis
added).

The foregoing not only demonstrate the importance of cases like this action which directly

combat online counterfeiting and infringing networks, but more importantly (for purposes of this

Response), demonstrate the extraordinary difficulties patent owners face when attempting to

identify the relationship between various storefronts engaging in the same counterfeiting or

infringing conduct.

II. ARGUMENT

A. Standard for Permissive Joinder Under Fed. R. Civ. P. 20(a)

Under the Federal Rules of Civil Procedure, “the impulse is toward entertaining the

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broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties

and remedies is strongly encouraged.” In re EMC Corp., 677 F.3d 1351, 1358 (Fed. Cir. 2012)

(quoting United Mine Workers v. Gibbs, 383 U.S. 715, 724). Above all, “[j]oinder of parties is

generally encouraged in the interests of judicial economy, subject to fulfillment of two

prerequisites: (1) the persons who are joined as plaintiffs must be interested in claims that arise

out of the same transaction or occurrence, or series of transactions or occurrences; and (2) all the

parties joined must share in common at least one question of law or fact.” Gittens v. School Bd.

Of Lee County., 2018 WL 839242, at *1 (M.D. Fla. Feb. 13, 2018) (citing Alexander v. Fulton

County, 207 F.3d 1303, 1323 (11th Cir. 2000), overruled other grounds, Manders v. Lee, 338 F.3d

1304 (11th Cir. 2003)) (emphasis added).

As to the first prong of Fed. R. Civ. P. 20(a)(2), courts have applied this “transaction or

occurrence” requirement using a “case-by-case approach” based on a “flexib[le] . . . standard [that]

enables the federal courts to promote judicial economy by permitting all reasonably related claims

for relief by or against different parties to be tried in a single proceeding under the provisions of

Rule 20.” See In re EMC Corp., 677 F.3d at 1358 (citing 7 Charles Alan Wright et al., Federal

Practice and Procedure § 1653 (3d ed. 2001)). In analyzing whether parties are properly joined

under Rule 20, “the term ‘transaction’ is a world of flexible meaning that ‘may comprehend a

series of many occurrences, depending not as much upon their immediateness of their connection

as upon their logical connection.’” El Fakih v. Nissan North America, Inc., 2018 WL 4193675, at

*3 (S.D. Fla. July 26, 2018) (quoting Gonzalez v. Batsmasian, 320 F.R.D 580, 581 (S.D. Fla.

2017); Alexander, 207 F.3d at 1323.

As with the word “transaction”, “occurrence” is not defined by Rule 20. However, as

recognized by the court in Bose Corp., 334 F.R.D. at 516, “canons of construction ordinarily

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suggest that terms connected by a disjunctive … be given separate meanings,” and the dictionary

definitions suggest that “occurrence” is much broader than “transaction.” Id. An “occurrence” is

defined as something that simply happens or appears, and is not necessarily the product of joint or

coordinated action. Id. See also Oakley, Inc., Case No. 1:20-cv-05972 (unpublished) (ECF No.

27) (“Plaintiff has sufficiently demonstrated that [the asserted claims] arise out of the same

occurrence or series of occurrences”); Loewe S.A., 1:20-cv-07185 (ECF No. 26) (same); Acushnet

Co. v. Ukgolfbestprice.com, 2014 WL 11474492, at *3 (S.D. Fla. Jan. 31, 2014) (the court

determined that a group of plaintiffs could pursue their claims for violations of the Lanham Act

against fifty separate online retailers in part because the defendants’ websites were a common

source of harm).

“[T]o satisfy the commonality prong for proper joinder, all that is required is that the

plaintiffs share a single common question of law or fact.” El Fakih, 2018 WL 4193675, at *3

(citing Alexander, 207 F.3d at 1324; Beckford v. Dep't of Corrs., Case No. 06–14324–CIV 2008

WL 8192939, at *2 (S.D. Fla. Apr. 29, 2008) (holding the commonality prong satisfied when the

plaintiffs brought their claims under the same statute).

B. Plaintiff’s Well-Pled Allegations Establish the First Prong of Federal Rule 20.

“When assessing whether the requirements of Rule 20(a)(2) are satisfied, the factual

allegations in the plaintiff’s complaint are accepted as true.” Malibu Media LLC v. Does 1-28,

295 F.R.D. 527, 531 (M.D. Fla. 2012) (citing Deskovic v. City of Peekskill, 673 F. Supp. 2d 154,

159 (S.D.N.Y. 2009)). “Rule 20 must be “construed and administered to secure the just, speedy,

and inexpensive determination of every action and proceeding.” Id. (citing Fed. R. Civ. P. 1).

Here, Plaintiff’s well-pleaded allegations establish that the Defendant Internet Stores are

all operating in the same transaction, occurrence, or series of transactions or occurrences and,

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therefore, joinder is proper. The Complaint alleges generally that this action was initiated in order

to combat the harm caused by the combined actions of Defendants and others engaging in similar

conduct. The Complaint further alleges that the Defendant Internet Stores, all of whom are of

individuals and business entities residing in the People’s Republic of China “bear similarities and

indicia of being related to one another, suggesting that the Infringing Products were manufactured

by and come from a common source and that, upon information and belief, Defendants are

interrelated.” Id. at ¶ 32. All of these Defendants have registered the Defendant Internet Stores

with the same online platform for the purpose of engaging in infringing activities. The Complaint

further alleges that the Defendant Internet Stores use “multiple credit card merchant accounts and

PayPal accounts behind layers of payment gateways so that they can continue operation in spite of

Plaintiff’s enforcement efforts,” id. at ¶ 37, and further, that “Defendants maintain off-shore bank

accounts and regularly move funds from their PayPal accounts to off-shore bank accounts outside

the jurisdiction of this Court” to avoid a favorable monetary award to Plaintiff, id. at ¶ 38.

The foregoing allegations are not limited to common facts relating to the similarity of the

infringing products at issue and evidence supporting Plaintiff’s claims (which are more applicable

to the second prong of the Rule 20 inquiry), but more importantly, demonstrate that these

groupings of Defendants are all engaging in the same systematic approach of establishing an

esoteric online storefront to redistribute illegal products from the same or similar sources while

maintaining financial accounts that the Defendant can easily conceal to avoid any real liability for

their actions. In sum, Plaintiff’s specific factual allegations that Defendants are working in a

similar manner to sell Infringing Products collectively in the same “occurrence of mass harm”

show a logical relationship supporting joinder. Bose Corp., 334 F.R.D. at 516. See also Acushnet

Co. v. Ukgolfbestprice.com, 2014 WL 11474492, at *3 (S.D. Fla. Jan. 31, 2014).

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Further, even if Defendants are not directly coordinating, Plaintiff’s allegations establish

that Defendants “take advantage of a set of circumstances – the anonymity and mass reach afforded

by the internet and the cover afforded by international borders – to violate [Plaintiff’s intellectual

property] with impunity.” Id. “[I]t is plausible that Defendants understand that their ability to

profit through anonymous internet stores is enhanced as their numbers increase, even though they

do not engage in direct communication or coordination.” Id. Defendants are alleged to be

infringers, and “want to blend in to cause consumer confusion.” Id. at 514. It is not possible to

link all or clusters of internet stores together using arbitrary commonalities. Homeland Security

Report at p. 39. Based upon commonalities between the different listings, including use of the

same pictures to advertise and sell the same product, Plaintiff believes that the Defendant Internet

Stores identified in the Complaint are operated by the same person or persons. See, e.g., Exhibit

3, which includes sample listings from each Defendant, using the same images to advertise the

same Infringing Product.

The Fifth Circuit Court of Appeals has explained that at this stage of proceedings, it

sufficient to allege that the Defendants are an interrelated group that are concealing their identities.

See Viahart, L.L.C., 2022 WL 445161, at *4. Pursuing linking efforts is extremely difficult if not

impossible without first receiving seller data from the online platforms through which Defendants

attempt to conceal their activities and furthering those efforts through direct discovery to those

Defendants. Such efforts, are not required by Fed. R. Civ. P. 20 to join multiple defendant internet

stores at the pleading stage, especially without the opportunity to conduct meaningful discovery

from a Defendant opposing joinder. 3

3
Plaintiff filed a motion to file Schedule A to the Complaint under seal [ECF No. 5], but the Court
has not yet ruled on the motion. By listing Defendants on a Schedule A, Plaintiff has endeavored
to more specifically identify these Defendants through Schedule A to the Complaint, rather than

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C. Plaintiff’s Well-Pled Allegations Also Establish the Second Prong of Federal

Rule 20.

Plaintiff’s well-pleaded allegations also satisfy Fed. R. Civ. P. 20(a)(1)(B), which provides

that joinder is proper if “any question of law or fact common to all defendants will arise in the

action.” In this case, Defendants, without any authorization or license from Plaintiff, have

knowingly and willfully used and continue to use Plaintiff’s patent, in connection with the

advertisement, distribution, offering for sale, and sale of Infringing Products into the United States

and Florida over the Internet. Compl. at ¶¶ 1, 20 – 40. In addition, the methods Plaintiff uses to

investigate, uncover, and collect evidence about any infringing activity will be the same for each

Defendant. Each Defendant may later present different factual evidence to support individual legal

defenses, but “[p]rospective factual distinctions, however, will not defeat the commonality in facts

and legal claims that support joinder under Rule 20(a)(2)(B) at this stage in the litigation.” First

Time Videos, LLC v. Does 1–500, 276 F.R.D. 241, 252 (N.D. Ill. 2011).

D. The Authority Cited in This Court’s Order is Distinguishable and Contrary to

the Overwhelming Majority View Even by Those Courts.

In its October 30, 2024, Order, the Court addresses three opinions addressing joinder.

(ECF No. 8 at pp. 2-3 (citing AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 998 (D.C. Cir.

2014); Illustrata Servicos Design, Ltda. v. P’ships & Unincoporated Ass’ns, 2021 WL 5396690,

at *2 (N.D. Ill. Nov. 18, 2021); and Omega, SA v. Individuals, Bus. Entities, and Unincorporated

Associations Identified on Schedule A, 2023 WL 2248233 at *2 (S.D. Fla. Jan. 14, 2023)).

permissibly proceeding with identifying each as a fictious Doe. “As a general matter, fictitious-
party pleading is not permitted in federal court. [The 11th Circuit] has created a limited exception
to this rule when the plaintiff’s description of the defendant is so specific as to be ‘at the very
worst, surplusage.’” Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010). Here, it would
be permissible for Plaintiff’s initial pleading to simply identify each defendant as a Doe, but
Plaintiff has gone even further and identified these sellers with sufficient specificity that the online
platforms can act upon any preliminary or final relief ordered by this Court.

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With respect to AF Holdings, LLC, that case involved joinder of defendants downloading

the same asserted copyrighted work using BitTorrent technology. Id. at 993. As noted in that

case, the only common action taken by the defendants in cases like AF Holdings, LLC (i.e.,

BitTorrent cases), is the defendant accessing the same file through a BitTorrent protocol at

different times. Id. at 998. Unlike the matter at hand, these BitTorrent cases do not involve

defendants that are all engaging in a systematic approach of establishing an esoteric online

storefront to redistribute illegal products from the same or similar sources while maintaining

financial accounts that the Defendant can easily conceal to avoid any real liability for their actions.

The matter at hand involves a detailed network of online platforms and sellers that are engaged in

the same illicit conduct which the DHS has warned is now a threat to public safety and national

security, not disconnected individuals who merely click a mouse to access the same content. See

Homeland Security Report at p. 3.

Illustrata involved a lawsuit brought against 141 defendants on the basis that the alleged

infringement was interrelated simply because the products sold by defendants were similar. Id.,

2021 WL 5396690, at *2. Unlike in that case, in the instant matter, the 23 defendants included in

the Schedule A in this case are all selling the exact product, using identical images of the same

product to advertise the Infringing Products for sale.

In Omega, S.A., the Court relied heavily on the district court’s decision in Estée Lauder

Cosmetics Ltd. v. P’ships & Unincorporated Ass’ns Identified on Schedule A, 334 F.R.D. 182, 184

(N.D. Ill. 2020), to support the position that “joinder of numerous defendants in one action

undermines judicial economy where the court must still evaluate the evidence submitted against

each Defendant in support of liability and damages.” Id. at *3 (emphasis in original). The narrow

approach in Estée Lauder, however, is inconsistent with long standing precedent, and would not

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permit joinder of any defendants. Rather, it requires that a plaintiff show that multiple e-commerce

store seller aliases are operated by the same individual or entity, i.e., a single defendant. The

information required to meet such a stringent requirement is typically not available prior to court

ordered discovery, and even if it was, could easily be circumvented by defendants using false

information.

Moreover, Estée Lauder relies on distinguishable authority, wherein the defendants were

known corporations or entities. See Slep-Tone Entm't Corp. v. Roberto, 2013 WL 5748896, at *2-

3 (N.D. Ill. Oct. 22, 2013) (defendants were identifiable, distinct individuals and restaurants

providing karaoke entertainment); ThermaPure, Inc. v. Temp-Air, Inc., 2010 WL 5419090, at *4

(N.D. Ill. Dec. 22, 2010) (severing case with defendants that were identifiable corporations and

entities); Spread Spectrum Screening, LLC v. Eastman Kodak Co., 2010 WL 3516106, at *2 (N.D.

Ill. Sept. 1, 2010) (same); SB Designs v. Reebok Int'l, Ltd., 305 F. Supp. 2d 888, 892 (N.D. Ill.

2004) (same).

This action involves defendants, the specific identity of which are incapable of being

known at the preliminary stages of the proceeding, who are simultaneously working in a similar

manner and as part of the same “occurrence” of mass harm to the Plaintiff. Courts in the Northern

District of Illinois have considered the court’s decision in Estée Lauder, under circumstances

similar to this action, and still found joinder was appropriate. See Pink Floyd (1987) Limited v.

Partnerships and Unincorporated Associations Identified on Schedule “A”, Case No. 21-cv-

04406, 2021 WL 7179622, at *1 (N.D. Ill. Oct. 21, 2021) (noting the court’s prior decision in Estée

Lauder and nevertheless holding that “Plaintiff has sufficiently demonstrated that [Plaintiff’s

allegations] arise out of the same occurrence or series of occurrences … at this preliminary stage.”)

Chrome Cherry Limited, 2021 WL 6752296, at *1 (same); see also Viahart, L.L.C., 2022 WL

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445161, at *4 (“no basis to find misjoinder” based on allegations that “the defendants all worked

together as an ‘interrelated group’ to knowingly sell counterfeit products” and the plaintiff “did

not know the full identities of the defendants because they operated to conceal their identities and

the network in which they operated”).

Further, in Omega, SA, the Court noted that Plaintiff asserted “over forty different

trademarks” against 108 defendants without a sufficient statement as to which defendant infringed

which mark. Omega, SA, 2023 WL 2248233, at *2. In this action, Plaintiff is only asserting

infringement of two patents and only against 16 Defendants, all of which are selling Infringing

Products on Amazon. Plaintiff has also provided exemplary comparisons for each Defendant

plainly showing each Defendant illicit infringement of its patents. See Exhibit 3.

E. Joinder is Consistent with Fairness, Convenience, and Judicial Economy

Under Federal Rule 20 and Federal Rule 21.

Joinder at this stage also serves the important interests of convenience and judicial

economy, leading to a just, speedy, and inexpensive resolution for Plaintiff, Defendants, and this

Court. See TWOWS, 2023 WL 2837693, at *2 (“Joinder of the Defendants in Schedule ‘A’

continues to be appropriate under Rule 20(a) at this still early stage of the proceeding to ‘secure

the just, speedy, and inexpensive determination’ of this action.”) (citing Bose Corp., 334 F.R.D. at

517). Joinder of the claims in this case does not create any unnecessary delay nor does it prejudice

any party. Whereas, severance will likely cause delays and prejudice both Plaintiff and Defendants.

Plaintiff anticipates that most of these foreign Defendants will be individually subject to default,

and there is no prejudice to any defaulting defendant, whose liability may be established upon

default irrespective of the presence of any other defendant. See Pink Floyd (1987) Limited, 2021

WL 7179622, at *1 (“The Court additionally notes that no Defendants are prejudiced by permitting

joinder at this juncture.”); Chrome Cherry Limited, 2021 WL 6752296, at *1 (same).

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The resources of the Court, other judges in this District, Plaintiff and other Districts will

be substantially taxed if Plaintiff’s claims against Defendants are severed or dropped. “Requiring

the filing of separate complaints could flood the courts with thousands of additional single

defendant Lanham Act cases, with no difference in resolution of nearly every case in a practical

sense. The only thing that will inevitably occur is the slowdown of adjudications of other lawsuits,

or the decrease of filings of cases which on their face have alleged plausible violations of the

Lanham Act.” Bose Corp., 334 F.R.D. at 517, n.6.

Importantly, such impediments would also reduce the ability of Plaintiff and other brand

owners to effectively protect their intellectual property rights and consumers in a cost-effective

manner. This is especially true in the context of online counterfeiting and infringement. Indeed,

due to the overwhelming number of sellers engaging in the counterfeiting and infringing conduct

identified by Plaintiff’s Complaint, requiring Plaintiff to file a separate suit with a separate filing

fee with separate costs associated with each case is prejudicial to Plaintiff’s efforts to protect its

intellectual property. This is particularly so where each case would involve identical legal and

factual issues, the only possible difference being that each has a different named defendant (which

regardless of name are likely operated by the same group of intellectual property thieves). By

requiring Plaintiff to undertake such a monumental task, which is inconsistent with case law that

favors joinder, see e.g. In re EMC Corp., 677 F.3d at 1358, Plaintiff will be effectively left without

any realistic procedural vehicle to enforce its intellectual property rights.

Cases like this are one of the few effective mechanisms for combatting online

counterfeiting and infringement, and compensating victims like Plaintiff for the harm they have

suffered. In sum, Plaintiff’s well-pleaded allegations establish that the named Defendant Internet

Stores are participating in the same unlawful occurrence or series of occurrences and that joinder

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is proper. Plaintiff (as well as other brand owners) would be severely prejudiced if it were required

to file separate lawsuits simply because Defendants registered a particular e-commerce store using

a different Defendant Internet Store. Shambour v. Carver County, 2014 WL 3908334, at *6 (D.

Minn. Aug. 11, 2014) (“In the matter at hand, joinder is proper because the alleged acts similarly

support a larger allegation of a systemic problem and the Court is persuaded that keeping

Shambour’s claims together is not only permissible but preferable.”).

F. Joinder Will Not Require the Clerk’s Office to Manually Input All Defendants
Into the Court’s Electronic Filing System.

If the Court finds that joinder is proper and allows Plaintiff to proceed against the

Defendants listed in Schedule A to the Complaint, Plaintiff will make itself responsible for adding

all parties to the Court’s electronic filing system. Once a temporary restraining order has been

served on the relevant parties and the requested actions are taken, Plaintiff will move to unseal all

portions of the docket, and thereafter will file a Notice of Entry of Parties listing each Defendant,

and manually entering those Defendants into the Court’s electronic filing system.

III. CONCLUSION

For the reasons set forth above, joinder of Defendants is proper.

Dated: November 8, 2024 Respectfully submitted,

BOIES SCHILLER FLEXNER LLP

/s/ Nicole Fundora

Nicole Fundora (FL Bar No. 1010231)
100 SE 2nd Street
Suite 2800
Miami, FL 33131
Tel: (305) 539-8400
nfundora@bsfllp.com

Counsel for Plaintiff DiFOLD Inc.

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