Wiesner Healthcare v. Schedule A - Order On Joinder

Case: 1:24-cv-07124 Document #: 17 Filed: 10/16/24 Page 1 of 2 PageID #:584
UNITED STATES DISTRICT COURT

FOR THE Northern District of Illinois − CM/ECF NextGen 1.8 (rev. 1.8.1)
Eastern Division
Wiesner Healthcare Innovation LLC

Plaintiff,
v. Case No.:
1:24−cv−07124
Honorable Sunil R.
Harjani
The Individuals, Corporations, Limited Liability
Companies, Partnerships, and Unincorporated Associates
Identified on Schedule A
Defendant.
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Wednesday, October 16, 2024:
MINUTE entry before the Honorable Sunil R. Harjani: The Court has reviewed the
plaintiff's memorandum on joinder [15] and determines, within its discretion, that plaintiff
has failed to satisfy its burden to show that joinder of 81 defendants is proper in this
matter. Plaintiff argues that defendants are properly joined because this case "asserts both
trademark and utility patent infringement, as opposed to typical Schedule A cases which
predominantly assert trademark and/or copyright infringement." Doc. 15 at 2. According
to plaintiff, joinder is proper at this preliminary stage of the litigation given "the
implications unique to utility patent infringement casesparticularly with respect to claim
construction and the statutory allowance of joinder for pre−trial matters." Id. Plaintiff is
correct that 35 U.S.C. § 299 governs joinder in patent cases. That statute provides, in
relevant part: "[P]arties that are accused [patent] infringers may be joined in one action as
defendants or counterclaim defendants, or have their actions consolidated for trial, only
if(1) any 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 relating to the making, using, importing into the United States, offering for
sale, or selling of the same accused product or process; and (2) questions of fact common
to all defendants or counterclaim defendants will arise in the action." 35 U.S.C. § 299(a).
Importantly, joinder is improper where "accused infringers" are joined "based solely on
allegations that they each have infringed the patent or patents in suit." Id. at § 299(b).
Plaintiff has not demonstrated that its claims against all defendants listed in Schedule A
may be properly joined in the same case in accordance with Section 299's same
transaction−or−occurrence test. At bottom, plaintiff claims that joinder is proper because
all of the defendants are using a subset of product images from a larger collection of
images for their listings. Doc. 15 at 5−6. Plaintiff has not cited any authority
demonstrating that defendants selling the same alleged infringing product and using
several images from the same larger subset of images in their listings satisfies Section
299's same transaction or occurrence requirement. The Court recognizes that plaintiff also
asserts claims against defendants for trademark infringement. However, under Rule 20's
Case: 1:24-cv-07124 Document #: 17 Filed: 10/16/24 Page 2 of 2 PageID #:585
joinder requirements for non−patent cases, plaintiff has not demonstrated a logical
relationship among all 81 defendants. "[I]t is not enough for a plaintiff to simply allege
that multiple defendants have infringed the same patent or trademark to meet Rule 20's
requirements." Estee Lauder Cosms. Ltd. v. The Partnerships, et al., 334 F.R.D. 182, 187
(N.D. Ill. 2020); see also ThermaPure, Inc. v. Temp−Air, Inc., 2010 WL 5419090, at *4
(N.D. Ill. Dec. 22, 2010). Moreover, use of the same small number of product images by
each of the defendants does not support joinder. "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." Tang v. Schedule A, 2024 WL
68332, at *2 (N.D. Ill. Jan. 4, 2024); see also Estee Lauder Cosms. Ltd., et al. v. The
Partnerships, et al., No. 20−cv−00845 (N.D. Ill. June 22, 2020) (Lee, J.) ("defendants with
nearly identical product descriptions may in fact share no ties, with each simply copying
the same description from elsewhere."). Within its discretion, on this record, the Court
finds that plaintiff has failed to meet its burden to show that defendants' actions were
performed in concert or connected in any way under Section 299 or Rule 20. See Estee
Lauder, 334 F.R.D. at 185 (noting that "[plaintiff] bears the burden of demonstrating that
joinder is proper"). As a result, joinder is improper here. To remedy this misjoinder,
plaintiff requests severance and then consolidation of the severed cases for pre−trial
proceedings instead of dismissal. Plaintiff also argues that it would be improper to sever
the claims against any of the defendants at this stage because the defendants can waive
Section 299's joinder requirements. See 35 U.S.C. § 299(c). The Seventh Circuit has held
that the proper remedy for misjoinder is "severance or dismissal without prejudice."
UWM Student Ass'n v. Lovell, 888 F.3d 854, 864 (7th Cir. 2018). Moreover, the Court
has authority to dismiss parties not only by motion of a party but also based on the Court's
review. See Fed. R. Civ. P. 21 ("On motion or on its own, the court may at any time, on
just terms, add or drop a party. The court may also sever any claim against a party."). On
this basis, the Court exercises its discretion to dismiss all of the joined defendants from
this case without prejudice. H−D U.S.A. v. Partnerships & Unincorporated Associations
Identified on Schedule "A", 2021 WL 780486, at *2 (N.D. Ill. Mar. 1, 2021) ("The
Seventh Circuit has recognized the broad discretion that district courts have in remedying
misjoinder, so long as the court's decision avoids unnecessary harm to the parties."). If
plaintiff refiles its claims against defendants in separate cases in this district and moves
for consolidation of pretrial proceedings, the issue can be addressed at that time.
Accordingly, plaintiff's motion for temporary restraining order [11] and motion for
alternative service [13] are denied without prejudice. Plaintiff may refile its motions
consistent with this Order. Plaintiff's motion for leave to file under seal [4] is granted.
Mailed notice(lxs, )
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.

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Case: 1:24-cv-07124 Document #: 17 Filed: 10/16/24 Page 1 of 2 PageID #:584

UNITED STATES DISTRICT COURT

Wiesner Healthcare Innovation LLC

NOTIFICATION OF DOCKET ENTRY

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