Ilustrata Servicos Design, Ltda. v. The Partnerships and Unincorporated Associations Identified on Schedule "A"

Filing 15

MEMORANDUM OPINION and ORDER: For the reasons set forth within, Ilustrata's motion for leave to file certain documents under seal (Dkt. No. #8 ), ex parte motion for entry of a TRO (Dkt. No. 10 ), and motion to exceed the page limit for its memorandum in support of the TRO (Dkt. No. #9 ) are taken under advisement. Ilustrata is ordered to show cause, in writing, as to why the case should not be severed for misjoinder by December 2, 2021. Alternatively, Ilustrata may file an amended complaint by then if it can cure the joinder issues raised herein. It is so ordered. Signed by the Honorable Marvin E. Aspen on 11/18/2021. Mailed notice (ags)

Case: 1:21-cv-05993 Document #: 15 Filed: 11/18/21 Page 1 of 6 PageID #:962

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ILUSTRATA SERVICOS DESIGN, LTDA., )
)
Plaintiff,
)
)
v.
)
)
THE PARTNERSHIPS and
)
UNINCORPORATED ASSOCIATIONS
)
IDENTIFIED ON SCHEDULE “A,”
)
)
Defendants.
)

No. 21-CV-05993
Hon. Marvin E. Aspen

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Plaintiff Ilustrata Servicos Design, Ltda. (“Ilustrata”) names 141 defendants in this single
case. (Complaint (“Compl.”) (Dkt. No. 1) at 1; Schedule A (Dkt. No. 2).) Ilustrata has three
motions pending before us: (1) a motion for leave to file certain documents under seal, (2) an ex
parte motion for entry of a temporary restraining order (“TRO”), and (3) a motion to exceed the
page limit for its memorandum in support of the TRO. (Dkt. Nos. 8, 9, 10.) For the reasons set
forth below, these motions are taken under advisement and Ilustrata is ordered to show cause, in
writing, as to why the case should not be severed for misjoinder by December 2, 2021.
Alternatively, Ilustrata may file an amended complaint by then if it can cure the joinder issues
raised herein.
BACKGROUND
Ilustrata alleges that it is a Brazilian illustration studio that owns federal copyright
registrations that protect the creative content of its famous images and illustrations. (See Compl.
¶¶ 4, 6, 17.) Ilustrata’s creative content is known for its “retro and detailed style” and appears on

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t-shirts, prints, packages, character designs, and ads, among other things. (Id. ¶ 17.) Ilustrata
alleges that Defendants operate interactive commercial internet stores under aliases to sell
products bearing infringing versions of Ilustrata’s copyrighted works to customers in the United
States, including Illinois. (Id. ¶ 2.) Ilustrata claims that Defendants “have knowingly and
willfully pirate[d]” their intellectual property “without any authorization or license.” (Id. ¶ 34.)
Ilustrata also alleges that Defendants’ stores “share unique identifiers, such as design elements
and similarities of the unauthorized products offered for sale,” which “establish[] a logical
relationship between them and suggest[] that Defendants’ illegal operations arise out of the same
transaction, occurrence, or series of transactions or occurrences.” (Id. ¶ 8.)
ANALYSIS
Before deciding Ilustrata’s pending motions, we sua sponte 1 address the issue of joinder.
Under Federal Rule of Civil Procedure 20(a)(2), Ilustrata bears the burden of showing that
joinder is appropriate. See NFL Properties LLC v. The P’ships & Unincorporated Ass’ns
Identified on Schedule “A”, No. 21-CV-05522, 2021 WL 4963600, at *1 (N.D. Ill. Oct. 26,
2021); H-D U.S.A., LLC v. The P’ships & Unincorporated Ass’ns Identified on Schedule “A”,
No. 21-CV-01041, 2021 WL 780486, at *1 (N.D. Ill. Mar. 1, 2021); see also Estée Lauder, 334
F.R.D. at 185. “‘In assessing whether the requirements of Rule 20(a)(2) are met, courts must
accept the factual allegations in a plaintiff’s complaint as true.’” Estée Lauder, 334 F.R.D. at
185 (quoting Desai v. ADT Sec. Servs., Inc., No. 11 C 1925, 2011 WL 2837435, at *3 (N.D. Ill.

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“[I]t is appropriate for federal courts to raise improper joinder on their own, especially when
the sheer number of defendants waves a joinder red flag and ups the chances that the plaintiff
should be paying separate filing fees for separate cases.” Estée Lauder Cosmetics Ltd. v. The
P’ships & Unincorporated Ass’ns Identified on Schedule A, 334 F.R.D. 182, 186 (N.D. Ill. 2020)
(Chang, J.) (citing George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (noting that the district
court should have questioned joinder on its own in a 24-defendant case)).
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July 18, 2011)). However, courts need not accept conclusory or speculative statements that are
not factual assertions. NFL Properties, 2021 WL 4963600, at *1; H-D U.S.A., 2021 WL 780486,
at *1; see also Estée Lauder, 334 F.R.D. at 185.
Federal Rule of Civil Procedure 20(a)(2) provides that defendants may only be joined in a
single action if: (1) the claims against them are asserted “with respect to or arising out of the
same transaction, occurrence, or series of transactions or occurrences,” and (2) there is a
“question of law or fact common to all defendants.” Fed. R. Civ. P. 20(a)(2)(A)–(B). When
determining “whether the rights asserted arise out of the same transaction or occurrence, courts
should ‘consider the totality of the claims, including the nature of the claims, the legal basis for
recovery, the law involved, and the respective factual backgrounds.’” Estée Lauder, 334 F.R.D.
at 185 (quoting Ross ex rel. Ross v. Bd. of Educ. of Twp. High Sch. Dist. 211, 486 F.3d 279, 284
(7th Cir. 2007)).
Courts typically find that claims against different defendants arise out of the same
transaction or occurrence when there is a “logical relationship between the separate causes of
action.” In re EMC Corp., 677 F.3d 1351, 1358 (Fed. Cir. 2012); In re Price, 42 F.3d 1068,
1073 (7th Cir. 1994) (discussing the “same transaction or occurrence” requirement in the context
of Rule 13); Estée Lauder, 334 F.R.D. at 185. “Claims have a logical relationship when there is
a ‘substantial evidentiary overlap in the facts giving rise to the cause of action against each
defendant.’” Estée Lauder, 334 F.R.D. at 185 (quoting In re EMC Corp., 677 F.3d at 1358).
Where a court finds that joinder is not authorized by the Federal Rules of Civil
Procedure, it may sever parties on its own or direct the plaintiff to remedy the issue. NFL
Properties, 2021 WL 4963600, at *2; H-D U.S.A., 2021 WL 780486, at *2; Estée Lauder, 334

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F.R.D. at 186. District courts have broad discretion to remedy misjoinder, but in doing so, they
must avoid unnecessary harm to the parties. Estée Lauder, 334 F.R.D. at 186.
Courts in this District have held that plaintiffs cannot satisfy Rule 20’s requirements by
merely alleging that multiple defendants have infringed the same patent or trademark. See, e.g.,
Estée Lauder, 334 F.R.D. at 187; Slep-Tone Ent. Corp. v. Roberto, No. 12-cv-5750, 2013 WL
5748896, at *2–3 (N.D. Ill. Oct. 22, 2013); ThermaPure, Inc. v. Temp-Air, Inc., No. 10-cv-4724,
2010 WL 5419090, at *4 (N.D. Ill. Dec. 22, 2010); Spread Spectrum Screening, LLC v. Eastman
Kodak Co., No. 10 C 1101, 2010 WL 3516106, at *2 (N.D. Ill. Sept. 1, 2010); SB Designs v.
Reebok Int’l, Ltd., 305 F. Supp. 2d 888, 892 (N.D. Ill. 2004). This is so because one defendant’s
alleged infringement does not necessarily arise “out of the same transaction, occurrence, or series
of transactions of occurrences” as another defendant’s unrelated infringement. See Fed. R. Civ.
P. 20(a)(2)(A). Where defendants are not affiliated with one another, there is no evidentiary
overlap in proving liability for the alleged infringement. NFL Properties, 2021 WL 4963600, at
*2; H-D U.S.A., 2021 WL 780486, at *2; Estée Lauder, 334 F.R.D. at 187. From the defense
perspective, one defendant’s defenses do not depend on that of an unrelated codefendant. NFL
Properties, 2021 WL 4963600, at *2; H-D U.S.A., 2021 WL 780486, at *2; Estée Lauder, 334
F.R.D. at 187.
Ilustrata’s allegations are insufficient to show that joining all 141 defendants in this
single lawsuit is proper. Ilustrata repeatedly alleges that “Defendant Internet Stores share unique
identifiers, such as design elements and similarities of the unauthorized products offered for sale,
establishing a logical relationship between them and suggesting that Defendants’ illegal
operations arise out of the same transaction, occurrence, or series of transactions or occurrences.”
(Compl. ¶¶ 8, 11, 15.) But similarities between websites do not suggest a logical relationship

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between every Defendant. See Bose Corp. v. The P’ships and Unincorporated Ass’ns Identified
on Schedule “A”, No. 19 C 7467, 2019 WL 6210939, at *2 (N.D. Ill. Nov. 21, 2019) (finding
that nearly identical allegation regarding unique “design elements” did not support joinder). Nor
are Defendants or their alleged infringement “interrelated” simply because the products sold by
Defendants are similar. (Compl. ¶ 30); see H-D U.S.A., 2021 WL 780486, at *3; Bose, 2019 WL
6210939, at *2; Rudd v. Lux Prods. 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.”). Ilustrata also speculates that Defendants are “interrelated”
because they share “other notable common features, including use of the user name registration
patterns, unique shopping cart platforms, accepted payment methods, check-out methods, meta
data, illegitimate SEO tactics, HTML user-defined variables, lack of contact information,
identically or similarly priced items and volume sales discounts, similar hosting services, similar
name servers, and the use of the same text and images.” (Compl. ¶ 30.) But, as we have
explained in prior opinions, similar conclusory statements are insufficient to support joinder. See
NFL Properties, 2021 WL 4963600, at *2; H-D U.S.A., 2021 WL 780486, at *2–3; see also
Bose, 2019 WL 6210939, at *2 (finding that similar “notable common features” allegation did
not support joinder). Finally, the fact that Defendants allegedly “use a variety of other common
tactics to evade enforcement efforts,” such as “register[ing] new online marketplace accounts
under new aliases once they receive notice of a lawsuit” (Compl ¶ 31), does nothing to support
joinder either because these allegations are highly generic and apply equally to individuals and
entities engaging in activities that are not the subject of this suit.
On the facts before us, we cannot conclude that joinder of all 141 defendants would
promote judicial economy either. To the contrary, joinder in this case potentially yields

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significant financial gains to Ilustrata at the judiciary’s expense. As discussed more fully in H-D
U.S.A., cases naming numerous unrelated defendants burden the courts. See H-D U.S.A., 2021
WL 780486, at *3 (citing Estée Lauder, 334 F.R.D. at 189–90 and Purzel Video GMBH v. Does
1-91, Case No. 4:12-cv-02292, 2013 WL 4775919, at *2 (E.D. Mo. Sept. 6, 2013).) And by
suing 141 defendants in a single suit rather than in as many as 141 separate suits, Ilustrata may
save more than $56,000 in filing fees. See Northern District of Illinois’s Fee Schedule (“Civil
Filing Fee $ 402.00”); see also Patent Holder Identified in Exhibit 1 v. Does 1-254, No. 21 C
514, 2021 WL 410661, at *3 (N.D. Ill. Feb. 6, 2021) (“[B]y suing 254 defendants in a single suit
rather than 254 separate ones, the plaintiff will save, in one fell swoop, over $100,000 in filing
fees.”).
CONCLUSION
For the reasons set forth above, Ilustrata’s motion for leave to file certain documents
under seal (Dkt. No. 8), ex parte motion for entry of a TRO (Dkt. No. 10), and motion to exceed
the page limit for its memorandum in support of the TRO (Dkt. No. 9) are taken under
advisement. Ilustrata is ordered to show cause, in writing, as to why the case should not be
severed for misjoinder by December 2, 2021. Alternatively, Ilustrata may file an amended
complaint by then if it can cure the joinder issues raised herein. It is so ordered.

____________________________________
Honorable Marvin E. Aspen
United States District Judge

Dated: November 18, 2021

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