2025-cv-06682

COMPLAINT filed by KTM AG; Jury Demand. Filing fee $ 405, receipt number AILNDC-23634419.

(Exhibit 1)

CIVIL Cover Sheet

ATTORNEY Appearance for Plaintiff KTM AG by Michael A. Hierl

ATTORNEY Appearance for Plaintiff KTM AG by William Benjamin Kalbac

ATTORNEY Appearance for Plaintiff KTM AG by Robert Payton Mcmurray

ATTORNEY Appearance for Plaintiff KTM AG by John Wilson

ATTORNEY Appearance for Plaintiff KTM AG by Elizabeth Aubree Miller

MOTION by Plaintiff KTM AG to seal document Plaintiff's Motion for Leave to File Under Seal

SEALED DOCUMENT by Plaintiff KTM AG Sealed Schedule A

NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by KTM AG

Notice of Claims Involving Trademarks by KTM AG

ENTERED IN ERROR Modified on 6/17/2025.

CLERK'S NOTICE: Pursuant to Local Rule 73.1(b), a United States Magistrate Judge of this court is available to conduct all proceedings in this civil action. If all parties consent to have the currently assigned United States Magistrate Judge conduct all proceedings in this case, including trial, the entry of final judgment, and all post-trial proceedings, all parties must sign their names on the attached Consent To form. This consent form is eligible for filing only if executed by all parties. The parties can also express their consent to jurisdiction by a magistrate judge in any joint filing, including the Joint Initial Status Report or proposed Case Management Order.

CASE ASSIGNED to the Honorable Martha M. Pacold. Designated as Magistrate Judge the Honorable Keri L. Holleb Hotaling. Case assignment: Random assignment. (Civil Category 2).

NOTICE of Correction regarding entry (ENTERED IN ERROR Modified on 6/17/2025)

MAILED trademark report to Patent Trademark Office, Alexandria VA

MAILED to plaintiff(s) counsel Lanham Mediation Program materials

MINUTE entry before the Honorable Martha M. Pacold: Plaintiff's motion for leave to file under seal, 8, is denied. Plaintiff seeks leave to file under seal so that plaintiff may obtain a temporary restraining order freezing the defendants' assets before revealing the defendants' identities. Id. at 1-2. "The Supreme Court has made clear that courts lack the power to issue an asset freeze at the beginning of a case, unless that party is seeking equitable monetary relief." Zorro Productions, Inc. v. Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A Hereto, No. 23-cv-5761, 2023 WL 8807254, at *4 (N.D. Ill., Dec. 20, 2023) (citing Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308 (1999)); see also Shenzhen Yihong Lighting Co., Ltd. v. The Partnerships and Unincorporated Associations Identified on Schedule A, No. 23-cv-1560, at Dkt. 15 (N.D. Ill. Nov. 22, 2023). Indeed, "[a]s a general matter [ ] prejudgment asset restraints are not proper simply to establish a fund from which a later award of money damages can be satisfied." Zorro, 2023 WL 8807254, at *4 (second alteration in original) (quoting Banister v. Firestone, No. 17-cv-8940, 2018 WL 4224444, at *9 (N.D. Ill. Sept. 5, 2018)). In Schedule A cases, plaintiffs often initially demand equitable relief in the form of an accounting of profits, but after obtaining a temporary asset freeze, plaintiffs uniformly shift their focus to demanding statutory damages. Id. at *3-4. In substance, then, if not in form, Schedule A plaintiffs seek prejudgment asset restraints to establish a fund from which money damages may be awarded. So, despite the demand in plaintiff's complaint that it be awarded defendants' profits, the court is not persuaded that plaintiff will actually seek or obtain such equitable relief-as opposed to statutory damages-in this case. See id. Thus, even if plaintiff's initial demand for an accounting of profits could provide this court with the power to issue a prejudgment asset freeze, see Grupo Mexicano, 527 U.S. at 333; Banister, 2018 WL 4224444, at *9, the court is not persuaded that such a freeze is warranted. Plaintiff's motion for leave to file under seal, 8, is therefore denied. Plaintiff's sealed exhibit, 9, is stricken. If plaintiff wishes to proceed with this case, plaintiff must file an unsealed Schedule A publicly on the docket by 6/24/2025.

Schedule A by KTM AG

MINUTE entry before the Honorable Martha M. Pacold: By 7/2/2025, plaintiff is ordered to show cause why this case should not be dismissed or severed for improper joinder. Plaintiff is advised of the following: First, "[o]n motion or on its own, the court may at any time, on just terms, add or drop a party." Fed. R. Civ. P. 21(a). Second, sua sponte review of the propriety of joinder in Schedule A cases is a regular practice of courts in this district because plaintiffs "routinely file these multi-defendant cases. using cookie-cutter complaints that allege in a conclusory manner that 'on information and belief' each infringing defendant is inter-connected with the others." Viking Arm AS v. P'ships & Unincorporated Ass'ns Identified on Schedule "A", No. 24-cv-1566, 2024 WL 2953105, at *1 (N.D. Ill. June 6, 2024). Third, "[c]ourts generally find that claims against different defendants arose out of the same transaction or occurrence only if there is a logical relationship between the separate causes of action." Estee Lauder Cosms. Ltd. v. P'ships & Unincorporated Ass'ns Identified on Schedule "A", 334 F.R.D. 182, 185 (N.D. Ill. 2020) (citations and internal quotation marks omitted). Fourth, courts have held that "to be part of the same transaction requires shared, overlapping facts that give rise to each cause of action, and not just distinct, albeit coincidentally identical, facts." Id. (quoting In re EMC Corp., 677 F.3d 1351, 1359 (Fed. Cir. 2012)). Fifth, courts have held that the allegation that multiple defendants have infringed on the same copyright or trademark in the same way "does not create the substantial evidentiary overlap required to find a similar transaction or occurrence." Roadget Bus. Pte. Ltd. v. Schedule A Defs., No. 23-cv-17036, 2024 WL 1858592, at *6 (N.D. Ill. Apr. 29, 2024) (collecting cases). Finally, courts have held that the allegation that defendants "share unique identifiers, such as design elements and similarities of the unauthorized products offered for sale," is not sufficient to establish joinder. Ilustrata Servicos Design, Ltda. v. P'ships & Unincorporated Ass'ns Identified on Schedule "A", No. 21-cv-05993, 2021 WL 5396690, at *2 (N.D. Ill. Nov. 18, 2021); Art Ask Agency v. Individuals, Corps., Ltd. Liab. Cos., P'ships, & Unincorporated Ass'ns Identified on Schedule "A", No. 21-cv-06197, 2021 WL 5493226, at *2 (N.D. Ill. Nov. 23, 2021). In the alternative, plaintiff may discharge the order by filing an amended complaint with a smaller subset of defendants along with a memorandum explaining why that smaller subset of defendants is properly joined.

RESPONSE by Plaintiff KTM AG Memorandum in Response to Order of June 26, 2025 [Dkt. No. 17]

AMENDED complaint by KTM AG against The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Amended Schedule A Hereto

Exhibit 1

(Amended Schedule A)

MEMORANDUM by KTM AG Plaintiff's Memorandum in Support of Joinder

Exhibit 1

Exhibit 2

(Exhibit 3)

DECLARATION of Trunkenpolz-Sigl

EXHIBIT by Plaintiff KTM AG Exhibit 2 to Trunkenpolz-Sigl Declaration regarding declaration 21

MINUTE entry before the Honorable Martha M. Pacold: The court has received plaintiff's memorandum regarding joinder. 20. Having considered the memorandum and plaintiff's other filings in this case, the court finds that joinder of the defendants identified in plaintiff's amended Schedule A, [19-2], is improper. Rule 20 allows a plaintiff to join multiple defendants in an action where (1) "any right to relief is asserted against [the defendants] jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences" and (2) "any question of law or fact common to all defendants will arise in the action." Fed. R. Civ. P. 20(a)(2). Here, plaintiff's arguments in support of joinder are unpersuasive for the reasons stated in Hong Kong Leyuzhen Tech. Co. Ltd. v. Schedule A, No. 25-cv-4947, Dkt. 21 (N.D. Ill. June 3, 2025) and CAO Grp., Inc. v. Schedule A, No. 25-cv-4054, Dkt. 21 (N.D. Ill. May 16, 2025). To cure this deficiency, plaintiff is ordered to file a second amended complaint narrowing the claims down to a subset of defendants that are properly joined. If the second amended complaint names multiple defendants, plaintiff must also file a supplemental memorandum establishing that these defendants are properly joined. Plaintiff's second amended complaint and supplemental memorandum are due by 8/6/2025. If plaintiff does not file a second amended complaint or the court finds that joinder of the defendants named in plaintiff's second amended complaint is improper, the court will dismiss all improperly joined defendants without prejudice.

Second Amended Complaint AMENDED complaint by KTM AG against The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Amended Schedule A Hereto

Exhibit 1

(Amended Schedule A)