USDC IN/ND case 1:22-cv-00035-HAB-SLC document 43 filed 08/12/22 page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

RENEE GABET, ET AL. )

Plaintiff(s) )
v. )
) Cause No. 1:22-cv-00035-HAB-SLC
AMAZON.COM, INC. )
Defendants )
)

Plaintiff’s Reply in Support of Motion to Strike [Dkt. 37]

Amazon’s Reply [Dkt. 36] in Support of Motion to Transfer Venue
[Dkt. 20]
A. Plaintiffs’ Motion to Strike is Timely

Amazon argues that Plaintiffs’ Motion to Strike is untimely, but it fails to

cite any deadline for filing a motion to strike. That is because no deadline exists.

B. Plaintiffs’ Motion to Strike is not based on “false statements.”

Section II of Amazon’s Response alleges that Plaintiffs’ Motion to Strike “is

based on false statements about Amazon’s arguments.” Plaintiffs vigorously

disagree and note that Amazon failed to include complete quotes from Plaintiffs
Motion. 1 Amazon’s allegations are discussed in the below sections addressing

the specific evidence and arguments Plaintiffs seek to strike.

1 For example, Amazon’s Response states:

First, plaintiffs’ Motion to Strike falsely states that every document listed
on pages 3 and 4 of the Motion “were available to Amazon when it filed
its Motion to Transfer Venue on April 2 [sic], 2022.” (ECF No. 37 at 3–4; 5.)

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C. The new allegations and arguments in Amazon’s Reply.

1. Residential Venue

Plaintiffs’ Motion established that Amazon’s Reply made a new argument

that it was a “resident” of the Southern District because it sold “accused

products” in the Southern District. Those alleged sales all occurred in 2020 and

2021, so they were available to Amazon when it filed its original Motion to

Transfer. Amazon’s Response counters by arguing that, in fact, its Motion for

Transfer did argue it was a “resident.” But its argument in that Motion was

actually that it was a “resident” in the Southern District merely because

“personal jurisdiction over Amazon exists in the Southern District with respect to

[other litigation].” [#21, p. 12]. But having litigating in a District before is not the

test for residency under 28 U.S.C. § 1391(c)(2). It establishes residency on a case-

by-case basis, as it depends on “the civil action in question.” To attempt to meet

this requirement, in its Reply, Amazon’s submitted a new declaration of Nixon

alleging that various products were sold in the Southern District that are
allegedly similar to the products at issue in this case. But that is a new argument

[#38, p. 6] (emphasis added).

This is misquotes Plaintiffs’ Motion, which actually states:
All of the above evidence and arguments were available to Amazon when
it filed its Motion to Transfer Venue on April 2, 2022, yet it concealed them
until filing its Reply.
[#37, p. 5] (emphasis added).

Plaintiffs stand by this statement. While Amazon selected some recent

documents to include with its Reply, it does not deny that the evidence contained
in those documents was available to it when it filed its original Motion to Transfer.

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and new evidence that was available when Amazon filed its original Motion to
Transfer, and Plaintiff had no opportunity to respond. Therefore, that argument

and evidence should be stricken from its Reply. Amazon should be required to

stick with the flawed argument for residency venue in its Motion, namely that
Amazon is a “resident” of any district in which it has been subject to “personal

jurisdiction.”

2. Cruzen Declaration, including email and interrogatories.

Plaintiffs’ Motion established that Amazon’s Reply included a new

Declaration of Amazon’s counsel Cruzen, and attached an email referencing a

possible stipulation and interrogatories dated after Cruzen’s first declaration.

[#36-1, #36-2, #36-3]. This is irrelevant; it is not the dates on the specific

attachments that are relevant, but underlying facts Amazon claims they show.

Amazon’s Response does not deny that the underlying facts in the attachments

were already known to it when it filed its Motion for Transfer. Thus, the new

Cruzen Declaration and its attachments should be stricken.

3. Google Map.

Amazon’s Reply included a Google Map purporting to show a 2 hour 37

minute drive time from Ligonier, Indiana to Indianapolis. [#36-4]. While Amazon

could have included this in its original Motion, Amazon claims it was submitted

to rebut the declaration of Gabet that it is “about a four-hour drive” for her as she
is “seventy years old and I have a bad back, which is made worse by long

drives.” [#34-2, p. 1]. Though the Google Map does not take into account drive

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times due to age or bad backs, Plaintiffs withdraw their Motion to Strike to the
extent it is directed toward the Google Map.

4. Nixon Declaration.

Plaintiffs’ Motion established that Amazon’s Reply included a new

Declaration of Nixon. [#36-5]. Amazon counters by claiming that the Nixon

Declaration “addresses - and moots – plaintiffs’ evidentiary objection,” directed

toward the six transactions in the original Cruzen declaration [#20-9]. Amazon

then cites cases purporting to hold that an authenticating declaration submitted

with a reply may “moot” objections to inauthentic declarations. [#38, p. 7-8].

However, the Nixon Declaration goes far above and beyond the six transactions

in the Cruzen Declaration. It lists nineteen transactions, none of which was listed

in the Cruzen Declaration. [#36-5, pp. 3-4] 2:

Transactions From Transactions From

Cruzen Declaration [#20-9, p. 2] Nixon Declaration [#36-5, pp. 3-4]

2There is no combination of “item name” and “order_day” that is common to

both lists, so these are all newly identified transactions.

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Transactions From Transactions From

Cruzen Declaration [#20-9, p. 2] Nixon Declaration [#36-5, pp. 3-4]

Amazon obviously tried to sneak in new transaction through the Nixon

Declaration. Moreover, every “order_day” in the Nixon Declaration is from 2020

or 2021, so Amazon could have included these in its original Motion filed

4/20/2022. Thus, the Nixon Declaration and the arguments referencing them in

Amazon’s Reply could have been presented earlier and should be stricken.

5. “Exact Same” Product Allegation.

Plaintiffs’ Motion established that Amazon’s Reply included an allegation

that at least one newly-identified product in the Nixon declaration was the “exact
same” product as a previously-identified product, while contradicting itself by

admitting that the other product had a “different size” and Amazon ASIN

number [#37, p. 4; #36, p. 7; #36-5, pp. 3-4]. As best as the undersigned can
discern, Amazon’s Response does not deny this fact.

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6. Infringing goods

Plaintiffs’ Motion established that Amazon’s Reply included a new and

factually unsupported argument that “[t]o the extent Amazon’s nationwide

website allegedly “offer[s] for sale and market[s] the subject infringing goods in
this judicial district,” any such offers or marketing efforts occur equally in the

Southern District;” [#37, p. 4]. Amazon counters that its argument “directly

responded to plaintiffs’ argument that the complaint here alleged that Amazon
infringes only in this District.” However, if Amazon wanted to argue that the

particular products were sold in the Southern District, it was obliged to offer

evidence of that in its Motion – and not conceal it until filing a Reply so Plaintiffs

could not respond.

7. Direct seller v. marketplace provider.

Plaintiffs’ Motion established that Amazon’s Reply argued for the first time

that “whether [Amazon] is a direct seller or merely a provider of the

amazon.com marketplace for third-party sellers (either can be true depending on

the particular sale) has no relevance.” [#37, p. 4]. This issue is relevant to

whether the Southern District has any connection “with respect to the civil action

in question.” As best as the undersigned can discern, Amazon’s Response does

not deny that this was a new and improper argument in its Reply.

II. Conclusion.

A reply should be limited to replying to arguments in a response; it should

not introduce new evidence and exhibits that deprive the opposing party of a

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chance to respond. Amazon’s Reply and exhibits in support of its Motion to

transfer total 61 pages. [#36 - #36-5]. This is pure gamesmanship by Amazon.

The Introduction and Section I (THIS ACTION COULD HAVE BEEN

BROUGHT IN THE SOUTHERN DISTRICT) of Amazon’s Reply should be

stricken. But Plaintiffs withdraw their request that the Google Map submitted

with Amazon’s Reply be stricken.

Respectfully submitted,
Overhauser Law Offices LLC

By: s/Paul B. Overhauser

Paul B. Overhauser
Overhauser Law Offices LLC
18 E. Main Street, Suite 202
Greenfield, IN 46140
P: 317-467-9100
poverhauser@overhauser.com
Attorney for Plaintiffs