Case 1:22-cv-02246-JPH-MKK Document 96 Filed 05/12/23 Page 1 of 4 PageID #: 396

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA,
INDIANAPOLIS DIVISION

RENEE GABET and )

ANNIE OAKLEY ENTERPRISES, INC., )
)
Plaintiffs, )
)
-vs.- )
Case No. 1:22-cv-02246-JPH-MKK
)
)
AMAZON.COM, INC., and
JOHN DOES 1-50, )
)
Defendants. )
)

BRIEF IN SUPPORT OF MOTION TO STRIKE PLAINTIFFS’ MOTION

FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
(ECF NO. 90; ECF 90-1; ECF 90-2) AND FOR FURTHER SANCTIONS
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Pursuant to Local Rule 1-3, Amazon moves the Court to strike plaintiffs’ Motion for Leave

to File a Second Amended Complaint (ECF 90; ECF 90-1; ECF 90-2) and to impose a monetary

sanction on plaintiffs’ counsel. The Motion For Leave does not comply with the rules governing

the form of documents. The defect is prejudicing Amazon. Plaintiffs’ counsel refuses to remedy it

even though he could easily do so, and the Court has warned plaintiffs’ counsel previously.

Specifically, Exhibit A to the proposed Second Amended Complaint (“SAC”) includes a

small-print, non-searchable, scanned list of what appears to be more than 1,600 products that

plaintiffs seek to accuse of infringement through the SAC. (ECF 90-1 at 34–37.) This is an image

of the first page of Exhibit A:

Exhibit A identifies accused products only by “ASIN,” which stands for “Amazon Standard

Identification Number,” which is typically a nine-digit alphanumeric code. Plaintiffs have filed

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Exhibit A in a format that prevents cutting and pasting, which is necessary for Amazon to identify,

efficiently and accurately, the products plaintiffs are attempting to accuse.

Prior to plaintiffs’ filing their Motion for Leave, plaintiffs refused to provide any copy of

Exhibit A. (See Exhibit 1 (ECF 95-1).) Now, plaintiffs refuse to provide a usable copy of one,

despite Amazon’s requests on three consecutive days. (See Exhibit 2 (ECF 95-2).)

Plaintiffs’ latest gambit violates the rules for filing documents and is obvious

gamesmanship, with no excuse. It is designed to drive up the cost and time for Amazon to conduct

an analysis of the proposed newly accused products and to prepare a response to plaintiffs’ Motion

for Leave. It would be burdensome and unreliable for Amazon to manually type out the list of

thousands of precisely sequenced characters. On the other hand, it would require virtually no time

or effort by plaintiffs’ counsel to email the electronic document used to create Exhibit A.

Exhibit A is not compliant with the Court’s Electronic Case Filing Policies and Procedures

Manual, page 10, which prohibits converting a usable electronic document into an unusable

version and then filing the unusable version:

All pleadings and other filings, including motions, briefs, and proposed orders must
be converted to PDF format directly from a word processing program (e.g.
Microsoft® Word), rather than created from the scanned image of a paper
document. An exhibit may be scanned into PDF format, at a recommended 300 dpi
resolution or higher, only if it does not already exist in electronic format.

Exhibit A, which is a long list of letters and numbers, obviously pre-existed in an electronic format.

This Court already has warned plaintiffs’ counsel in prior litigation between the parties that

he is “cautioned to comply with the Court’s Practices and Procedures in this and other cases going

forward or risk striking of the filing.” Annie Oakley Enterprises, Inc. v. Amazon.com, Inc., 559 F.

Supp. 3d 780, 787 (S.D. Ind. 2021). Despite this warning, earlier in the case, plaintiffs’ counsel

filed a notice of automatic initial discovery extension (ECF 75) in violation of Local Rule 6-1(a)(4)

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because he falsely stated to the Court that plaintiffs’ counsel was unable to reach Amazon’s

counsel. In fact, Amazon’s counsel responded to his request for a conference within 30

minutes. (For evidence and details, see ECF 76-1.) Now, plaintiffs’ counsel is at it again.

The Court should follow through with its caution and strike plaintiffs’ Motion for Leave.

In addition to authorizing the Court to strike the filing, Local Rule 1-3 separately authorizes the

Court to “sanction an attorney or party who files a non-compliant document.” This is a situation

that merits such sanctions, given the Court’s warning, plaintiffs counsel’s repeated recidivism, and

his obvious gamesmanship. As a result, Amazon requests the Court to sanction plaintiffs’ counsel

in a monetary amount that it deems adequate to discourage further abuse.

May 12, 2023 Respectfully submitted,

/s/ Klaus H. Hamm

Robert T. Cruzen (Admitted pro hac vice)
Caroline L. Desmond (Admitted pro hac vice)
Klaus H. Hamm (Admitted pro hac vice )
KLARQUIST SPARKMAN, LLP
121 S.W. Salmon Street, Suite 1600
Portland, OR 97204
Telephone: (503) 595-5300
Fax: (503) 595-5301
rob.cruzen@klarquist.com
caroline.desmond@klarquist.com
klaus.hamm@klarquist.com

Counsel for Defendant

AMAZON.COM, INC.

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