Viahart LLC v. Partnerships & Unincorporated Assocs. identified on schedule A, No. 19 C 8181, Slip Op. (N.D. I.. Apr. 4, 2022) (Alonso, J.).
Judge Alonso denied plaintiff Viahart’s Fed. R. Civ. P. 60(b)(6) motion to reopen its case and to permit limited jurisdictional discovery in this Doe case involving Amazon sales related to Viahart’s BRAIN FLAKES trademark.
The Court previously granted an ex parte temporary restraining order, granted Viahart’s request for service by alternate means and expedited discovery. The Court then granted a preliminary injunction followed by a default judgment. Thereafter defendant Liyunshop appeared and filed a motion to set aside the default judgment and to dismiss for lack of personal jurisdiction. The Court granted that motion, dismissing Viahart’s claim because Liyunshop lacked sufficient ties to Illinois.
Viahart’s jurisdiction argument was based upon eight Liyunshop sales to Illinois, and Liyunshop’s use of Amazon’s Fulfillment by Amazon program, which ships product to Amazon fulfillment centers around the country to allow for fast shipping.
The Court initially noted that relief pursuant to Rule 60(b)(6) was only appropriate where justified by “extraordinary circumstances.” Cases qualify for Rule 60(b)(6) consideration involve facts discovery after the judgment, and which could not have been earlier discovered. Viahart did not show that the facts it relied upon were not available before the judgment. Furthermore, Viahart made part of its argument for the first time on reply. The Court warned that “’[a] reply brief is for replying’—not sandbagging.” Quoting Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348, 360 (7th Cir. 1987) (Posner, J., concurring).
Further, the Court was not convinced that jurisdictional discovery would uncover evidence supporting jurisdiction in Illinois. There was only evidence of a single sale of accused product, into Maryland. The eight sales Viahart relied upon were not relevant because they were not of accused product. And Fulfillment by Amazon did not create jurisdiction. Liyunshop utilizes the Amazon service, but has no control over where Amazon places any product, and does not own any of Amazon’s fulfillment centers, nor did Liyunshop ship directly to an Amazon fulfillment center.