CONCERNEDAPE LLC v. THE PARTNERSHIPS AND UNINCORPORATED ASSOCIATIONS IDENTIFIED ON SCHEDULE (2026)

ORDER

Before the Court is Plaintiff ConcernedApe LLC's (“Plaintiff”) Response to the Court's Order to Show Cause, (Dkt. 53), including Plaintiff's supplemental briefing on joinder. After reviewing the pleading, the relevant case law, and Plaintiff's supplemental briefing, the Court finds that joinder has not been sufficiently established and will order that all Defendants but one be severed from this action.

I. BACKGROUND

On November 26, 2025, the Court granted Plaintiff ConcernedApe LLC (“Plaintiff”) a preliminary injunction but ordered Plaintiff to file supplemental briefing regarding the propriety of permissive joinder in this case by April 24, 2026. (Order, Dkt. 35, at 4–6). The Court noted in its Order that it was “skeptical that joinder of Defendants ․ is appropriate,” given that “at the preliminary injunction hearing, counsel for Plaintiff could not provide the Court with specific ‘information’ demonstrating that Defendants are ‘working in active concert,’ ” despite pleading that Defendants are interrelated “based on information and belief.” (Compl., Dkt. 1, at 11; Order, Dkt. 35, at 4–5). The Court also found Plaintiff's argument that the products made by Defendants look similar to each other to be unpersuasive evidence of Defendants being related, as this is an action alleging trademark and copyright infringement of Plaintiff's intellectual property; “it is therefore unsurprising that products made by Defendants look similar to each other.” (Order, Dkt. 35, at 5–6). Finally, the Court reasoned that merely using the same manufacturer does not necessarily lead to the conclusion that Defendants are working in concert. (Id. at 6). The Court therefore required that Plaintiff, in order to continue with all Defendants joined in a single action, “provide stronger evidentiary support at a later date, based on discovery, to demonstrate that Defendants are interrelated or acting in concert.” (Id.). The Court stated that it would then decide whether to sever Plaintiff's claims against Defendants. (Id.).

On January 16, 2026, Plaintiff moved for the Clerk of Court to enter default against the remaining Defendants. (Mot. for Entry of Default, Dkt. 43). The Clerk of Court entered default on February 11, 2026. (Entry of Default, Dkt. 46). Plaintiff subsequently moved for default judgment against all remaining Defendants, (Dkt. 49), and this motion remains pending.

On April 29, 2026, the Court ordered Plaintiff to show cause for its failure to file supplemental briefing on joinder by the provided deadline. (Order to Show Cause, Dkt. 52). Plaintiff thereafter filed a Response to Show Cause Order, which included its supplemental briefing on joinder. (Resp., Dkt. 53).

II. LEGAL STANDARD

Under Rule 20(a):

Persons ․ may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.

Fed. R. Civ. P. 20(a)(2). Permissive joinder under Rule 20 is broad, as “[u]nder the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). See also Arrington v. City of Fairfield, 414 F.2d 687, 693 (5th Cir. 1969) (explaining that Rule 20 is “very broad” and that “court[s] [are] given discretion to decide the scope of the civil action and to make such orders as will prevent delay or prejudice”).

On the other hand, where defendants are not genuinely related or working in concert, it does not serve Rule 20(a)'s purpose of “promot[ing] trial convenience and expedit[ing] the final determination of disputes” to join defendants. See 7 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1652 (3d ed. 2001) (explaining the purpose behind permissive joinder); Estee Lauder Cosms. Ltd. v. P'ships & Unincorporated Ass'ns Identified on Schedule A, 334 F.R.D. 182, 187 (N.D. Ill. 2020) (noting that “[w]hen defendants are not connected to one another, there is no evidentiary overlap in proving what one defendant did and what another did”). Moreover, “even if [Rule 20's] test is satisfied, district courts have the discretion to refuse joinder in the interest of avoiding prejudice and delay, ․ ensuring judicial economy, ․ or safeguarding principles of fundamental fairness.” Acevedo v. Allsup's Convenience Stores Inc., 600 F.3d 516, 521 (5th Cir. 2010).

III. DISCUSSION

Plaintiff's supplemental briefing on joinder primarily relies on one argument: “[b]y defaulting, a defendant is deemed to admit ‘the plaintiff's well-pleaded allegations of fact.’ ” (Resp., Dkt. 53, at 2 (quoting Nishimatsu Constr. Co. v. Hous. Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). Plaintiff further contends that, “by defaulting,” Defendants have admitted to allegations such as: (1) “Defendants['] infringement arises out of the same transaction, occurrence, or series of transactions or occurrences”; (2) “Defendants attempt to avoid and mitigate liability by operating under one or more Seller Aliases to conceal both their identities and the full scope and interworking of their counterfeiting operations”; (3) “Unauthorized/Infringing Works for sale by the Seller Aliases bear similar irregularities and indicia of being counterfeit to one another, suggesting that ․ Defendants are interrelated”; and (4) “․ Defendants are working in active concert to knowingly and willfully manufacture, import, distribute, offer for sale, and sell Unauthorized/Infringing Works in the same transaction, occurrence, or series of transactions or occurrences.” (Id. at 2–3). Plaintiff also points to persuasive authority from the Fifth Circuit supporting its argument that—at the pleading stage—allegations that anonymous defendants are working together are sufficient for permissive joinder under Rule 20. (Id. at 3–5 (citing Viahart, L.L.C. v. GangPeng, No. 21-40166, 2022 WL 445161, at *4 (5th Cir. Feb. 14, 2022)).

The Court finds that Plaintiff has failed to meet its burden to establish permissive joinder is warranted under Rule 20. For one, the Court notes that default judgment has not yet been entered in this case. Fifth Circuit precedent supports that it is a default judgment—not mere entry of default—that establishes a defendant's liability on the merits. See U.S. For Use of M-CO Const., Inc. v. Shipco Gen., Inc., 814 F.2d 1011, 1014 (5th Cir. 1987) (citation omitted) (“A default judgment is a judgment on the merits that conclusively establishes the defendant's liability. After a default judgment, the plaintiff's well-pleaded factual allegations are taken as true, except regarding damages.”); Nishimatsu Const. Co. v. Hous. Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (“The defendant, by his default, admits the plaintiff's well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established. A default judgment is unassailable on the merits but only so far as it is supported by well-pleaded allegations, assumed to be true.”) (emphasis added); L. Funder, L.L.C. v. Munoz, 924 F.3d 753, 761 (5th Cir. 2019), as revised (June 6, 2019) (“A default judgment establishes the defendant's liability but not the quantity of damages.”) (emphasis added).¹ Plaintiff's reliance on its allegations, with no new assertions of fact—despite the Court ordering Plaintiff to substantiate its joinder allegations at an early phase of the case and providing Plaintiff with approximately five months to undertake discovery ² —is therefore insufficient to support joinder.

Moreover, even if the clerk's entry of default were sufficient to allow the Court to accept Plaintiff's “well-pleaded allegations of fact” in determining whether joinder is proper,³ Plaintiff does not address that Defendants are “not held to admit facts that are not well-pleaded or to admit conclusions of law.” See Nishimatsu Const. Co., 515 F.2d at 1206. For instance, the Court will not take as true that “Defendants['] infringement arises out of the same transaction, occurrence, or series of transactions or occurrences,” (see Resp., Dkt. 53, at 2), as this is a legal conclusion rather than a factual allegation. Additionally, even taking as true that Defendants “are in regular communication with each other” and discuss “tactics” on online chatrooms, (id. at 3), these statements alone are insufficient to conclude that the infringement by all Defendants “aris[es] out of the same transaction, occurrence, or series of transactions or occurrences.” Nor would accepting as true the conclusory statement that Defendants use a “common source,” (id.), i.e., a common manufacturer, establish as a matter of law that they are interrelated.

Finally, Viahart, L.L.C., which Plaintiff cites for support, does not alter this Court's conclusion. 2022 WL 445161, at *2, *4. There, the Fifth Circuit reviewed a district court's entry of default judgment after some Defendants appealed and challenged their joinder in the case after the default judgment had been entered. Id. While the Fifth Circuit reviewed the district court's grant of default judgment in that case and found it was not an abuse of discretion, see id. at *4 & n.2, the Court retains discretion to review Plaintiff's joinder allegations in the instant case. See Acevedo, 600 F.3d at 522 (stating that district courts may decline to join Defendants in its discretion to avoid prejudice and based on dissimilarities among joined parties). See also Viahart, L.L.C., 2022 WL 445161, at *4 n.2 (“Rulings on joinder of parties are reviewed for abuse of discretion.”). Further, unlike in Viahart, L.L.C., default judgment has not been entered in this case. As already noted, the Court identified various deficiencies in Plaintiff's joinder allegations at an early stage of the litigation and gave Plaintiff time to seek discovery in support of those allegations. Despite having five months to discover evidence substantiating its allegations regarding Defendants' identities and relationships, Plaintiff did not do so. Nor did Plaintiff provide the Court with any explanation why discovery relating to Defendants' identities and relationships was futile or why five months was not enough time. As such, the Court will not accept mere allegations at this stage of the litigation.

Because Plaintiff provided no evidentiary support that Defendants' actions arose from the same transaction, it has not shown that joinder of Defendants is appropriate under Rule 20. The Court will therefore dismiss without prejudice all Defendants except Doe 1 on Schedule A, identified as CEYYO on Amazon.com. Plaintiff may refile its claims against the other Defendants in separate actions. See Fed. R. Civ. P. 21; Omega, SA v. Individuals, Bus. Entities, & Unincorporated Ass'ns Identified on Schedule “A,” 650 F. Supp. 3d 1349, 1351–54 (S.D. Fla. 2023) (vacating a preliminary injunction in a Schedule A case after ordering the plaintiff to show cause as to whether permissive joinder of 108 defendants was appropriate, finding that joinder was not appropriate, severing all defendants but one from the action, and dismissing those defendants without prejudice for refiling in separate actions).

Accordingly, IT IS ORDERED that all remaining Defendants, except Doe 1: CEYYO, are DISMISSED WITHOUT PREJUDICE from this action.

SIGNED on July 9, 2026.

FOOTNOTES

1.   Other courts of appeals agree. See, e.g., Tripodi v. Welch, 810 F.3d 761, 764 (10th Cir. 2016) (“After a default judgment is handed down, a defendant admits to a complaint's well-pleaded facts and forfeits his or her ability to contest those facts.”) (emphasis added); Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990) (citation omitted) (“A consequence of the entry of a default judgment is that ‘the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.’ ”) (emphasis added).

2.   (See Order, Dkt. 53, at 6 (“[T]he Court will require Plaintiff[ ] to provide stronger evidentiary support at a later date, based on discovery, to demonstrate that Defendants are interrelated or acting in concert.”)).

3.   Though courts will accept factual allegations as true in deciding whether to grant default judgment in the first place, Plaintiff's motion for default judgment is not at issue in this Order. See Meyer v. Bayles, 559 Fed. Appx. 312, 313 (5th Cir. 2014) (citing Nishimatsu Constr. Co., 515 F.2d at 1206) (“ ‘There must be sufficient basis in the pleadings’ for the entering of a default judgment, and the court must accept the well-pleaded factual allegations in the plaintiff's complaint.”).

ROBERT PITMAN UNITED STATES DISTRICT JUDGE