68 PT's Motion to Sever.pdf
Case 2:12-cv-00239-KJD -RJJ Document 68
Filed 05/11/12 Page 5 of 10
must a question of law or fact common to all plaintiffs in the action. For a joinder to be
proper under Rule 20, both requirements of the rule must be satisfied. See, Waterfall
Homeowners Ass’n v. Viega, Inc., 2012 U.S. Dist. LEXIS 10315, at *10 (D. Nev. Jan. 30,
2012). As demonstrated below, Plaintiff fails to satisfy either of these two requirements.
Plaintiff’s Claims Do Not Arise Out Of The Same
Transaction or Occurrence.
Greenberg Traurig, LLP
Suite 400 North, 3773 Howard Hughes Parkway
Las Vegas, Nevada 89109
(702) 792-9002 (fax)
The first prong of Rule 20, the “same transaction” requirement, refers to whether
claims share the same factual background.
In the Ninth Circuit, the phrase “same
transaction, occurrence, or series of transactions or occurrences” refers to “similarity in the
factual background of a claim.” See, Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir.
1997). It requires a “degree of factual commonality underlying the claims,” which typically
means that a plaintiff “must assert rights that arise from related activities.” See, Innovus
Prime, LLC v. LG Electronics, Inc., 2012 WL 161207 at *2 (N.D. Cal. Jan. 18, 2012)
(internal citations omitted). Further, “[w]here a plaintiff sues ‘unrelated and competing
defendants for their own independent acts of….infringement,’ and alleges that those
defendants were ‘acting separately,’ such conduct cannot ‘involve or arise out of the same
transaction, occurrence or series of transactions or occurrences’ pursuant to Fed. R. Civ.
P. 20(a)(2).” Id. (Emphasis in original.)
In the instant matter, Plaintiff has alleged that 95 separate defendants have at
separate times and in separate places infringed its SOUND CHOICE Marks. No allegation
is made by Plaintiff that any of the defendants acted in concert. The only connection
between the defendants is that plaintiff has accused each defendant of infringing the same
trademark. This is insufficient for finding proper joinder. See, Interval Licensing LLC v.
AOL, Inc., 2011 WL 1655713 (W.D. Wash. Apr. 29, 2011) (finding joinder was improper
where the only connection between defendants was that they were accused of infringing
the same patent); WiAV Networks, LLC v. 3Com Corp., 2010 WL 3895047 at *1, 3 (N.D.
Cal. Oct. 1, 2010) (finding severance proper in a patent infringement suit brought against
40 unrelated defendants with unrelated products); Golden Scorpio Corp. v. Steel Horse
LV 419,723,655v1 5-11-12