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Case 2:19-cv-00501-EJF Document 6 Filed 07/18/19 Page 1 of 8

Brent P. Lorimer (#3731)


blorimer@wnlaw.com
Brian N. Platt (#17099)
bplatt@wnlaw.com
WORKMAN NYDEGGER
60 East South Temple Suite 1000
Salt Lake City, UT 84111
Telephone: (801) 533-9800
Facsimile: (801) 328-1707

Attorneys for Plaintiff


The Neck Hammock, Inc.

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF UTAH

THE NECK HAMMOCK, INC., a Delaware Civil Action No. 2:19-cv-00501-EJF


corporation,
MOTION FOR TRANSFER OF
Plaintiff, RELATED CASES PURSUANT
TO DUCivR 83-2(g)
v.
Magistrate Judge Evelyn J. Furse
JOHN DOES 1 through 10, doing business
as “Oeagrus, Inc.” on www.amazon.com,

Defendants.

MOTION

Pursuant to DUCivR 83-2(g), Plaintiff The Neck Hammock, Inc. (“Neck Hammock”)

respectfully moves the Court for transfer of the following higher-number cases to Magistrate

Judge Evelyn J. Furse.

▪ The Neck Hammock, Inc. v. Does 1-10 d/b/a Nypot, Case No. 2:19-cv-503-PMW
(“Nypot”);
Case 2:19-cv-00501-EJF Document 6 Filed 07/18/19 Page 2 of 8

▪ The Neck Hammock, Inc. v. Does 1-10 d/b/a Tendazon, Case No. 2:19-cv-504-
DBP (“Tendazon”);

▪ The Neck Hammock, Inc. v. Does 1-10 d/b/a. Label Tape World, Case No. 2:19-
cv-505-JNP (“Label Tape World”);

These matters are related to lower-number case The Neck Hammock, Inc. v. Does 1-10 d/b/a

Oeagrus Inc., Case No. 2:19-cv-501-EJF (“Oeagrus Case”), and case The Neck Hammock, Inc. v.

Does 1-10 d/b/a health bianli, Case No. 2:19-cv-506-EJF (“health bianli Case”), which are

currently pending before Judge Furse. Each of the factors in DUCivR 83-2(g) favors or is

neutral regarding transfer to a single judicial officer and proceedings before Judge Furse.

MEMORANDUM

I. BACKGROUND PERTAINING TO PLAINTIFF’S MOTION FOR TRANSFER

Plaintiff Neck Hammock is a manufacturer and seller of at-home cervical traction devices

for relief of compression-related neck pain, like the device shown below in Figure 1. [See Dkt.

No. 2, Complaint, ¶¶ 2-4.]

The Neck Hammock® device includes shock-absorbing cords attached to the opposite ends of a

sling that cradles the user’s head, as shown below in Figure 2. [Id. at ¶ 5.]

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Figure 2

Neck Hammock began selling its at-home cervical traction devices in 2017 through a campaign

on kickstarter.com. [Id. at ¶ 8.] However, before the campaign was finished, infringers began

copying its design and selling cheaply made knock-off products. [Id. at ¶ 10.]

Neck Hammock alleges that the Defendants in each of these five related cases are

Amazon.com third-party sellers of cheaply made knock-off products that infringe Plaintiff’s

intellectual property rights. [See id. at ¶ 15; Nypot, Case No. 2:19-cv-503-PMW, Dkt. No. 2,

Complaint, ¶ 15; Tendazon, Case No. 2:19-cv-504-DBP, Dkt. No. 2, Complaint, ¶ 15; Label

Tape World, Case No. 2:19-cv-505-JNP, Dkt. No. 2, Complaint, ¶ 15; health bianli, Case No.

2:19-cv-506-EJF, Dkt. No. 2, Complaint, ¶ 15.]

A review of the various Complaints shows that Neck Hammock’s factual and legal

allegations against the Defendants are substantially identical, although each Defendant may

infringe in a slightly different way, and that the products alleged to infringe are substantially

identical. The factual similarities are shown in the table below (with actual product photos by

Plaintiff Neck Hammock):

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Neck Hammock Product Accused Product (Oeagrus)


U.S. Design Patent No. D842,035, Figure 1 Dkt. No. 2, Complaint, ¶ 69.

Accused Product (Nypot) Accused Product (Tendazon)


Nypot, Case No. 2:19-cv-503-PMW Tendazon, Case No. 2:19-cv-504-DBP
Dkt. No. 2, Complaint, ¶ 47. Dkt. No. 2, Complaint, ¶ 79.

Accused Product (Label Tape World) Accused Product (health bianli)


Label Tape World, Case No. 2:19-cv-505-JNP, health bianli, Case No. 2:19-cv-506-EJF,
Dkt. No. 2, Complaint, ¶ 68. Dkt. No. 2, Complaint, ¶ 79.
Case 2:19-cv-00501-EJF Document 6 Filed 07/18/19 Page 5 of 8

II. THESE RELATED CASES SHOULD BE TRANSFERRED TO JUDGE FURSE


UNDER DUCivR 83-2(g).

DUCivR 83-2(g) provides that “[w]henever two or more related cases are pending before

different judges of this court, any party to the later-filed case may file a motion and proposed

order to transfer the case to the judge with the lower-numbered case.” E.g., Starr Indemnity &

Liability Company v. MonaVie, Inc., Case No. 2:14-cv-00395-DN, 2017 WL 5564587, at *2 (D.

Utah. November 17, 2017) (transferring related cases to Judge Nuffer pursuant to DUCivR 83-

2(g)). As in Starr Indemnity, this case is the lower-numbered case. DUCivR 83-2(g) identifies a

number of factors for transfer of a related case:

(1) Whether the cases arise from the same or a closely related transaction or event;
(2) Whether the cases involve substantially the same parties or property;
(3) Whether the cases involve the same patent, trademark, or copyright;
(4) Whether the cases call for a determination of the same or substantially related
questions of law and fact;
(5) Whether the cases would entail substantial duplication of labor or unnecessary court
costs or delay if heard by different judges;
(6) Whether there is risk of inconsistent verdicts or outcomes;
(7) Whether the motion has been brought for an improper purpose; or
(8) Other factors as provided by case law.

DUCivR 83-2(g). Each of these factors either favors or is neutral regarding transfer.

Whether the cases arise from the same or a closely related transaction or event.

Each of these cases arises from the same or a closely related series of events, whereby Neck

Hammock alleges that its intellectual property rights have been infringed by a third-party vendor

on Amazon.com. [Dkt. No. 2, ¶¶ 14-16; Nypot, Case No. 2:19-cv-503-PMW, Dkt. No. 2,

Complaint, ¶¶ 14-16; Tendazon, Case No. 2:19-cv-504-DBP, Dkt. No. 2, Complaint, ¶¶ 14-16;

Label Tape World, Case No. 2:19-cv-505-JNP, Dkt. No. 2, Complaint, ¶¶ 14-16; health bianli,

Case No. 2:19-cv-506-EJF, Dkt. No. 2, Complaint, ¶¶ 14-16.] Although involving different
Case 2:19-cv-00501-EJF Document 6 Filed 07/18/19 Page 6 of 8

defendants, the Complaints allege a substantially identical pattern of conduct. Accordingly, this

factor favors transfer to the judge with the lower-numbered case.

Whether the cases involve substantially the same parties or property. The Plaintiff

and its counsel are the same in each of the five cases. [Dkt. No. 2, ¶¶ 14-16; Nypot, Case No.

2:19-cv-503-PMW, Dkt. No. 2, Complaint, ¶¶ 14-16; Tendazon, Case No. 2:19-cv-504-DBP,

Dkt. No. 2, Complaint, ¶¶ 14-16; Label Tape World, Case No. 2:19-cv-505-JNP, Dkt. No. 2,

Complaint, ¶¶ 14-16; health bianli, Case No. 2:19-cv-506-EJF, Dkt. No. 2, Complaint, ¶¶ 14-

16.] And although the defendant John Doe sellers may be different, the sales platform, products,

and sales activity of each Defendant will present similar issues for consideration by the Court.

This factor favors transfer to the judge with the lower-numbered case.

Whether the cases involve the same patent, trademark, or copyright. Each case

involves substantially the same patent and trademark claims; some of the cases feature copyright

claims where the Defendants are alleged to have copied Neck Hammock’s copyrighted photos or

graphics. [Dkt. No. 2, ¶¶ 25-26 (Trademarks, Design Patents, Patent); Nypot, Case No. 2:19-cv-

503-PMW, Dkt. No. 2, Complaint, ¶ 25 (Design Patents, Patent); Tendazon, Case No. 2:19-cv-

504-DBP, Dkt. No. 2, Complaint, ¶¶ 25-27 (Copyrights, Trademarks, Design Patents, Patent);

Label Tape World, Case No. 2:19-cv-505-JNP, Dkt. No. 2, Complaint, ¶¶ 25-26 (Trademarks,

Design Patents, Patent); health bianli, Case No. 2:19-cv-506-EJF, Dkt. No. 2, Complaint, ¶¶ 25-

27 (Copyrights, Trademarks, Design Patents, Patent).] The minor differences between the

Complaints notwithstanding, these cases involve the same patents, trademarks, and copyrights

and this factor favors transfer to the judge with the lower-numbered case.

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Whether the cases call for a determination of the same or substantially related

questions of law and fact. As noted above, the allegations involve a similar pattern of conduct

and substantially the same intellectual property rights of Plaintiff Neck Hammock. See

discussion supra pp. 5-6. It is likely these cases will likely call for similar determinations of the

same or substantially related questions of law and fact (indeed, these cases may benefit from

consolidation for certain pre-trial matters). This factor strongly favors transfer to the judge with

the lower-numbered case.

Whether the cases would entail substantial duplication of labor or unnecessary

court costs or delay if heard by different judges. Because each of the Complaints raises

substantially identical issues of law and fact, see discussion supra pp. 5-7, assignment of these

matters to a single judge will substantially reduce any duplication of labor and effort that would

result if these matters were heard by different judges. This factor strongly favors transfer to the

judge with the lower-numbered case.

Whether there is risk of inconsistent verdicts or outcomes. The Complaints raise

substantially identical issues of law and fact. [See generally Dkt. No. 2; Nypot, Case No. 2:19-

cv-503-PMW, Dkt. No. 2, Complaint; Tendazon, Case No. 2:19-cv-504-DBP, Dkt. No. 2; Label

Tape World, Case No. 2:19-cv-505-JNP, Dkt. No. 2, Complaint; health bianli, Case No. 2:19-cv-

506-EJF, Dkt. No. 2, Complaint.] This raises a potential risk of inconsistencies between matters.

This factor favors transfer to the judge with the lower-numbered case.

Whether the motion has been brought for an improper purpose. There is no

improper purpose in Neck Hammock’s motion, and this factor is neutral.

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Other factors as provided by case law. Neck Hammock is not aware of other factors

regarding transfer, and this factor is neutral.

III. NECK HAMMOCK’S MOTION TO TRANSFER RELATED CASES SHOULD


BE GRANTED.

Pursuant to DUCivR 83-2(g), judicial economy and the interest of justice favor the

transfer of these related cases to the judge with the lower-numbered case. For the foregoing

reasons, Neck Hammock respectfully requests the transfer of the following related higher-

number cases to the judge with the lower-numbered case, Magistrate Judge Furse.

▪ The Neck Hammock, Inc. v. Does 1-10 d/b/a Nypot, Case No. 2:19-cv-503-PMW
(“Nypot”);

▪ The Neck Hammock, Inc. v. Does 1-10 d/b/a Tendazon, Case No. 2:19-cv-504-
DBP (“Tendazon”);

▪ The Neck Hammock, Inc. v. Does 1-10 d/b/a. Label Tape World, Case No. 2:19-
cv-505-JNP (“Label Tape World”);

A proposed order granting this Motion to Transfer has been submitted herewith.

DATED this 18th day of July, 2019.

WORKMAN NYDEGGER

By: /s/ Brian N. Platt


BRENT P. LORIMER
BRIAN N. PLATT
60 East South Temple, Suite 1000
Salt Lake City, UT 84111
(801) 533-9800
(801) 328-1707 (FAX)

Attorneys for Plaintiff


THE NECK HAMMOCK, INC.

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