Schedule A Litigation

Schedule A litigation represents a highly specialized form of intellectual property enforcement designed to address the challenges of digital counterfeiting by joining numerous defendants into a single lawsuit. Over recent years, federal courts in Florida have emerged as a significant forum for these types of suits, particularly in the Middle and Southern Districts of Florida — and the procedural rules governing joinder, service, and jurisdiction in these cases are evolving quickly.

Our Miami litigation team represents both rights holders bringing Schedule A actions and the sellers and businesses named as defendants in them, across trademark, copyright, and design patent claims.

What Is Schedule A Litigation?

A procedural innovation built for anonymous, high-volume online infringement

Schedule A litigation represents a highly specialized form of intellectual property enforcement designed to address the challenges of digital counterfeiting by joining numerous defendants into a single lawsuit. Over recent years, federal courts in Florida have emerged as a significant forum for these types of suits, particularly in the Middle and Southern Districts of Florida. While the phenomenon of counterfeit products has existed for decades, the rise of e-commerce has served as a powerful catalyst for the proliferation of this practice.

What began as a trademark-counterfeiting tool has expanded into copyright and, increasingly, design patent enforcement — each of which brings its own procedural rules to the same basic playbook, and, as discussed in §§ 5–8 below, each of which offers a meaningfully different set of defenses depending on which body of law the plaintiff invokes.

The Schedule A Playbook

How these cases are built, from complaint to asset freeze

In a typical Schedule A action, the plaintiff initiates proceedings by filing a complaint that names the defendants by their marketplace usernames or storefront IDs, which are cataloged on an attached exhibit designated as “Schedule A.” The plaintiff tends to supplement it with a motion to seal to avoid defendants obtaining advanced warning that might prompt them to transfer funds or destroy records. The filing is usually accompanied by an ex parte motion for a temporary restraining order (TRO). Within this motion, a plaintiff can request the freezing of the defendants' assets, expedited discovery, a restraining provision barring the sale of the alleged infringing products, and takedown relief.

This motion must be supported by the four equitable factors of Federal Rule of Civil Procedure (FRCP) 65, requiring the plaintiff to demonstrate: (1) a substantial likelihood of success on the merits, (2) that irreparable injury will be suffered if the relief is not granted, (3) that the threatened injury outweighs the harm the relief would inflict on the defendant, and (4) that the entry of the relief would serve the public interest. The plaintiff will usually also file a motion for alternative service, asking the court to authorize service through email or platform messaging instead of traditional service — an area of increasingly aggressive judicial scrutiny, discussed in detail in § 6 below.

A key procedural gate is defendant joinder under FRCP 20, which requires that the right to relief arise from the same transaction, occurrence, or series of transactions, and share a common question of law or fact. The plaintiff must show the sellers' conduct is based on the same “operative facts” or “aggregate core facts” — merely alleging that multiple defendants infringed the same intellectual property is insufficient. Under FRCP 21, courts may at any time add, drop, or sever any party or claim. As discussed in § 7, patent-based Schedule A cases face an even stricter, statutory version of this same gate under 35 U.S.C. § 299.

Jurisdictional Thresholds

Screenshots, storefronts, and specific personal jurisdiction

Under FRCP 4(k)(1), specific personal jurisdiction is established using screenshots of the defendants' storefronts to show purposeful direction toward the forum state. These screenshots must document a commercial transaction targeting Florida or Florida consumers, such as an order confirmation, payment page, or delivery photo of an infringing product shipped to the forum. Courts routinely exercise specific jurisdiction over foreign defendants targeting U.S. consumers. For instance, in NBA Properties v. HANWJH, 46 F.4th 614 (7th Cir. 2022), the Seventh Circuit held that a single sale into the forum state supports jurisdiction, while the Second Circuit in Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158 (2d Cir. 2010), ruled that shipping an item, combined with business activity, suffices. The initiation of a single transaction can therefore be enough to establish personal jurisdiction — though, as one recent commentary on the busiest Schedule A patent venue in the country has observed, courts do not always extend the same generosity when an accused seller turns the tables and sues the rights holder in the same forum, a genuine asymmetry worth raising where relevant.

The plaintiff must also show that the defendants reside outside the United States to justify alternative service under FRCP 4(f)(3). This foreign location can be established via screenshots of contact information or foreign-based email domains. In the Middle District of Florida, screenshot exhibits must be of sufficient quality and limited in length per defendant.

Injunctive Relief & the Asset Freeze

The ex parte TRO is the central procedural tool in these cases

Courts draw authority from the All Writs Act, which grants inherent powers to issue TROs and preliminary injunctions to preserve their jurisdiction. Under FRCP 65(b), a TRO may issue without notice only if specific facts in an affidavit or verified complaint show immediate, irreparable injury before the defendant can be heard, and the attorney certifies in writing the notice efforts made or the reasons notice is unnecessary. To justify ex parte proceedings, plaintiffs submit declarations illustrating that online sellers routinely dissipate assets upon receiving notice. However, these declarations must be specific enough to satisfy the rule, not mere conclusory statements. In Price v. The Individuals, Partnerships, and Unincorporated Associations Identified on Schedule A, No. 8:25-cv-3398-KKM-AEP (M.D. Fla. Feb. 4, 2026), the court clarified that providing a trademark registration is insufficient where plaintiffs fail to provide evidence of the mark in the context of the litigation that could rise to a likelihood of success on the merits.

If the TRO is granted, the plaintiff can move to enjoin the defendant from selling the alleged counterfeit products, request identifying information from third-party financial institutions or marketplace platforms, and request the asset freeze from those third parties. Once notified, these third parties are bound under Rule 65 if they act in active concert or participation with the defendant. To preserve due process, affected account holders may petition the court to modify the restraint. Once accounts are frozen, the plaintiff must serve the defendants electronically under FRCP 4(f)(3) — a step that stands independently of Rules 4(f)(1) and 4(f)(2), meaning prior attempts at traditional service are not required, at least where a defendant's physical address remains genuinely unknown.

A TRO is capped at 14 days but may be extended for an additional 14 days upon a showing of good cause under Fed. R. Civ. P. 65(b)(2). The TRO can eventually convert to a preliminary injunction after the 28-day window, which remains in place for the duration of the litigation. The preliminary injunction stage does require notice and a hearing where the defendant can appear and contest the allegations — the first real opportunity most defendants get to be heard. Under M.D. Fla. L.R. 6.02(a)(2), a motion for a preliminary injunction must include as an attachment each paper on which the plaintiff relies.

Substantive Claims: Trademark, Copyright & Design Patent

The same playbook, applied to three different bodies of law

Trademark-based Schedule A cases rest on claims of federal trademark infringement under 15 U.S.C. § 1114, as well as false designation of origin and dilution under 15 U.S.C. § 1125(a) and (c). These actions are designed for clear-cut counterfeiting where infringement is readily apparent, not for complex disputes between legitimate businesses requiring deep factual development. Copyright infringement claims under 17 U.S.C. § 501 may also be raised when a defendant violates any of the exclusive rights of the copyright owner, such as reproducing a copyrighted product photograph on an online listing. While online marketplaces have no proactive duty to monitor sellers on their platforms, they must still comply with the Digital Millennium Copyright Act (DMCA) and the INFORM Consumers Act.

A third and increasingly common basis is design patent infringement under 35 U.S.C. § 271, most often asserted against sellers of a knock-off product that copies a patented ornamental design. Design patent Schedule A cases carry a signature remedy unavailable in the trademark or copyright context: under 35 U.S.C. § 289, a design patent owner may recover the infringer's total profits from the infringing product — not merely a reasonable royalty or an apportioned share — which can make design patent Schedule A litigation especially attractive to plaintiffs, and especially significant to defendants evaluating exposure. As discussed in §§ 7–8 below, design patent Schedule A cases also face the most robust set of procedural defenses of the three claim types, because Congress specifically restricted joinder in patent cases in a way it never did for trademark or copyright claims.

Defending Against Alternative Service Under Rule 4(d) and Rule 4(f)(3)

The fastest-moving area of Schedule A defense right now

Alternative service is the hinge on which the entire Schedule A model turns — without it, a plaintiff cannot convert an ex parte asset freeze into a judgment against an anonymous overseas seller. It is also the area where courts have most sharply tightened scrutiny over the past two years.

Rule 4(d): the waiver route defendants should not overlook

Rule 4(d) imposes a duty on plaintiffs to avoid the unnecessary expense of formal service, and — importantly — that duty applies to defendants subject to service under Rule 4(f) (i.e., defendants abroad), not just domestic defendants. In practice, Schedule A plaintiffs rarely attempt a Rule 4(d) waiver request before moving for alternative service, because the entire premise of the ex parte TRO motion is that the defendants' identities and addresses are not yet known. But once expedited discovery unmasks a defendant's verified name and address — which it almost always does, since marketplaces and payment processors maintain registration and tax information on file — that premise weakens considerably, and a defendant has a genuine argument that the plaintiff should be put to the more conventional service process from that point forward.

For a defendant who has already been named and wants to respond without conceding anything, requesting or agreeing to a Rule 4(d) waiver can be a useful tactical option: Rule 4(d)(3) gives a defendant that returns a waiver 60 days from when the request was sent (90 days if the defendant is outside the United States) to respond to the complaint — often considerably longer than the compressed timeline set by a Schedule A TRO and alternative-service order. Critically, Rule 4(d)(5) preserves every defense and objection except the sufficiency-of-service objection itself, so waiving service does not waive personal jurisdiction, venue, or joinder defenses.

Rule 4(f)(3) and the Hague Service Convention: a rapidly tightening standard

This creates what practitioners have called the “expedited discovery trap” for Schedule A plaintiffs: the same expedited discovery order that unmasks a defendant's identity and freezes its assets typically also reveals a verified physical address on file with the marketplace or payment processor — and the moment that address becomes known, the argument that service must proceed through the Hague Convention's formal channels (rather than email or platform messaging) becomes considerably stronger. Courts remain split on some edge cases — some have reasoned that an Article 10 objection to “postal channels” does not necessarily reach email, since the Convention (written in 1965) never contemplated it — but the trend after Smart Study is toward treating email service on Chinese defendants as improper once an address is on file.

What this means for a defendant

• Challenge the sufficiency of alternative service directly, particularly where the plaintiff's own expedited discovery returned a verified physical address before the alternative-service motion was granted or before default was entered.
• Move to vacate a default judgment under Fed. R. Civ. P. 60(b)(4) where service was improper — a judgment entered on defective service is considered void, and courts have held that motions to vacate on this ground remain timely well after the fact, so long as they are brought within a reasonable interval after the plaintiff attempts to actually execute on the judgment or sweep frozen assets.
• Preserve the argument even while negotiating. Participating in preliminary settlement discussions to try to free frozen funds does not, on its own, waive an objection to defective service.
• Consider a Rule 4(d) waiver as an affirmative tool, not just a defense — it can convert a compressed TRO-driven response deadline into the standard 60- or 90-day window without giving up jurisdiction, venue, or joinder arguments.

Improper Joinder in Patent-Based Schedule A Cases: 35 U.S.C. § 299

Congress already wrote the misjoinder defense into the statute

The America Invents Act of 2011 added 35 U.S.C. § 299 specifically to stop the practice of suing large numbers of unrelated defendants in a single patent case — the same practice that defines the Schedule A model. Under § 299, accused infringers may be joined as defendants in one patent action only if (1) a right to relief is asserted against them arising out of the same transaction, occurrence, or series of transactions relating to the making, using, importing, offering for sale, or selling of the same accused product or process, and (2) questions of fact common to all defendants will arise in the action. Section 299(b) goes further, expressly providing that accused infringers may not be joined based solely on allegations that they each infringed the same patent.

The practical consequence of a successful § 299 challenge is significant, and it cuts against the entire economic logic of the Schedule A model: the court will either dismiss the misjoined defendants without prejudice or sever their claims into separate actions, and in the latter case, the plaintiff must pay a separate filing fee for each severed action. Because these mass suits are often only cost-effective at scale, a well-supported misjoinder motion — even one that only succeeds for a single defendant — can eliminate the plaintiff's economic incentive to continue pursuing that defendant at all.

Motions to Dismiss in Patent Schedule A Cases

Beyond misjoinder: venue, pleading sufficiency, and validity

Improper venue under 28 U.S.C. § 1400(b)

Patent venue is governed by its own statute, not the general venue statute that applies to trademark and copyright claims — a distinction that matters a great deal in Schedule A practice:

Because most Schedule A defendants genuinely are located outside the United States, the alien-venue rule usually forecloses a venue challenge for them specifically. But Schedule A complaints sometimes sweep in domestic resellers, drop-shippers, or fulfillment operations alongside the foreign sellers — and for those defendants, TC Heartland and its progeny remain a real, underused defense that has no counterpart in the trademark or copyright context.

Pleading sufficiency

Design patent Schedule A complaints frequently rely on generic, non-particularized allegations applied uniformly across dozens of defendants — precisely the kind of boilerplate pleading that both the plausibility standard of Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly and the joinder analysis above are skeptical of. Where a complaint does not plausibly allege that a specific defendant's specific product embodies each element of the claimed design, a motion to dismiss for failure to state a claim is worth evaluating alongside the misjoinder motion.

Ownership, standing, and invalidity

As with any patent case, a defendant can challenge whether the plaintiff actually owns the asserted patent through a clean chain of title, and can raise invalidity defenses — anticipation, obviousness, or, for a design patent, that the claimed design is dictated by function rather than genuinely ornamental. Because the PTAB's ex parte reexamination and inter partes review proceedings remain available regardless of how a district court case proceeds, a defendant facing a serious, high-value design patent Schedule A claim should evaluate a PTAB validity challenge as a parallel track alongside any motion to dismiss.

Full detail on IPR, PGR, ex parte reexamination, derivation proceedings, and supplemental examination is available in our Patent Matters page.

Practical Defense Strategy

Efficiency for plaintiffs, and real leverage points for defendants

Schedule A litigation in Florida federal courts represents an efficient procedural framework for addressing widespread online intellectual property infringement through counterfeiting. By utilizing ex parte TROs and alternative electronic service, plaintiffs can disrupt anonymous foreign operations and secure a mechanism for financial recovery. In theory, courts authorize preliminary asset freezes to preserve the availability of final equitable relief, such as an accounting of profits under 15 U.S.C. § 1117(a) for trademark claims or a disgorgement of total profits under 35 U.S.C. § 289 for design patent claims. In practice, permanent equitable relief is rarely recovered on the merits — these cases almost always culminate in default judgments, because foreign-based defendants rarely appear in court, and plaintiffs then pursue statutory damages rather than an accounting. The preliminary asset freeze functions, in most cases, as litigation leverage rather than a mechanism for permanent equitable distribution.

This dual reality — genuine procedural efficiency for legitimate rights holders, balanced against a business model that depends on defendants never appearing — is exactly why Florida's federal courts, like the Northern District of Illinois before them, are beginning to enforce joinder rules, service standards, and evidentiary requirements for screenshots and declarations more rigorously. A defendant who appears promptly, challenges the procedural footing of the case — joinder, venue, service — and only then reaches the merits, is often in a materially stronger position than the Schedule A model was designed to expect.

For a claim-type-by-claim-type overview of first moves and key early questions across patent, trademark, copyright, trade secret, CADRA, and FDUTPA claims, see our Litigation Defense materials; for the enforcement-side counterpart to this practice, see our Litigation & Enforcement materials.

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Our Schedule A Litigation Services Include