UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

NINGBO YONGJIA AIDUO 

AUTO PARTS MANU CO., LTD., 

 Plaintiff, CASE NO. 1:22-cv-24270-DPG 

v. 

THE INDIVIDUALS, PARTNERSHIPS 

AND UNINCORPORATED ASSOCIATIONS 

IDENTIFIED ON SCHEDULE “A”, 

 Defendants. 

________________________________________ 

MOTION TO INCREASE BOND 

Defendant WAXMAN SALES LLC, a Texas limited liability company d/b/a BirdRock 

Home (“BirdRock Home”), by and through undersigned counsel, and pursuant to Rule 65, Federal 

Rules of Civil Procedure, and the Orders entered by this Court (ECF Nos. 14, 35, 44) files this 

motion to increase the amount of the bond posted by Plaintiff Ningbo Yongjia Aiduo Auto Parts 

Manu Co., LTD. (“Plaintiff”) in connection with the issuance of the Temporary Restraining Order 

(“TRO”) (ECF No. 14), and as modified pursuant to ECF No. 35 and ECF No. 44, and in support 

thereof states as follows: 

I. Preliminary Statement 

BirdRock Home moves to increase the bond from $10,000 to $300,000 because doing so is 

in the interest of justice. In this extraordinary action, Plaintiff was permitted to seize prejudgment 

nearly three quarters of a million dollars of BirdRock Home’s funds without any notice to BirdRock 

Home and without a single finding that BirdRock Home had done anything wrong. This 

extraordinary action was permitted because Plaintiff and Plaintiff’s counsel certified that they had 

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conducted substantial due diligence to confirm that BirdRock Home was a foreign counterfeiter 

when in fact a simple internet search would have revealed that BirdRock Home is a Texas based 

American competitor of the Plaintiff whose patent predates Plaintiff’s patent. The entry of the TRO 

against BirdRock Home was wrongful, and caused BirdRock Home to incur significant damages 

well-above the $10,000 bond amount. As such, the bond must be increased. 

II. Factual Background

Plaintiff is a Chinese entity that apparently manufactures and sells a large number of 

consumer products, including snow brushes. See generally http://www.aidocarcare.com/eproducts/products_75_01.html (webpage showing Plaintiff’s “Winter Series” of 

snow and ice brushes, scrapers, and related products). In this action, Plaintiff claimed the 

defendants were all foreign companies that were violating its patent rights by counterfeiting its 

products, and that an ex parte injunction seizing the defendants funds at Amazon was the only way 

to stop this wrongful behavior. Despite verifications made by Plaintiff (Rule 65(b)(1)(A)) and 

certifications made by counsel in connection with moving for the TRO (Rule 65(b)(1)(B)) that it 

conducted significant due diligence to ensure that no American companies were caught up in this 

injunction action, it is clear that Plaintiff exercised little to no due diligence in locating or verifying 

the identity of BirdRock Home before including it on its list of defendants.. 

BirdRock Home sells competing snow brushes. BirdRock Home has its home office in 

Austin, Texas and has product warehouses (i.e., fulfillment centers) in Reno, Nevada; Louisville, 

Kentucky; and Breinigsville, Pennsylvania. Raisbeck Decl. ¶ 51

. It does not have any places of 

business located in Florida, nor does it have any employees or contractors in Florida. BirdRock is 

 

1 Declarations of Controller of Waxman Sales, Kendall Reisbeck and CEO of Waxman Sales, Adam Waxman, are 

attached hereto as Exhibits A and B respectively. 

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registered with the Texas secretary of state and easily identifiable as a Texas company. 

BirdRock Home sources, develops and sells an extensive array of high quality consumer 

products for the home, garden, automobile, and garage. Many of these products may be viewed 

on BirdRock Home’s public-facing website at https://www.BirdRockhome.com/. BirdRock Home 

operates several storefronts on Amazon.com, including storefronts called “BIRDROCK HOME 

Store” and “Snow MOOver Store.” 

On December 31, 2023, Plaintiff filed this action against approximately 301 “Schedule A” 

defendants. Defendant BirdRock Home is listed on Schedule A as Def. No. 56. Paragraph 16 of 

the complaint alleges that venue is proper under 28 U.S.C. § 1400 because all defendants are alleged 

to be “aliens.” 

On January 12, 2023, Plaintiff filed its motion for an ex parte temporary restraining order 

against the accused products of all 301 defendants, arguing among other things that “[b]ased on 

Defendant’s e-commerce stores, there is good reason to suspect that Defendants are all residing 

outside of the United States and/or redistribute products from sources outside the United States.” 

ECF No. 10 at pp. 12-13. Plaintiff also argued that ex parte relief was necessary because 

“Defendants can easily transfer, conceal and dissipate assets or modify ecommerce data within 

minutes after obtaining notice of this action leaving Plaintiff with irreparable injury and the Court 

with limited ability to grant relief.” Plaintiff based its TRO arguments on a declaration from 

Plaintiff’s counsel Humberto Rubio. Rubio Decl. ¶¶ 9, 11 (ECF No. 10-3). 

On January 18, 2023, and in reliance upon Plaintiff’s representations and arguments, the 

Court issued the TRO. 

Around January 24, 2023, BirdRock Home learned that a third party had apparently 

submitted patent infringement complaints to Amazon.com against two of its snow brushes. No other 

Case 1:22-cv-24270-DPG Document 55 Entered on FLSD Docket 04/07/2023 Page 3 of 9
information, such as the name of the Plaintiff of the identity of the allegedly infringed patents, was 

provided. 

On Friday, February 3, 2023, BirdRock Home learned from Amazon.com that it had been 

named as defendants in this lawsuit, and that as a result of this Court’s TRO, Amazon.com was 

withholding funding in the amount of $785,115.03. Waxman Decl. ¶ 13. BirdRock Home 

immediately called and emailed plaintiff’s counsel but received no response thus requiring 

BirdRock Home to retain the undersigned law firm. Waxman Decl. pg.4, ¶¶ 14-15. 

The withholding of $785,115.03 was a significant threat to the financial health of BirdRock 

Home. Accordingly, it was necessary for BirdRock Home to retain the undersigned law firm. On 

the evening of Sunday, February 5, 2023, BirdRock Home’s counsel began to appear in this case 

(ECF Nos. 19, 20), and BirdRock Home sent a letter, demanding that Plaintiff retract the restraining 

order that Plaintiff had submitted to Amazon.com. Conceding that Plaintiff had no good faith 

claims against BirdRock Home, Plaintiff on February 6, 2023 filed a nonconsensual Notice of 

Dismissal (ECF No. 21, 22) as to BirdRock Home and two other defendants. 

Later that day, BirdRock Home filed an Unopposed Motion to Modify the Ex Parte 

Temporary Restraining Order (ECF No. 26), which the Court granted the next day on 

February 7, 2023 (ECF No. 29). 

Unfortunately, while Amazon.com later indicated that it was no longer withhold the 

previously frozen funds of $785,115.03, it took several days, and an extreme amount of effort on 

the part of various BirdRock Home personnel, in order for BirdRock Home to finally receive the 

withheld funds that Amazon.com had been withholding. 

II. Legal Standard 

The bond requirement for a temporary restraining order is intended “to protect enjoined 

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parties from losses that result from improvidently granted injunctions.” Piambino v. Bailey, 757 F. 

2d 1112, 1143 (11th Cir. 1985) (citing Atomic Oil Co. v. Bardahl Oil Co., 419 F. 2d 1097, 1101 

(11th Cir. 1969)). “The purpose of [the bond] provision is to enable a restrained or enjoined party 

to secure indemnification for the costs ... and pecuniary injury that may accrue during the period in 

which a wrongfully issued equitable order remains in effect.” 11A Wright & Miller, supra, § 

2954 (footnote omitted). 

The amount of security bond required under Rule 65 is a matter in the discretion of the 

Court. BellSouth Telecomms, Inc. v. MCIMetro Access Transmission Servs., LLC, 425 F. 3d 964, 

971 (11th Cir. 2005). Thus, this Court may increase the bond upon application in the interest of 

justice. See ECF Nos. 14, 35, 44 (noting that “In the Court’s discretion, the bond may be subject to 

increase should an application be made in the interest of justice.”). 

Here, Plaintiff was only required to post a bond in the amount $10,000.00. This amount, 

however, is woefully inadequate and fails to protect BirdRock Home from its damages which total 

in excess of $700,000. As such an increase in the amount of the bond is warranted. 

III. ARGUMENT 

Despite bringing an action against more than 300 defendants and obtaining a restraining 

with the effect of potentially freezing millions of dollars in assets, Plaintiff was only required to 

post a bond of $10,000.00. This nominal bond amount was likely issued because the Court was led 

to believe that all defendants were “residing and/or operating outside of the United States,” (ECF 

No. 10 at pg. 12) that could “easily transfer, conceal and dissipate assets or modify ecommerce data 

within minutes after obtaining notice” of the Complaint. Id. at pg. 13. Thus the Court was given 

the impression that defendants were not only unlikely to appear in this matter but also substantially 

likely to be infringing on Plaintiff’s alleged patent. See ECF No. 14 at pg. 4 (In which the Court 

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notes, based on Plaintiff’s false assertions, that “Defendants can easily and quickly change the 

ownership or modify domain registration and e-commerce store account data and content, change 

payment accounts, redirect consumer traffic to other seller identification names, and transfer assets 

and ownership of Seller IDs thereby thwarting the Plaintiff’s ability to obtain meaningful relief.”) 

However, if BirdRock Home’s situation is any indication, nothing could be further from the truth. 

The truth of the matter is, Plaintiff performed little to no due diligence in determining what 

entities were foreign infringers. A basic Google search would have revealed that BirdRock Home 

is an Austin, Texas-based company, and not a foreign counterfeiter. In fact, even a cursory 

examination of the so-called “Snow Brush TRO Evidence” that Plaintiff itself submitted to this 

Court for BirdRock Home would have shown that BirdRock Home is based in Austin, Texas. 

Despite this easily identifiable information, Plaintiff misrepresented to this Court that BirdRock 

Home was a Chinese counterfeiter, and then used this misrepresentation to induce this Court to 

seize, ex parte, BirdRock Home’s monies and enjoin its products. 

Plaintiff’s actions against BirdRock Home are so utterly lacking in pre-suit investigation 

that it is unlikely that BirdRock Home is an outlier. It is more likely that many other defendants 

should have never been included in this action, and, as such, the amount of the bond is abysmally 

low. Indeed, the current bond does not even account for BirdRock Home’s damages. As such, it 

must be increased. 

BirdRock Home has suffered significant damages as a result of Plaintiff’s submission of the 

TRO to Amazon.com. First, Amazon.com froze over $785,000 in funds rightfully belonging to 

BirdRock Home. The loss of these funds threatened the very financial existence of BirdRock Home. 

After Plaintiff did not promptly respond to an email and phone call from BirdRock Home’s CEO 

Adam Waxman, BirdRock Home had no choice but to retain outside counsel to protect its rights. 

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Plaintiff should reimburse BirdRock Home for its reasonable attorney fees. BirdRock Home has 

suffered (and continues to suffer) lost sales and lost profits flowing from its two snow brush 

products which were enjoined from being sold on Amazon.com. BirdRock Home estimates that is 

lost profits total approximately $99,636 - $124,545. See Waxman Decl. ¶¶ 19-22. BirdRock Home 

has suffered damages by reason of it having to devote the time and resources of its personnel in 

order to address issues stemming from this lawsuit, including the real possibility that it would be 

forced to carry on business for an extended period of time without the benefit of the $785,000 funds 

that Plaintiff caused Amazon.com to freeze. BirdRock Home estimates these miscellaneous 

damages to be in an amount $21,245. Id. ¶¶ 23-24. 

IV. Request for Hearing 

Pursuant to Local Rule 7.1(b)(2), BirdRock Home requests oral argument and a hearing on 

the subject matter of this motion. Oral argument would be helpful to the Court because of the 

number and relative complexity of the factual and legal issues involved, including patent 

infringement and validity issues. BirdRock Home estimates the time required for argument to be 

60 minutes. 

V. Conclusion 

Plaintiff’s lack of due diligence is completely inexcusable. Of course, parties such as 

Plaintiff have no incentive to perform due diligence if their only liability is $10,000 to enjoin 300 

different defendants (or approximately $33.33 per defendant), including its American competitors. 

Indeed, the purpose of a bond is to serve as a contract, “by which the court and the applicant agree 

to the bond amount as the price of a wrongful injunction.” Sprint Commc’ns Co. L.P. v. CAT 

Commc’ns Int’l, Inc., 335 F. 3d 235. 240 (3rd Cir. 2003); Black Warrior RiverKeeper, Inc. v. U.S. 

Army Corps of Eng’rs, 297 F.R.D. 633, 635 (N.D. Ala. 2014). A bond that amounts to roughly 

Case 1:22-cv-24270-DPG Document 55 Entered on FLSD Docket 04/07/2023 Page 7 of 9
$33.33 per defendant makes for an illusory contract, the consideration the equivalent of a mere 

peppercorn. 

WHEREFORE, BirdRock Home respectfully requests that this Court enter an Order 

increasing the bond amount from $10,000 to $300,000 and any other and further relief deemed just 

and proper. 

Date: April 7, 2023 Respectfully submitted, 

 K&L GATES LLP 

 Southeast Financial Center 

 200 South Biscayne Boulevard 

 Suite 3900 

 Miami, FL 33131 

 Telephone: (305) 539-3300 

 Facsimile: (305) 358-7095 

 /s/ Jonathan B. Morton 

 Jonathan B. Morton 

 Florida Bar No.: 0956872 

 jonathan.morton@klgates.com

 Rasheem Johnson 

 Florida Bar No.: 1011350 

 rasheem.johnson@klgates.com

 Henry Pogorzelski, pro hac vice 

Stewart Mesher, pro hac vice

 Attorneys for Waxman Sales LLC 

CERTIFICATE OF CONFERRAL 

Pursuant to Local Rule 7.1, the undersigned hereby certifies that on March 21, 2023, 

counsel for BirdRock Home conferred with counsel for Plaintiff and the parties could not agree to 

the relief sought herein. 

/s/ Jonathan B. Morton 

 Jonathan B. Morton 

Case 1:22-cv-24270-DPG Document 55 Entered on FLSD Docket 04/07/2023 Page 8 of 9
CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on April 7, 2023, a true and complete copy of the foregoing was 

electronically filed via CM/ECF system which will send a notice of electronic filing to all Counsel 

of Record. 

 /s/ Jonathan B. Morton 

Jonathan B. Morton 

Case 1:22-cv-24270-DPG Document 55 Entered on FLSD Docket 04/07/2023 Page 9 of 9