DR Distributors, LLC v. 21 Century Smoking, Inc.

            IN THE UNITED STATES DISTRICT COURT                          
           FOR THE NORTHERN DISTRICT OF ILLINOIS                         
                      WESTERN DIVISION                                   

DR DISTRIBUTORS, LLC,                                                    

        Plaintiff-Counterdefendant,                                      

              v.                                                         

21 CENTURY SMOKING, INC., and                                            
BRENT DUKE,                             No. 3:12-cv-50324                

      Defendants-Counterclaimants,    HON. IAIN D. JOHNSTON              
              v.                                                         

CB DISTRIBUTORS, INC., and CARLOS                                        
BENGOA,                                                                  

               Counterdefendants.                                        

              MEMORANDUM OPINION AND ORDER                               

    After the Court entered action terminating sanctions, Plaintiff filed a post-
judgment motion under Rules 59(e) and 60(b).  Dkt. 631.  In this motion, Plaintiffs 
seek a slew of items of relief, including (1) that the judgment be amended to reflect 
that the judgment is joint and several, (2) injunctive relief, (3) statutory damages, 
and (4) even more attorneys’ fees (this time under the Lanham Act’s “exceptional” 
case provision).  Dkt. 631.1  Defendants responded with a simple, barely two-page 
filing, reasonably stating that there were issues that needed to be resolved and 
requesting a telephonic status “to identify the specific issues to be decided and how 

1 Plaintiff also asked for judgment against one of Defendants’ prior counsel.  In its reply, it 
noted that this prior Defense counsel and it had resolved their issues and that the matter 
was moot.                                                                 
to best proceed.”  Dkt. 648, at 2.  Consistent with the history of this case, Plaintiff 
then filed a five-page reply, adding to their list of demands that default judgment be 
entered in favor of CB Distributors, too.  Dkt. 649, at 4.                

    The Court agrees with Defendants’ counsel that a telephonic status to 
identify specific issues and the best process to address those identified issues is the 
best course of action.  So, the Court sets this action for a telephonic status on June 
5, 2025, at 1:30 p.m.  To orient the parties for this telephonic status, the Court notes 
two related points.                                                       
    First, the Court has already found that Defendants are unable to pay a 

judgment.  Indeed, this was one of the bases Plaintiff asserted to obtain the default 
judgment.  What’s more, in this motion, Plaintiff stipulates that, “Defendants have 
no plan to pay and are unlikely to ever pay the Monetary Judgment already entered 
against them, let alone any judgment on the monetary claims that still need to be 
adjudicated. . .”  Dkt. 649, at 2.  But, undeterred by that reality, Plaintiff seeks 
monetary damages and even more attorneys’ fees.  The attempt to obtain attorneys’ 
fees under the Lanham Act seems particularly peculiar given that Plaintiff must 

establish that the case was “exceptional.”  See Madison St. Prop., LLC v. Marcus 
Corp., No. 20 CV 50471, 

2023 U.S. Dist. LEXIS 160196

, at *3 (Sept. 11, 2023) 
(noting that attorneys’ fees are discretionary when the case is exceptional).  The 
Court assumes Plaintiff will seek attorneys’ fees by asserting that the Defendants 
unreasonably litigated the case.  See Lho Chi. River, L.L.C. v. Rosemoor Suites, 
LLC, 

988 F.3d 962, 964

 (7th Cir. 2021).  Given that the Court has already entered 
default judgment against Defendants for not paying attorneys’ fees for essentially 
unreasonable litigation actions, seeking even more unrecoverable fees for the same 
conduct seems like a poor use of resources for all involved. 
     Second, and relatedly, seeking statutory damages—however calculated— 
against admittedly judgment-proof defendants again seems like a poor use of 
resources.  This is particularly true because Plaintiff will expend even more funds 
in pursuing this fool’s errand.  And if history is any guide, Plaintiff's counsel will 
litigate this issue with full vigor, regardless of the inevitable lack of financial 
recovery.  Whether it is a stone, rock, or turnip one attempts to squeeze to obtain 
blood, the result is the same: You won't get it.  See McCown v. Samsung SDI Co., 
22-cv-976, 

2022 U.S. Dist. LEXIS 209786

, at *6 (C.D. Cal. Nov. 17, 2022) (turnip); 
Bd. of Trs. v. Del Valley Sign Corp., 

945 F. Supp. 2d 649, 651

 (E.D. Va. 2013) 
(stone); Muirhead v. Zucker, 

726 F. Supp. 618, 614

 (W.D. Pa. 1989) (rock). 
     Counsel for the parties are ordered to confer regarding what issues can be 
resolved before the telephonic status. 

Entered: May 19, 2025                      SS     SS 
                                         Iain D. Johnston 
                                         U.S. District Judge