United States District Court, D. Colorado
JIHAD MUHAISEN and MUHAISEN & MUHAISEN, LLC, a Colorado limited liability company, Plaintiffs,
JOHN AND JANE DOES 1 THROUGH 100, all whose true names are unknown, Defendants.
TEMPORARY RESTRAINING ORDER
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion for a
Temporary Restraining Order and Preliminary Injunction
[Docket No. 6]. The Court has jurisdiction pursuant to 28
U.S.C. § 1331.
MOTION FOR TEMPORARY RESTRAINING ORDER
Jihad Muhaisen (“Muhaisen”) is a licensed
attorney in the State of Colorado and a founding partner of
plaintiff Muhaisen & Muhaisen, LLC. Docket No. 1 at 3,
¶ 7. In their fourth claim for relief, libel per se,
plaintiffs allege that defendants, under the user name of
Enough 2M2, have posted four libelous YouTube videos
concerning them. Docket No. 6 at 4-5, ¶¶ 1-5. The
YouTube videos accuse Muhaisen of domestic violence, assault,
homicide, drug use, and fraudulent legal
practices. Id. at 6-7, ¶¶ 22, 24,
26, 28. At the TRO hearing, plaintiffs' counsel
represented that the videos also refer to Muhaisen &
Muhaisen, LLC. Plaintiffs claim that the statements contained
in the YouTube videos are false. Id., ¶¶
23, 25, 27, 29.
have attempted to discover defendants' identities by
serving a subpoena on Google, id. at 5, ¶ 10,
which owns YouTube. The subpoena requested all identifying
information associated with the account that posted the
relevant YouTube videos. Id., ¶ 11. Plaintiffs
have been unable to identify defendants other than to
determine that Enough 2M2 uses the email address of
firstname.lastname@example.org and has an IP address of 126.96.36.199.
Id. at 5-6, ¶¶ 14, 20.
27, 2017, plaintiffs filed this lawsuit alleging six claims
for relief: (1) violation of the Lanham Act, 15 U.S.C. §
1125(a); (2) violation of the Colorado Consumer Protection
Act; (3) common law business disparagement under Colorado
law; (4) libel per se under Colorado law; (5) invasion of
privacy by intrusion under Colorado law; and (6) invasion of
privacy by appropriation under Colorado law. Docket No. 1 at
7-11, ¶¶ 40-73. On September 1, 2017, plaintiffs
filed a motion for a preliminary injunction and temporary
restraining order based on the fourth claim for
relief. See Docket No. 6 at 10-12
(discussing plaintiffs' likelihood of success on the
libel per se claim). On September 12, 2017, the Court held a
hearing on that portion of the motion seeking a temporary
restraining order. Two days before the hearing, plaintiffs
sent notice of the hearing to email@example.com, the only
known means to contact defendants. Docket No. 12-1. No
attorney or person appeared on behalf of defendants at the
TRO hearing or otherwise contacted plaintiffs or the Court
regarding the hearing.
succeed on a motion for temporary restraining order, the
moving party must show (1) a likelihood of success on the
merits; (2) a likelihood that the movant will suffer
irreparable harm in the absence of preliminary relief; (3)
that the balance of equities tips in the movant's favor;
and (4) that the injunction is in the public interest.
RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208
(10th Cir. 2009) (citing Winter v. Natural Resources
Defense Council, Inc., 555 US. 7, 20 (2008)); see
Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010)).
“[B]ecause a preliminary injunction is an extraordinary
remedy, the right to relief must be clear and
unequivocal.” Beltronics USA, Inc. v. Midwest
Inventory Distribution, LLC, 562 F.3d 1067, 1070 (10th
Cir. 2009) (quoting Greater Yellowstone Coalition v.
Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003)) (internal
quotation marks omitted). Granting such “drastic
relief, ” United States ex rel. Citizen Band
Potawatomi Indian Tribe of Oklahoma v. Enter. Mgmt.
Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir.
1989), “is the exception rather than the rule.”
GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir.
have shown a likelihood of success on the merits. A statement
is libelous per se if “(1) the defamatory meaning is
apparent from the face of the publication without the aid of
extrinsic proof; and (2) the statement is specifically
directed at a particular person.” Han Ye Lee v.
Colorado Times, Inc., 222 P.3d 957, 961 (Colo.App.
2009). Traditionally, statements related to “a criminal
offense” or “a matter incompatible with an
individual's business, trade, profession, or
office” constitute slander per se. Gordon v.
Boyles, 99 P.3d 75, 79 (Colo.App. 2004) (citing
Restatement (Second) of Torts § 570). The YouTube videos
contain allegations that Muhaisen has engaged in criminal
conduct and committed fraud in the course of his legal
practice. See Docket No. 6 at 6-7, ¶¶ 22,
24, 26, 28. Mr. Muhaisen has submitted declarations from
himself and others that he has never engaged in such conduct.
See Docket Nos. 6-1, 6-2, 6-3. The Court finds that
the relevant statements contained in the four YouTube videos
constitute libel per se because the defamatory meaning is
apparent from the face of the publication and the videos are
directed at plaintiffs.
the Court finds that a statement is libelous per se,
plaintiffs must prove that (1) the statement was published;
(2) the statement caused actual damages; (3) the statement
was false; and (4) the defendant acted with reckless
disregard as to falsity. Denver Publ'g Co. v.
Bueno, 54 P.3d 893, 899 n.8 (Colo. 2002); see
also Colo. Jury Inst. 22:1. The Court finds that the
YouTube videos have been published. In addition, plaintiffs
have presented numerous pieces of evidence to suggest that
the claims made in the videos are false and that defendants
do not have a basis for alleging that plaintiffs engaged in
improper or criminal conduct. See, e.g., Docket No.
6-1 at 2-3, ¶¶ 9-13. With respect to damages,
Muhaisen is not required to prove actual damages because he
is a private person. Denver Publ'g Co., 54 P.3d
at 900. The Court finds that Muhaisen & Muhaisen LLC has
provided proof demonstrating that it has suffered actual
damages. Plaintiffs' counsel represented at the TRO
hearing that the YouTube videos appear in internet search
results for the law firm and that colleagues have asked
plaintiffs about the YouTube videos and their content.
See also Docket No. 6-1 at 4, ¶ 21
(“Colleagues have inquired about [the videos] and their
content.”). Plaintiffs' counsel further represented
that a number of law firms compete with plaintiffs in the
area of immigration law and that plaintiffs operate in a
segment of that market where potential clients are sensitive
to the allegations contained in the YouTube videos.
Plaintiffs' counsel represented that, as a consequence of
operating in a competitive environment, plaintiffs have lost
business and are likely to lose future business to some of
their competitors. Plaintiffs have provided adequate offers
of proof to support their claim that plaintiff Muhaisen &
Muhaisen LLC suffered actual damages. Accordingly, the Court
finds that plaintiffs have demonstrated a likelihood of
success on the merits on their fourth claim for relief.
Court finds that plaintiffs have shown that, in the absence
of injunctive relief, they will suffer irreparable harm. At
the TRO hearing, plaintiffs presented offers of proof that
the YouTube videos appear when prospective clients search for
Muhaisen or his law firm. As an attorney, Mr. Muhaisen's
legal practice depends in part on his reputation. See
Keohane v. Stewart, 882 P.2d 1293, 1298 (Colo. 1994)
(“[D]efamatory statements are so egregious and
intolerable because the statement destroys an
individual's reputation: a characteristic which cannot be
bought, and one that, once lost, is extremely difficult to
restore.”). The videos additionally interfere with
plaintiffs' ability to advertise their services and, in
light of the competitive nature of the immigration legal
market, reduce the business available to plaintiffs.
Court finds that the balance of equities tips in
plaintiffs' favor. Plaintiffs have demonstrated that they
will suffer harm should defendants be permitted to continue
publishing the libelous statements. Defendants have no
legitimate interest in publishing statements that are made
with reckless disregard for the truth and that have the
primary purpose of damaging plaintiffs' reputations.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 340
(1974)(“[T]here is no constitutional value in false
statements of fact.”).
Court also finds that the injunction is in the public
interest. The public has a substantial “interest in
encouraging and fostering vigorous public debate.”
Keohane, 882 P.2d at 1298. However, “[n]either
the intentional lie nor the careless error materially
advances society's interest in ‘uninhibited,
robust, and wide-open' debate on public issues.”
Gertz, 418 U.S. at 340 (quoting New York Times
Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Because the
Court finds that plaintiffs have demonstrated a likelihood of
proving that defendants have made libelous statements with
reckless disregard for the truth, the temporary restraining
order is in the public interest.
Court finds that no bond is necessary pursuant to
Fed.R.Civ.P. 65(c) because it does not appear possible to
quantify the damages that defendants may suffer as a result
of being required to take down the YouTube videos.