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Muhaisen v. Does

United States District Court, D. Colorado

October 10, 2017

JIHAD MUHAISEN and MUHAISEN & MUHAISEN, LLC, a Colorado limited liability company, Plaintiffs,
v.
JOHN AND JANE DOES 1 THROUGH 100, all whose true names are unknown, Defendants.

          PRELIMINARY INJUNCTION

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on that portion of Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction [Docket No. 6] seeking a preliminary injunction. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         The Court held a hearing on plaintiffs' motion for a preliminary injunction on October 10, 2017. Four days before the hearing, plaintiffs sent notice of the hearing to the following email addresses associated with defendants: enough2m2@gmail.com, jshawnjr@gmail.com, M2Lawyersllc@gmail.com. Docket No. 19 at 1. The email notices sent to the first two email addresses were returned as undeliverable. Docket No. 19-2 at 1-2. No attorney or person appeared on behalf of defendants at the hearing or otherwise contacted plaintiffs or the Court regarding the hearing. The Court finds that defendants received notice of the preliminary injunction hearing, but chose not to appear.

         Plaintiff 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.[1] Id. at 6-7, ¶¶ 22, 24, 26, 28. At the hearing on the portion of the motion seeking a temporary restraining order (“TRO”), 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.

         Plaintiffs 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 enough2m2@gmail.com and has an IP address of 178.215.210.219. Id. at 5-6, ¶¶ 14, 20. At the preliminary injunction hearing, plaintiffs' counsel represented that the email address enough2m2@gmail.com has since been disabled. Plaintiffs' counsel further informed the Court that on September 17, 2017, defendants circulated an unknown number of emails containing links to the YouTube videos and other allegedly defamatory content using the email addresses jshawnjr@gmail.com and samraunt@gmail.com; however, plaintiffs believe these are false email addresses. Docket No. 20 at 2.

         On June 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.[2] 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 enough2m2@gmail.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.

         On September 12, 2017, the Court entered an order temporarily enjoining defendants from posting, publishing, or maintaining the following YouTube videos:

https://www.youtube.com/watch?v=GwSr9tHCtsA;
https://www.youtube.com/watch?v=IkyNFqS-hD8;
https://www.youtube.com/watch?v=rrb-7pJKZ3k;
https://www.youtube.com/watch?v=u5DdMOJ-csE.

Docket No. 14 at 6-7. On September 25, 2017, the Court granted a 14-day extension of the temporary restraining order due to ongoing violations by defendants. Docket No. 17 at 2.

         In support of their request for a preliminary injunction, plaintiffs state that defendants have failed to comply with this Court's TRO directing removal of the online libelous content. Docket No. 20 at 1-2. Google has also declined to remove the YouTube videos. Docket No. 16 at 2; Docket No. 16-2 at 1-3; Docket No. 20 at 3-4. Since entry of the TRO, plaintiffs further claim they have become aware of a new website created by defendants, www.JMuhaisen.com, which contains four pages of similar, disparaging content and links to two of the enjoined YouTube videos. Docket No. 16 at 3-4.[3] Plaintiffs state that the new domain name was purchased from www.1and1.com (“1&1 Internet”), a site that offers services similar to www.godaddy.com. Docket No. 16 at 2, ¶ 4. On September 20, 2017, plaintiffs sent the Court's TRO to 1&1 Internet. Docket No. 16 at 3, ¶ 12. As of October 9, 2017, however, 1&1 Internet had not responded to plaintiffs regarding the order, and both the YouTube videos and the new website remained available online. Docket No. 20 at 4, ¶¶ 6-8.

         To succeed on a motion for a preliminary injunction, 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 ...


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