United States District Court, D. Colorado
ORDER DENYING TEMPORARY RESTRAINING ORDER
William J. Martinez, United States District Judge
Plaintiff
SEBO America, LLC (“SEBO”) seeks a temporary
restraining order (“TRO”) enjoining Defendants
DOES 1-10 (“Doe Defendants”), their officers,
agents, employees, successors, and assigns, and those working
with or under the authority of the Doe Defendants using the
name USA Buyer on Amazon.com from infringing on SEBO's
trademarks. (ECF No. 14 at 1.) As explained below, SEBO's
Motion for a Temporary Restraining Order (the
“Motion”) suffers procedural and substantive
defects, and the Court thus denies the Motion.
A court
may issue a TRO without written or oral notice to an adverse
party only if “specific facts in an affidavit or a
verified complaint clearly show that immediate and
irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition”
and “the movant's attorney certifies in writing any
efforts made to give notice and the reasons why it should not
be required.” Fed.R.Civ.P. 65(b). In addition,
D.C.COLO.LCivR 65.1 requires that a motion for a TRO be
accompanied by a certificate of counsel describing either the
actual notice given to an opposing party or the efforts made
to provide notice.
The
purpose of a TRO is to “preserv[e] the status quo and
prevent[] irreparable harm just so long as is necessary to
hold a [preliminary injunction] hearing, and no
longer.” Granny Goose Foods, Inc. v. Bhd. of
Teamsters & Auto Truck Drivers Local No. 70 of Alameda
Cnty., 415 U.S. 423, 439 (1974). To obtain a TRO, a
party must satisfy the same elements it would need to satisfy
for a preliminary injunction. See NRC Broad. Inc. v. Cool
Radio, LLC, 2009 WL 2965279, at *1 (D. Colo. Sept. 14,
2009). Thus, a party seeking a TRO must show: (1) a
likelihood of success on the merits, (2) a threat of
irreparable harm, which (3) outweighs any harm to the
non-moving party, and that (4) the injunction would not
adversely affect the public interest. See, e.g.,
Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir.
2012). The moving party bears the burden of persuasion as to
each of the four elements of injunctive relief. Heideman
v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir.
2003); Kikumura v. Hurley, 242 F.3d 950, 955 (10th
Cir. 2001).
The day
after the Motion was filed, SEBO filed a declaration of its
Chief Executive Officer John van Leuven explaining SEBO's
trademarks and the Doe Defendants' violations thereof
(ECF No. 18), as well as a declaration by SEBO's counsel
explaining why service of process had not been effected on
the Doe Defendants (ECF No. 17). Pursuant to the
undersigned's Revised Practice Standards, exhibits to a
motion must be filed on the same calendar day as the motion
and may be summarily stricken for failure to comply.
See WJM Revised Practice Standard III.A.3. The Court
will therefore not consider the declarations.[1] As discussed
below, the Court's decision not to consider the
declarations is not dispositive of the Motion because the
Motion also fails on substantive grounds.
The
Motion is procedurally deficient because, at the time the
Motion was filed, SEBO failed to comply with Rule 65 or this
District's local rules for entry of a TRO without notice
to the defendant. SEBO's complaint is not verified nor
are specific facts supporting a TRO set forth in an affidavit
attached to the Motion. See Fed. R. Civ. P. 65(b).
Nor does counsel set forth in a certificate attached to the
Motion his efforts to provide notice to the Doe Defendants.
D.C.COLO.LCivR 65.1. The Court could deny the Motion on this
ground alone. See May v. U.S. Bank, N.A., 2013 WL
3200473, at *2 (D. Colo. June 24, 2013); Myers v. Wells
Fargo Bank, N.A., 2016 WL 3676800, at *1 (W.D. Okla.
July 6, 2016).
Moreover,
even if SEBO's Motion were not procedurally deficient or
SEBO's late-filed declarations cured the procedural
deficiencies, SEBO merely states that it has and will suffer
irreparable harm absent a TRO, but does not detail the harm
or explain why the harm is irreparable. (ECF No. 14 at 2-3.)
See NRC Broadcasting, 2009 WL 2965279 at *1
(“a party seeking a temporary restraining order also
must demonstrate clearly, with specific factual allegations,
that immediate and irreparable injury will result absent a
temporary restraining order.”). In addition, the Motion
fails to address, much less show, a likelihood of success on
the merits, that the balance of equities weigh in its favor,
or that the injunction is in the public interest. See
May, 2013 WL 3200473, at *2. In particular, SEBO fails
to justify why it is appropriate and equitable to enjoin the
activities of persons unknown to SEBO and the Court. “A
court does not have the power to enjoin the behavior of the
world at large . . . [and] as a general rule, the federal
courts do not favor the naming of ‘John Doe'
defendants.” Joel v. Various John Does, 499
F.Supp. 791, 792 (E.D. Wisc. 1980). The Court finds that SEBO
had not carried its burden of persuasion as to each of the
elements of injunctive relief. See Heidman, 348 F.3d
at 1189.
Because
SEBO's Motion is procedural deficient and SEBO fails to
carry its burden to establish the appropriateness of a TRO,
the Court DENIES WITHOUT PREJUDICE SEBO's Motion for a
Temporary Restraining Order (ECF No. 14). SEBO's claims
remain pending before this Court for adjudication in the
normal course.
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Notes:
[1] This is not the first time in the
short tenure of this case that SEBO has filed a motion and
subsequently filed supporting materials. (See, e.g.,
ECF No. 3 (Motion for Leave to Seek Third Party Discovery
filed February 25, 2019) and ECF No. 15 (Brief in
Support of Motion for Leave to Seek Third Party Discovery
filed March 11, 2019).) The Court expects that SEBO will in
the future file any motions and documents in support thereof
...