Opinion
Case No. 8:04-cv-591-T-30TBM.
April 16, 2004
ORDER
THIS CAUSE comes before this Court upon Plaintiffs' Motion for Preliminary Injunction (Dkt. #2) and the Playboy Defendants' Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction (Dkt. #28). After close consideration, this Court concludes that the motion should be denied as Plaintiffs have failed to demonstrate that they will suffer irreparable harm.
BACKGROUND
This action arises out of a series of spring break wet t-shirt contests. In March 2001, Plaintiffs traveled to Daytona Beach, Florida, for spring break. At the time, Plaintiffs were less than eighteen years of age. During their spring break trips, Plaintiffs went to the Desert Inn's (the "Hotel") pool deck. During spring break in 2001, the Hotel hired a promoter to conduct contests common to spring break such as "wet t-shirt" contests.
All of the Plaintiffs in this action were seventeen years of age. Two of Plaintiffs were less than a week from their eighteenth birthday when the wet t-shirt contest occurred.
Plaintiffs each entered into at least one wet t-shirt contest. During these wet t-shirt contests, the Plaintiffs were filmed provactively dancing, exposing their breasts, and some of the Plaintiffs allegedly exposed their pubic areas. The materials filed with the motion for preliminary injunction do not make clear if any pubic area exposure by the Plaintiffs occurred on film or was to other women and men on stage or in front of the stage where the contest was held.
Plaintiff Gautreaux entered into several contests and won multiple times.
That film was later compiled as part of multiple videos/DVDs filmed, produced, distributed and/or sold by some of the Defendants: Girls Gone Crazy: Spring Break; Playboy Exposed: All American Girls; Playboy Exposed: Spring Break-Best of; andPlayboy Esposed: Spring Break-Greatest Moments. The first two videos were released for retail distribution on February 19, 2002. The second two videos were released for distribution on October 15, 2002.
The reason for the second set of videos was another similar suit arising from a similar wet t-shirt contest that previously was pending before this Court. See Pippin v. Playboy Entertainment Group, Inc., case no. 8:02-cv-2329-T-17EAJ.
Plaintiffs learned of their inclusion in the videos in or just before June 2003. On June 27, 2003, Plaintiffs sent letters to the Playboy Defendants seeking them to cease and desist from continuing to sell the videos, asserting that the videos constituted child pornography. According to the motion, the Defendants did not cease and desist after receiving notice. The Playboy Defendants broadcasted Plaintiffs' images in August 2003, and Plaintiffs' counsel was able to purchase copies of the videos through December 2003. On March 22, 2003, Plaintiffs filed suit, seeking, in part, injunctive relief. On that same day, Plaintiff sought a preliminary injunction.
Plaintiffs previously had executed declarations that were filed between June 11, 2003, through June 23, 2003, in the Pippin matter.
DISCUSSION
Plaintiffs have failed to demonstrate irreparable harm, which precludes entry of a preliminary injunction. A district court is to grant or deny a preliminary injunction based upon its assessment of four factors, including (1) the likelihood of success; (2) irreparable harm if the injunction is not granted to the Plaintiff; (3) the balance of hardships between the parties; and (4) the public interest. See Int'l Cosmetics Exchange, Inc. v. Gapardis Health Beauty, Inc., 303 F.3d 1242, 1246 (11th Cir. 2002). The Eleventh Circuit has stated that "`[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the `burden of persuasion' as to each of the four prerequisites.'" Siegel v. Lepore, 234 F.3d 1163, 1176 (11th Cir. 2000) (quotingMcDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)).
The Eleventh Circuit has further stated that irreparable harm or injury is "`the sine qua non of injunctive relief.'" Id. (quoting Northeastern Fla. Chapter of the Ass'n of Gen. Contractors v. City of Jacksonville, 896 F.2s 1283, 1285 (11th Cir. 1990)). Without a finding of a likelihood of irreparable injury, preliminary injunctive relief is improper and will be reversed on appeal. See id. In order to qualify as irreparable, harm or injury must be "actual and imminent." Id. In determining whether harm is irreparable, courts consider, as one factor, the delay of the movant in seeking relief. See e.g., Pippin v. Playboy Entertainment Group, Inc., case no. 8:02-cv-2239-T-17EAJ, 2003 WL 21981990, at *2 (M.D. Fla. 2003);Tom Doherty Associates, Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 39 (2d Cir. 1995). As this Court previously stated inPippin, "[d]elay, or too much of it, indicates that a suit or request for injunctive relief is more about gaining an advantage (either a commercial or litigation advantage) than protecting a party from irreparable harm." 2003 WL 21981990, at *2.
This Court concludes that Plaintiffs' claim for preliminary injunctive relief should be denied because: (1) Plaintiffs have failed to demonstrate irreparable harm and explain the over nine month delay in filing suit and seeking a preliminary injunction; and (2) Plaintiffs have failed to produce any evidence that demonstrates that any of the Defendants are continuing to cause them any harm. As to the first argument, Plaintiffs argue that they moved for preliminary injunctive relief at the earliest possible time because of their lawyer's time commitment in prosecutingPippin. If Plaintiffs were truly being irreparably harmed and the lawyers they hired could not quickly protect their rights, Plaintiffs would have and should have hired new lawyers and filed their action after it became clear that Defendants would not cease and desist from further dissemination. The Playboy Defendants are correct that the delay in this case is longer than the delay in Pippin. In Pippin, this Court held that delay was fatal to that plaintiff's claim of irreparable harm. 2003 WL 21981990, at *2. This Court, likewise, concludes that a nine month delay is fatal in this case to Plaintiffs claims of irreparable harm.
In reaching its determinations, this Court has reviewed the declarations filed by Plaintiffs in the Pippin case and also has reviewed the Affidavit of Richard B. Shankman, Esq. There is nothing in the record that shows that Defendants are causing "actual and imminent" harm by continuing to disseminate these videos. The last sale mentioned in Shankman's Affidavit is from December 2003. Most of the broadcasts and sales mentioned occurred in 2002 and appear to be copied from the complaints in the Pippin case. There is no verified allegation that any of the Defendants continue to sell or distribute any of the videos or use Plaintiffs likenesses, and the videos are now three years old.
It is therefore ORDERED AND ADJUDGED that Plaintiffs' Motion for Preliminary Injunction (Dkt. #2) is DENIED. DONE and ORDERED.