Opinion
CASE NO. 5:06CV0892.
November 1, 2007
Robert E. Chudakoff (0038594), ULMER BERNE LLP, Cleveland, Ohio.
Scott T. Wilsdon ( pro hac vice), Jeremy E. Roller ( pro hac vice), YARMUTH WILSDON CALFO PLLC, Seattle, Washington, Attorneys for Plaintiff, Microsoft Corporation.
ORDER GRANTING PLAINTIFF MICROSOFT'S MOTION FOR TEMPORARY RESTRAINING ORDER FREEZING CERTAIN BUSINESS ASSETS OF DEFENDANTS
THIS MATTER comes before the Court upon Plaintiff Microsoft Corporation's ("Microsoft") Motion for Temporary Restraining Order Freezing Certain Business Assets owned or controlled by Defendants 9038-3746 Quebec Inc., 9069-8697 Quebec Inc., 9126-6411 Quebec Inc., Carmelo Cerrelli, Cerrelli Trust, VSOP Web Inc., InfoDMI Corp., and Systemes Ivorcom Inc., collectively doing business as "Inter Plus," "Inter-Plus," "Inter Plus, Inc.," "Inter-Plus International Distribution," "Inter-Plus International Inc.," "Interplus Online," "Info DMI," "Info-DMI," "Ivorcom Systems Inc.," and "Von1" (collectively, "the Inter Plus Defendants"). Having reviewed the materials submitted, and being fully advised, the Court GRANTS Microsoft's motion as follows:
(1) The Court GRANTS Microsoft's Motion for Temporary Restraining Order Freezing Certain Business Assets owned or controlled by the Inter Plus Defendants upon finding that Microsoft has carried its burden of showing (1) a strong likelihood of success on the merits; (2) that Microsoft will suffer irreparable injury without the injunction; (3) that issuance of the injunction will not cause substantial harm to others; and (4) that the public interest would be served by issuance of the injunction. This Temporary Restraining Order is granted pursuant to Federal Rule of Civil Procedure 65, the Court's general equitable power, and the Court's statutory authority to order the disgorgement of profits pursuant to 15 U.S.C. § 1117(a) (trademark), 17 U.S.C. § 504(b) (copyright), and 18 U.S.C. § 2318(f)(3)(A) (anti-counterfeiting).
(2) [INTENTIONALLY DELETED]
(3) As further alternative grounds for the relief ordered herein, pursuant to Federal Rule of Civil Procedure 64 and Ohio Rev. Code Ann. § 2715.01(A)(1)-(2), this Court GRANTS Microsoft's Motion for Temporary Restraining Order Freezing Certain Business Assets owned or controlled by Defendants Carmelo Cerrelli and 9038-3746 Quebec Inc. to secure a judgment in favor of Microsoft and against Defendants Carmelo Cerrelli and 9038-3746 Quebec Inc., entered by the Federal Court in Canada in the civil action captioned Microsoft Corporation v. 9038-3746 Quebec Inc.; 9014-5731 Quebec Inc.; Adam Cerrelli; and Carmelo Cerrelli (No. T-1502-00).
(4) The Court hereby RESTRAINS and ENJOINS Defendants 9038-3746 Quebec Inc., 9069-8697 Quebec Inc., 9126-6411 Quebec Inc., Carmelo Cerrelli, Cerrelli Trust, VSOP Web Inc., InfoDMI Corp., and Systemes Ivorcom Inc., and any persons or entities acting on their behalf, including but not limited to the financial institutions and other third parties identified below, from transferring, disposing of, encumbering or secreting any of the following assets:
(a) Any accounts at Nova Information Systems, Inc. in the name(s) of 9038-3746 Quebec Inc., 9069-8697 Quebec Inc., 9126-6411 Quebec Inc., Carmelo Cerrelli, Cerrelli Trust, VSOP Web Inc., InfoDMI Corp., Systemes Ivorcom Inc., "Inter Plus," "Inter-Plus", "Inter Plus, Inc.," "Inter-Plus International Distribution," "Inter-Plus International Inc.," "Interplus Online," "Info DMI," "Info-DMI," "Ivorcom Systems Inc.," or "Von1";
(b) Any accounts at Key Bank in the name(s) of 9038-3746 Quebec Inc., 9069-8697 Quebec Inc., 9126-6411 Quebec Inc., Carmelo Cerrelli, Cerrelli Trust, VSOP Web Inc., InfoDMI Corp., Systemes Ivorcom Inc., "Inter Plus," "Inter-Plus," "Inter Plus, Inc.," "Inter-Plus International Distribution," "Inter-Plus International Inc.," "Interplus Online," "Info DMI," "Info-DMI," "Ivorcom Systems Inc.," or "Von1";
(c) JP Morgan Chase Bank Account No. 4005575 or any other account at JP Morgan Chase Bank in the name(s) of 9038-3746 Quebec Inc., 9069-8697 Quebec Inc., 9126-6411 Quebec Inc., Carmelo Cerrelli, Cerrelli Trust, VSOP Web Inc., InfoDMI Corp., Systemes Ivorcom Inc., "Inter Plus," "Inter-Plus," "Inter Plus, Inc.," "Inter-Plus International Distribution," "Inter-Plus International Inc.," "Interplus Online," "Info DMI," "Info-DMI," "Ivorcom Systems Inc.," or "Von1"; and
(d) Any United States bank account(s) or other types of accounts linked to or receiving deposits from any of the account(s) identified in Paragraphs 4(a) through (c) of this Order.
(5) As soon as practical upon service of this Order, Nova Information Systems, Inc., Key Bank, and JP Morgan Chase Bank are hereby directed to identify by bank name and location, account holder, and account number any account(s) that is/are linked to, associated with, or receiving deposits from any of the account(s) identified in Paragraphs 4(a) through (c) of this Order.
(6) Within three business days upon service of this Order, Nova Information Systems, Inc., Key Bank, and JP Morgan Chase Bank are hereby directed to provide account information in sufficient detail to identify the (a) account holder, (b) address or contact information, and (c) current balance for each account subject to this Order. The information required in paragraphs (5) and (6) herein shall be delivered immediately to counsel for Microsoft. As soon as practical, counsel for Microsoft is directed to serve the Inter Plus Defendants and its counsel, if known, with copies of all account information received from Nova Information Systems, Inc., Key Bank, and JP Morgan Chase Bank.
(7) This Temporary Restraining Order shall take effect immediately and shall remain in effect pending the Show Cause Hearing in Paragraph (9) or further order of this Court.
(8) Microsoft is ordered to file proof of bond in the amount of $_10,000___ within five court days of this Order, and shall maintain such bond pending further order of this Court.
(9) The Inter Plus Defendants are ordered to appear on November 13, 2007, at ___9:00___ a.m., and show cause why the assets that are the subject of this Order should not remain frozen pending the trial in this action. This Court's order will remain in effect pending further hearing on said date.
(10) The Inter Plus Defendants shall serve and file any papers in opposition to the continued freeze not less than three court days before the Show Cause Hearing. Microsoft shall serve and file any reply papers not less than one court day before the Hearing.
(11) The stay of discovery in this matter is LIFTED.