Opinion
CASE NO. 4:03-CV-195
May 21, 2003
Jeffrey John Look of Look Law Firm, Plano, Texas, Attorneys for Plaintiffs.
ORDER
Plaintiff Dent Zone Network, L.L.C. has filed an Ex Parte Application for a Temporary Restraining Order pursuant to Federal Rule of Civil Procedure 65 (Docket No. 2). Plaintiff supplemented its Application with a Certification of Jeffrey J. Look pursuant to Federal Rule of Civil Procedure 65(b). To date, Defendants have not been served with a summons and complaint and they have no notice of this action or the instant application. For the reasons articulated below, Plaintiff's ex parte application for a temporary restraining order is DENIED in its entirety.
Plaintiff vigorously argues that it has established a likelihood of success on the merits of its trademark infringement claim. However, the Court cannot reach this argument until it addresses the threshold question that arises anytime a party seeks a restraining order ex parte: has the Plaintiff presented adequate justification for failing to give notice to the Defendants?
Rule 65(b) of the Federal Rules of Civil Procedure authorizes the court to issue a temporary restraining order without written or oral notice to the adverse party, but only if:
(1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.
Fed.R.Civ.P. 65(b). The stringent requirements embodied in Rule 65(b) recognize that "our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute." Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 438-39 (1974). In those rare instances where courts issue ex parte restraining orders, they limit them to preserving the status quo for so long as is necessary to hold a hearing and no longer. Id. at 439.
Ex parte restraining order applications require the court to serve as the absent party's advocate and also, most importantly, analyze the proffered reasons for proceeding ex parte. See, e.g., American Can Co. v. Mansukhani, 742 F.2d 314, 324 (7th Cir. 1984) ("A temporary injunction can be an extremely powerful weapon, and when such an order is issued ex parte, the dangers of abuse are great.") (internal quotations and citations omitted). This scrutiny is particularly warranted in cases such as this, where the Defendants are unaware that judicial proceedings have been commenced and the relief Plaintiff's request is drastic.
Ex parte injunctive relief under Rule 65(b) is generally confined to the following two situations. First, a plaintiff may obtain ex parte relief by showing that it is impossible to give notice to the adverse parties because the plaintiff does not know the party's identity or location. See, e.g., First Tech. Safety Sys. Inc. v. Depinet, 11 F.3d 641, 650 (6th Cir. 1993); American Can Co., 742 F.2d at 322. Plaintiff does not contend that it would be impossible to serve the Defendants, or can they. Its complaint identifies the Defendants' addresses.
The second way a plaintiff may obtain an ex parte restraining order is by showing that proceeding ex parte is the "sole method of preserving a state of affairs in which the court can provide effective final relief." Matter of Vuitton et Fils S.A., 606 F.2d 1, 4 (2d Cir. 1979) (per curiam) (quoting Developments in the Law-Injunctions, 78 Harv. L. Rev. 994, 1060 (1965)). For example, when a party threatens "imminent destruction of the disputed property, its removal beyond the confines of the state, or its sale to an innocent third party," "giving the defendant notice of the application for an injunction could result in an inability to provide any relief at all." Plaintiff has not provided any such justification in this case.
Rather, the Court discerns that Plaintiff has proffered two reasons for proceeding ex parte. First, Plaintiff stated that providing notice to the opposing side would be as ineffectual as the Cease and Desist letter Plaintiff's Intellectual Property counsel sent April 8, 2003 to all Defendants. Second, Plaintiff's contend that Defendants' counsel has advised one of Plaintiff's other attorneys that he is representing a defendant in a three week RICO trial in Victoria, Texas and Plaintiff's counsel believes that notice to Defendants would only result in a Motion for Continuance until counsel for Defendants is out of trial and, thus, allowing the Defendants the opportunity to illegally convert more of Plaintiff's business. The Court finds these arguments are not adequate to explain why Defendants should not be notified and, thus, are inadequate to justify ex parte injunctive relief.
For the foregoing reasons, the Court DENIES, in its entirety, Plaintiff's ex parte application for a temporary restraining order. If Plaintiff wishes to seek a temporary restraining order with notice and/or injunctive relief to prevent Defendants from infringing on its trademark, it may bring a fully noticed motion for a temporary restraining order with notice and/or a preliminary injunction under Rule 65(a).