Opinion
Case No: 6:17-cv-1467-Orl-37DCI
02-11-2019
WESTGATE RESORTS, LTD., et al., Plaintiffs, v. MITCHELL REED SUSSMAN and MITCHELL REED SUSSMAN & ASSOCIATES, Defendants.
REPORT AND RECOMMENDATION
This cause comes before the Court for consideration without oral argument on the following motion:
MOTION: JOINT MOTION FOR ENTRY OF AGREED PRELIMINARY INJUNCTION (Doc. 192)
FILED: February 7, 2019
THEREON it is RECOMMENDED that the motion be GRANTED in part.
On February 7, 2019, the parties filed a joint motion for entry of an agreed preliminary injunction. Doc. 192. The parties attached the proposed preliminary injunction to the Motion. Doc. 192-1.
To obtain a preliminary injunction, the movant must sufficiently establish that (1) "it has a substantial likelihood of success on the merits"; (2) "irreparable injury will be suffered unless the injunction issues"; (3) "the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party"; and (4) "the injunction would not be adverse to the public interest." Forsyth Cty. v. U.S. Army Corps of Eng'rs, 633 F.3d 1032, 1039 (11th Cir. 2011) (quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc)). Here, the parties agree that "Plaintiffs could prove the elements necessary to obtain preliminary injunctive relief." Doc. 192 at 1-2. Therefore, the undersigned finds that Plaintiffs have sufficiently established the elements necessary for the entry of a preliminary injunction.
The parties note, however, that "Defendants did not admit any of the underlying facts for any other purpose." Doc. 192 at 1-2. --------
However, the undersigned finds that the proposed preliminary injunction is overbroad to the extent it could be read to enjoin the independent actions of non-parties to this case. The Court should not enjoin the independent actions of non-parties based upon the agreement of the parties here. So, to clarify this limitation within the preliminary injunction, the Court should add a provision containing limiting language to the preliminary injunction, such as: This preliminary injunction applies to Defendants and to any of Defendants' agents (including independent contractors and local counsel) to the extent those persons are acting as agents - or otherwise at the direction - of Defendants.
Accordingly, it is RECOMMENDED that the Motion (Doc. 192) be GRANTED in part to the extent that the Court enter the proposed preliminary injunction (Doc. 192-1), but that the Court should also add limiting language to the scope of the preliminary injunction as set forth in this Report.
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.
Recommended in Orlando, Florida on February 11, 2019.
/s/_________
DANIEL C. IRICK
UNITES STATES MAGISTRATE JUDGE Copies furnished to: Presiding District Judge
Counsel of Record
Unrepresented Party
Courtroom Deputy