United States of America v. Business Recovery Services LLC et al

Filing 182

ORDER denying Defendants' 167 Motion to Modify Temporary Injunction. Signed by Judge James A Teilborg on 7/16/12.(REW)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 United States of America, ) ) Plaintiff, ) ) vs. ) ) ) Business Recovery Services, LLC; Brian) Hessler, ) ) Defendants. ) ) ) No. CV-11-0390-PHX-JAT ORDER 16 Pending before the Court is Defendants’ Motion to Modify Temporary Injunction. 17 (Doc. 167). The Court now rules on the Motion.1 18 I. BACKGROUND 19 Defendant Business Recovery Services is an Arizona limited liability company with 20 its principal place of business in Maricopa County. Defendant Brian Scott Hessler is the 21 owner of Business Recovery Services. Defendants sell goods and services, including 22 “recovery kits,” that they state allow customers to recover funds that consumers have lost in 23 previous transactions. Some of the customers who purchase Defendants’ recovery kits lost 24 25 1 26 27 28 Though oral argument was requested on the Motion, because both the parties submitted memoranda discussing the law and evidence in support of their positions and oral argument would not have aided the Court’s decisional process, the Court will not set oral argument. See e.g., Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); Lake at Las Vegas Investors Group, Inc. v. Pacific. Dev. Malibu Corp., 933 F.2d 724, 729 (9th Cir. 1991). 1 money or other items of value in previous telemarketing transactions. Among other claims, 2 Plaintiff United States of America (the “Government”) alleges that Defendants’ sale of 3 recovery kits to customers who have lost money in previous telemarketing transactions 4 violates the Telemarketing Sales Rule, 16 C.F.R. Part 310. 5 The Government filed a Motion for a Preliminary Injunction (Doc. 5) to enjoin 6 Defendants from violating the Telemarketing Sales Rule. After holding a hearing on April5, 7 2011, the Court granted the Government’s Motion. The Court enjoined Defendants from 8 “requesting or receiving payment of any fee or consideration from a person for goods or 9 services represented to recover or otherwise assist in the return of money or any other item 10 of value paid by that person in a previous telemarketing transaction, until seven (7) business 11 days after such money or other item is delivered to that person.” (Doc. 34, p. 8). 12 Defendants moved to modify that injunction. (Doc. 83). That motion was denied. 13 (Doc. 118). Defendants appealed that denial to the Ninth Circuit Court of Appeals. (Doc. 14 128). Defendants now move again to modify the Court’s injunction. (Doc. 167) THE APPEAL 15 II. 16 The Ninth Circuit Court of Appeals has now ruled on Defendants’ appeal, and 17 affirmed the denial of modification. United States v. Bus. Recovery Servs., LLC, No. 11- 18 17677 (9th Cir. June 15, 2012).2 Accordingly, this Court has jurisdiction to amend the 19 preliminary injunction. LEGAL STANDARD AND ANALYSIS 20 III. 21 A court that issues an injunction retains the power to modify or suspend it. Clark v. 22 Coye, 60 F.3d 600, 606 (9th Cir. 1995). The party seeking dissolution or modification of an 23 injunction bears the burden of establishing that a significant change in facts or law justifies 24 dissolution or modification. Sharp v. Weston, 233 F.3d 1166, 1170 (9th Cir. 2000) (citing 25 Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383 (1992)). If the party meets its initial 26 27 28 2 The Court notes that the mandate has not issued. However, the slip opinion is currently controlling law. -2- 1 burden of demonstrating a significant change in facts or law, then the Court considers 2 whether the proposed modification is suitably tailored to the changed circumstances. Rufo, 3 502 U.S. at 383. 4 Here, Defendants do not raise any significant change in fact or law. Defendants simply 5 request that the Court pre-approve Defendants’ sale of a book and the operation of ‘a dispute 6 resolution university.’ Defendants do not meet their burden of establishing changed 7 circumstances sufficient to warrant a modification. Because Defendants have not 8 demonstrated a significant change in facts, or the law, the Court will not modify the 9 injunction. 10 IV. 11 Accordingly, 12 IT IS ORDERED denying Defendants’ Motion to Modify Temporary Injunction. 13 14 CONCLUSION (Doc. 167). DATED this 16th day of July, 2012. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?