Sprint Nextel Corporation et al v. Ezcom Inc et al

Filing 24

MINUTES (IN CHAMBERS): ORDER by Judge John F. Walter: denying Motion for Preliminary Injunction 17 . (kbr)

PRIORITY SEND

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Case No.

CV 12-00222-JFW (VBKx)

Title:

Sprint Nextel Corporation, et al. -v- EZCom, Inc., et al.

Date: February 13, 2012

PRESENT:
HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE
S. Eagle
Courtroom Deputy

None Present
Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS:
None
PROCEEDINGS (IN CHAMBERS):

ATTORNEYS PRESENT FOR DEFENDANTS:
None

ORDER DENYING PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION [filed 1/30/2012; Docket
No. 17]

On January 30, 2012, Plaintiffs Sprint Nextel Corporation, Boost Worldwide, Inc. and Virgin
Mobile USA, L.P. (collectively “Plaintiffs”) filed a Motion for Preliminary Injunction. Defendants
Ezcom, Inc. d/b/a Tricom Communications and Michael Li Wu (collectively “Defendants”) did not
file an Opposition. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 715, the Court finds that this matter is appropriate for decision without oral argument. The hearing
calendared for February 27, 2012 is hereby vacated and the matter taken off calendar. After
considering the moving papers and the arguments therein, the Court rules as follows:
Injunctive relief is “an extraordinary remedy that may only be issued upon a clear showing
that plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council, 555 U.S. 7,
129 S. Ct. 365, 376 (2008). A plaintiff seeking a preliminary injunction must establish: (1) a
likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable
harm absent a preliminary injunction; (3) that the balance of equities tips in the moving party’s
favor; and (4) that an injunction is in the public’s interest. Id. at 374; see also American Trucking
Associations, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The Ninth Circuit
recently confirmed that its “serious questions” approach survived Winter when applied as part of
the four-element Winter test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th
Cir. 2011). In other words, “‘serious questions going to the merits’ and a balance of hardships that
tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the
plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the
public interest.” Id. at 1135.
Although Defendants did not file an Opposition, Plaintiffs have failed to carry their burden of
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demonstrating that they are entitled to a preliminary injunction. First, Plaintiffs’ Motion for
Preliminary Injunction is based upon a standard that has been overruled by the Supreme Court in
Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). Indeed, Plaintiffs seek the
issuance of a preliminary injunction based only on a “possibility” of irreparable harm rather than a
likelihood of irreparable harm absent a preliminary injunction. See Motion at pp. 8, 17-18.
Moreover, Sprint Nextel’s evidence in support of its Motion for Preliminary Injunction is woefully
insufficient to demonstrate a likelihood of success on the merits. For example, Plaintiffs fail to
present any evidence that Defendants are engaged in the “Bulk Handset Trafficking and Activation
Scheme” as described in the Complaint. See, e.g. Motion at p. 2 (“Upon information and belief,
Defendants and/or their co-conspirators remove the Sprint Nextel Prepaid Phones’ original
packaging and accessories, copies of the written warranties and ownership manuals, and ship the
Phones overseas, unlocked or to be unlocked for resale.”); Declaration of Carmen Douglas at ¶ 13
(stating that Defendants shipped Sprint Nextel Phones to Sprint’s investigator in Florida, but failing
to state that the phones were unlocked or without their original packaging, written warranties, or
ownership manuals).
Accordingly, Plaintiffs’ Motion for Preliminary Injunction is DENIED.

IT IS SO ORDERED.

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