SST Records Inc et al v. Garfield et al

Filing 12

ORDER DENYING PLAINTIFFS APPLICATION FOR A TEMPORARY RESTRAINING ORDER 3 by Judge Dean D. Pregerson . (lc). Modified on 8/7/2013 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SST RECORDS, INC., a Texas
corporation; GREGORY R.
GINN, an ,

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Plaintiff,
v.
HENRY GARFIELD aka HENRY
ROLLINS, an individual;
KEITH MORRIS, an individual;
GARY McDANIEL aka CHUCK
DUKOWSKI, an individual;
DENNIS PAUL CADENA aka DEZ
CADENA, an individual; JOHN
WILLIAM STEVENSON aka BILL
STEVENSON, an individual;
and STEPHEN PATRICK O'REILLY
aka STEPHEN EGERTON, an
individual,

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Defendants.
___________________________

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Case No. CV 13-05579 DDP (MANx)
ORDER DENYING PLAINTIFFS’
APPLICATION FOR A TEMPORARY
RESTRAINING ORDER
[Docket No. 3 ]

I. Background

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Plaintiffs Gregory Ginn and SST Records (collectively

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“Plaintiffs”) have sued Henry Garfield (a.k.a. Henry Rollins),

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Keith Morris, Gary McDaniel (a.k.a. Chuck Dukowski), Dennis Cadena,

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John Stevenson (a.k.a. Bill Stevenson), and Stephen O’Reilly

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(a.k.a. Stephen Egerton) (collectively “Defendants”) for various

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trademark-related claims, breach of contract, and unfair

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competition.

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before the Court is Plaintiffs’ Application for a Temporary

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Restraining Order.

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(See generally Compl. Docket No. 1.)

Presently

Plaintiff Ginn and Defendant Rollins allegedly started the

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band Black Flag in 1976, which the remaining Defendants later

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joined. (See generally Ginn Decl.)

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continuous member of Black Flag.

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Defendants Garfield and Morris allegedly filed a trademark

Ginn claims to be the only

(Id. ¶ 17.)

In September 2012

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application for the Black Flag mark.

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Defendants, except Garfield, allegedly have advertised various

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concerts, the earliest of which appears to have been in May 2013,

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under the name Flag.

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“defendants have scheduled a series of live performances, using a

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confusing variation of Black Flag, namely ‘Flag’ . . . [which]

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begin on Thursday August 22, 2013.”

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Motion at 4:7-11.)

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appears to have been announced at least in February.

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Ex. F (The earliest Facebook response to the tour’s announcement

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was in February 2013).

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II. Legal Standard

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(Id. ¶ 19.)

(Ginn Decl. ¶¶ 14-17.)

This Motion was filed because

(Memorandum in Support of

Based on Plaintiffs’ exhibits, this tour
(Ginn Decl.

Courts apply the preliminary injunction factors in deciding

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whether to grant a temporary restraining order (“TRO”).

See

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Stuhlbarg Int'l Sales Co. v. John D. Brushy & Co., 240 F.3d 832,

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839 n. 7 (9th Cir. 2001).

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that he is likely to succeed on the merits, that he is likely to

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suffer irreparable harm in the absence of preliminary relief, that

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the balance of equities tips in his favor, and that an injunction

A party requesting a TRO “must establish

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is in the public interest.”

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Sys. Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir. 2011) (citing

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).

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Network Automation, Inc. v. Advanced

Regarding irreparable harm, a court should consider whether

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the movant “proceeded as quickly as it could have” in seeking a

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TRO.

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1314, 1325 (Fed. Cir. 2012) (analyzing a preliminary injunction).

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At the TRO stage, courts will consider whether the movant would

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have been able to file a noticed preliminary injunction motion had

See Apple, Inc. v. Samsung Electronics Co., Ltd., 678 F.3d

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it acted diligently.

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Sacramento, 2:11–CV–02873–MCE, 2011 WL 5374748, at *4 (E.D. Cal.

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Nov.4, 2011) (denying application for TRO for twenty-five day

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delay); Mammoth Specialty Lodging, LLC v. We-Ka-Jassa Inv. Fund,

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LLC, CIVS10-0864 LKK/JFM, 2010 WL 1539811, at *2 (E.D. Cal. Apr.

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16, 2010).1

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///

See, e.g., Occupy Sacramento v. City of

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Many of the cases considering whether the movant had time to
file for a preliminary injunction are from the Eastern District of
California, which has the following local rule:
In considering a motion for a temporary restraining
order, the Court will consider whether the applicant
could have sought relief by motion for preliminary
injunction at an earlier date without the necessity for
seeking last-minute relief by motion for temporary
restraining order. Should the Court find that the
applicant unduly delayed in seeking injunctive relief,
the Court may conclude that the delay constitutes laches
or contradicts the applicant's allegations of irreparable
injury and may deny the motion solely on either ground.
Because this local rule is not based on legal doctrine unique to
the Eastern District, but instead on a commonsense application of
laches, the Court finds the Eastern District cases persuasive.
Regardless, at least one Northern District court has considered
delay in deciding to deny a TRO but allow a future noticed motion
for a preliminary injunction. Rosal v. First Fed. Bank of
California, No. C 09-1276 PJH, 2009 WL 837570, at *2 (N.D. Cal.
Mar. 26, 2009).
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III. Analysis

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In this case, some Defendants filed an allegedly fraudulent

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trademark application for the Black Flag name in 2012.

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¶¶ 14-17.)

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dates, which are the impetus for this TRO, by February of this

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year.

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Defendants advertised a concert in Las Vegas that was scheduled for

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last May.

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Black Flag fans indicated to him in April 2013 that Defendants’ use

(Ginn Decl.

Defendants appear to have announced their upcoming tour

(Id. Ex. F.)

Plaintiffs have submitted evidence that

(Ginn Decl. ¶ 19.)

Plaintiff Ginn has attested that

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of the Flag name was causing them confusion.

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A “TRO is an extraordinary remedy.”

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F. Supp. 2d 1164, 1168 (C.D. Cal. 2011).

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because Plaintiffs could have filed a noticed motion for a

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preliminary injunction that would have been heard well before the

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upcoming tour, which begins on August 22.

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Cent. Dist. L.R. 6-1 (Parties can notice a motion to be heard

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within 28 days of service.).

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(Id.)

Niu v. United States, 821
It is unwarranted here

(Ginn Decl. Ex. F.);

By waiting until the eleventh hour to seek injunctive relief,

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Plaintiffs essentially preclude Defendants from having a meaningful

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opportunity to be heard.

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litigation tactic or occurred for other reasons, the court has no

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knowledge.

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for the delay, due process concerns favor a full and fair airing of

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the positions of the parties.

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IV. Conclusion

Whether the delay was the result of a

What is true, however, is that absent a sound reason

For the reasons stated herein, the Motion is DENIED.

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This

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order does not preclude Plaintiffs from filing a motion for a

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preliminary injunction.

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IT IS SO ORDERED.

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Dated:

August 7, 2013
DEAN D. PREGERSON
United States District Judge

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