WBS, Inc. v. Stephen Pearcy et al
Filing
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ORDER DENYING PLAINTIFF'S APPLICATION FOR A TEMPORARY RESTRAINING ORDER 70 , 72 by Judge Dean D. Pregerson . (lc). Modified on 2/10/2017 (lc).
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WBS, INC., a California
corporation,
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Plaintiff,
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v.
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STEPHEN PEARCY, ARTISTS
WORLDWIDE, INC., a
California corporation, TOP
FUEL NATIONAL, a business of
unknown formation,
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Defendants.
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___________________________
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Case No. CV 16-03495 DDP (JCx)
ORDER DENYING PLAINTIFF'S
APPLICATION FOR A TEMPORARY
RESTRAINING ORDER
[Dkt. 70, 72]
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Presently before the court is Plaintiff WBS, Inc. ("WBS")'s Ex
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Parte Application for a Temporary Restraining Order.
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considered the submissions of the parties, the court denies the
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application and adopts the following Order.
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I.
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Having
Background
As explained in further detail by another judge of this court,
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this case concerns certain trademarks originally associated with
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the band "Ratt."
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obtained the marks in 1997 via an assignment from a partnership
(Dkt. 69 at 2.)
Plaintiff asserts that it
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comprised of certain members of the band.
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suit against WBS in Los Angeles County Superior Court.
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cross-complaint alleging, among other things, that Pearcy infringed
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its RATT marks.
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the infringement claim and enjoined Pearcy from using the RATT mark
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in his business or on advertisements and from selling or
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distributing merchandise or recordings bearing the mark absent
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approval from WBS or "the RATT General Partnership."
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In 2001, Pearcy filed
WBS filed a
In 2002, the state court ruled in WBS' favor on
On May 19, 2016, WBS filed the operative Complaint against
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Defendants Stephen Pearcy, Artists Worldwide ("AWW"), and others
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for (1) trademark infringement, (2) conversion, (3) tortious
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interference with prospective economic advantage, (4) unfair
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competition, and (5) breach of contract.
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with the Complaint, WBS filed an application for a temporary
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restraining order ("TRO") and order to show cause ("OSC") why a
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preliminary injunction should not issue against Defendants.
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Another judge of this court denied WBS's application.
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(Dkt. 2.)
Concurrently
(Dkt. 14.)
Now, WBS again seeks a temporary restraining order against
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Pearcy, alleging that he intends to perform with a band called
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"RATT" n Minnesota on February 11, 2017.
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another band touring as "RATT," with WBS authorization, has had
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shows cancelled due to confusion as to its authenticity.
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a TRO enjoining Pearcy from using the RATT trademarks allegedly
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owned by WBS "to promote Pearcy or any band of which he is a
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member" and from using the marks on websites, merchandise,
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marketing materials, and from depleting any revenues Pearcy has
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generated from the use of the marks.
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//
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WBS further alleges that
WBS seeks
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II.
Legal Standard
Requests for temporary restraining orders are governed by the
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same general standards that govern the issuance of a preliminary
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injunction.
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Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001).
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is a matter of equitable discretion and is “an extraordinary remedy
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that may only be awarded upon a clear showing that the plaintiff is
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entitled to such relief.”
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Council, Inc., 555 U.S. 7, 22 (2008).
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See Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush &
An injunction
Winter v. Natural Resources Defense
“A plaintiff seeking a preliminary injunction must establish
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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
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is in the public interest.”
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relief may be warranted where a party: (i) shows a combination of
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probable success on the merits and the possibility of irreparable
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harm; or (ii) raises serious questions on such matters and shows
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that the balance of hardships tips in favor of an injunction.
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Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th
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Cir. 1987). “These two formulations represent two points on a
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sliding scale in which the required degree of irreparable harm
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increases as the probability of success decreases.”
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both formulations, the party must demonstrate a “fair chance of
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success on the merits” and a “significant threat of irreparable
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injury” absent the issuance of the requested injunctive relief.2
Winter, 555 U.S. at 20.
Preliminary
Id.
See
Under
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Even under the “serious interests” sliding scale test, a
plaintiff must satisfy the four Winter factors and demonstrate
“that there is a likelihood of irreparable injury and that the
(continued...)
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Id.
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movant, by a clear showing, carries the burden of persuasion.”
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Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citation omitted).
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III. Discussion
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A preliminary injunction “should not be granted unless the
To prevail on its trademark cause of action, Plaintiff must
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show that (1) it has "a protectible ownership interest in the mark;
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and (2) that Defendants' use of the mark is likely to cause
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consumer confusion."
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F.3d 1190, 1202 (9th Cir. 2012) (internal quotation omitted).
Rearden LLC v. Rearden Commerce, Inc., 683
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Plaintiff argues first that it is likely to succeed on the merits
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of its trademark infringement claim because Defendants are subject
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to collateral estoppel.
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("App") at 5.)
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issue necessarily decided at the previous proceeding is identical
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to the one which is sought to be relitigated; (2) the first
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proceeding ended with a final judgment on the merits; and (3) the
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party against whom collateral estoppel is asserted was a party or
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in privity with a party at the first proceeding."
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FilmTec Corp., 204 F.3d 880, 885 (9th Cir. 2000).
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(Memorandum in Support Of Application
A party may be collaterally estopped where "(1) the
Hydranautics v.
Although Plaintiff's collateral estoppel argument refers to
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"the legal history of the parties," the argument is unsupported by
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any citation to the record.
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to present evidence in a manner that would allow this court to
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evaluate it.
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1026, 1031 (9th Cir.2001).
(App. at 5-7.)
Parties are obligated
See Carmen v. San Francisco Sch. Dist., 237 F.3d
Furthermore, Plaintiff does not
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(...continued)
injunction is in the public interest.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
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identify the issue Pearcy is estopped from pursuing.
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Plaintiff identifies the 2002 state court judgment as the basis for
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collateral estoppel, it is not clear to the court how a
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determination that Pearcy was infringing upon the RATT marks
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roughly fifteen years ago estops Pearcy from arguing that his
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recent activities do not infringe.3
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To the extent
Plaintiff's alternative argument regarding likelihood of
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success on the merits is not well developed.
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that Pearcy is not entitled to use the RATT marks simply because he
Plaintiff is correct
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is an original member of the band.
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739-40 (9th Cir. 1999).
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person who remains continuously involved with a musical group often
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retains the right to use the mark, Plaintiff again cites no
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evidence in the record to support the suggestion that this
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principle creates a likelihood that WBS will prevail.
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See Robi v. Reed, 173 F.3d 736,
Although Plaintiff is also correct that a
Id.
Lastly, there appears to be a dispute whether Pearcy has
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obtained a license to use the marks.
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that he has received permission from both the RATT General
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Partnership and WBS to utilize the marks.
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Pearcy ¶¶ 7-9.)
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ground that Pearcy lacks personal knowledge.
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has some merit.
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facts therein are within his personal knowledge (Pearcy Decl. ¶ 1),
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many of his statements, including the specific statements regarding
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authorization to use the marks, are made as a matter of Pearcy's
Pearcy's declaration states
(Declaration of Stephen
Plaintiff objects to Pearcy's declaration on the
Plaintiff's objection
Although Pearcy's declaration states that the
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Plaintiff makes only occasional, general references to the
Declaration of Drew H. Sherman to support all of its factual
assertions, including those regarding trademark registrations, the
prior state court litigation, and Pearcy's recent activities.
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"current good faith belief and understanding." (Id. ¶¶ 5-9.)
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Generally, statements made without personal knowledge are entitled
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to no weight.
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1412-13 (9th Cir. 1995).
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belief, however, is not necessarily dispositive.
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such boilerplate references, a declarant's personal knowledge may
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be inferred from his position and the nature of his participation
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in the matters at issue.
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Cir. 2000); Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999,
See, e.g. Bank Melli Iran v. Pahlavi, 58 F.3d 1406,
A declarant's reference to his good faith
Regardless of
In re Kaypro, 218 F.3d 1070, 1075 (9th
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1018 (9th Cir. 1990); Johnson v. Peralta Community College
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District, No C-94-4255-MMC (PJH), 1997 WL 227903 at * 6 (N.D. Cal.
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Apr. 28, 1997).
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personal knowledge of at least some of the facts recited on the
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basis of his "current good faith belief and understanding."
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appears undisputed, for example, that Pearcy was formerly an
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officer of WBS.
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can infer that Pearcy is personally aware of the activities of the
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RATT Partnership, of which Pearcy is a member, and that Pearcy is
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personally aware of authorization that he himself received.
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¶¶ 7-8.)
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without prejudice.
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IV.
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Here, it appears beyond dispute that Pearcy has
(Pearcy Decl. ¶ 5.)
It
Similarly, the court
(Id.
Accordingly, Plaintiff's objections are overruled,
Conclusion
Plaintiff has not made a clear showing that it is likely to
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succeed on the merits of its trademark infringement claims.
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scope of Plaintiff's collateral estoppel is not sufficiently clear,
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nor is Plaintiff's argument supported by citations to the record.
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Furthermore, it is unclear whether Pearcy has obtained
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authorization to use the marks from the RATT Partnership, WBS, or
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The
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both, and therefore has an affirmative defense to Plaintiff's
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infringement claims.
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TRO is denied.4
Accordingly, Plaintiff's Application for a
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IT IS SO ORDERED.
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Dated: February 10, 2017
DEAN D. PREGERSON
United States District Judge
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Nothing in this Order shall be read to preclude Plaintiff
from seeking preliminary injunctive relief.
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