Nutrition Distribution, LLC v. Enhanced Athlete, Inc. et al

Filing 24

ORDER signed by District Judge John A. Mendez on 11/13/17, DENYING plaintiff's 10 Motion for Preliminary Injunction. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NUTRITION DISTRIBUTION, LLC,

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No.

2:17-cv-2069-JAM-CKD

Plaintiff,
v.

ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION

ENHANCED ATHLETE, INC., a
Wyoming Corporation; GILMORE
ENGINEERING, INC., an
unincorporated association;
SCOTT E. CAVELL, an
individual; CHARLES ANTHONY
HUGHES, an individual; and
DOES 1 through 10, inclusive,

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Defendants.
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Plaintiff Nutrition Distribution, LLC, doing business as
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Athletic Xtreme (“Plaintiff”) is suing Enhanced Athlete, Inc.,
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Gilmore Engineering, Inc., Scott E. Cavell, and Charles Anthony
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Hughes (collectively “Defendants”) for false advertising and
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violation of the Civil Racketeer Influenced and Corrupt
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Organization Act (“RICO”).

Plaintiff now seeks a preliminary

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injunction enjoining Defendants from producing, licensing,
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marketing, and selling DNP products and from establishing any
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other entity for the purpose of doing so.

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forth below, Plaintiff’s motion for preliminary injunction is

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DENIED.

For the reasons set

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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiff has accused Defendants of false and misleading

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advertising with respect to products containing 2,4-Dinitrophenol

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(“DNP”), which Defendants market and sell to body builders, gym

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users, and the like.

Compl. ¶¶ 1, 3.

Plaintiff contends that

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this product is dangerous for human consumption but Defendants

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promote it as an ingestible fitness supplement that increases fat

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loss.

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own supplement—Slim FX—which competes for similar customers.

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at ¶¶ 18–21.

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under § 43(a)(1)(B) of the Lanham Act and for engaging in a long-

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term scheme to defraud customers in violation of RICO.

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¶¶ 38–54.

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See id. at ¶ 28.

Plaintiff manufactures and markets its
Id.

Plaintiff now sues Defendants for false advertising

Id. at

Shortly after filing this suit, Plaintiff filed an ex parte

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application for a temporary restraining order.

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Court denied the request, finding Plaintiff failed to file the

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requisite affidavits in support of its motion, and set a briefing

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schedule for the preliminary injunction request.

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Hughes and Cavell attest that they have not yet been served with

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the summons and complaint in this lawsuit.

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Hughes Decl. ¶ 2.

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behalf of Enhanced Athlete and Cavell, appearing solely for the

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purposes of opposing the pending motion.

ECF No. 4.

The

ECF No. 8.

Cavell Decl. ¶¶ 9–10;

Rutan & Tucker, LLP, filed an opposition on

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Opp’n at 5.

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II.

OPINION

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A.

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“A plaintiff seeking a preliminary injunction must establish

Legal Standard

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the 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,

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

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injunction is in the public interest.”

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Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (quoting

Alliance for the Wild

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Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008)).

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A plaintiff must establish that the irreparable harm is likely,

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not just possible.

Id.

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B.

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The Court finds Plaintiff is not entitled to a preliminary

Analysis

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injunction because it has failed to demonstrate irreparable harm.

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Because this conclusion is dispositive, the Court does not need

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to address the remaining three factors set out in Winter. See

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Nutrition Distribution LLC v. Lecheek Nutrition, Inc., No. CV 15-

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1322-MWF (MRWx), 2015 WL 12659907 (C.D. Cal. June 5, 2015)

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(“Indeed, suffering irreparable harm prior to a determination of

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the merits is perhaps the single most important prerequisite for

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the issuance of a preliminary injunction.”) (citation and

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quotation marks omitted).

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Plaintiff argues the irreparable harm prong of the Winter

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test is met because of the serious risk of harm DNP poses to the

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life of those who ingest it.

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provides no authority under which the Court may consider

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irreparable harm to third parties in lieu of or in addition to

Mot. at 17–18.

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However, Plaintiff

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irreparable harm to Plaintiff.

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plaintiff seeking a preliminary injunction must establish . . .

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that he is likely to suffer irreparable harm[.]”) (emphasis

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added); Wooten v. BNSF Railway Co., No. CV 16-139-M-DLC-JCL, 2017

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WL 1089546, at *1 (D. Mont. Mar. 21, 2017) (“The Court agrees

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with Judge Lynch that harms alleged against third parties are not

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relevant to the irreparable harm prong of the Winter analysis.”).

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Plaintiff is a competitor, not a consumer.

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appropriate to consider this risk in weighing public interest

See Winter, 555 U.S. at 20 (“A

While it may be

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concerns, the Court may not consider it in the irreparable harm

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analysis.

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Plaintiff also argues that it “has lost sales after the

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introduction of DNP into the marketplace.”

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Plaintiff cites a paragraph in Michael Keplinger’s declaration in

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support: “Slim FX sales decreased significantly since the fall of

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2016 after the reintroduction of DNP into the marketplace by

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Defendants.

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of 2016, our sales of DNP have decreased 38%.”

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¶ 5.

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evidence is irrelevant because “in Lanham Act cases . . .

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injunctive relief may be granted upon proof that a false

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statement of fact in a commercial advertisement is material and

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has a tendency to deceive the relevant purchasing public[,]”

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which is sufficient to establish irreparable injury.

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(citing National Products, Inc. v. Gamber-Johnson LLC, 734 F.

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Supp. 2d 1160, 1171 (W.D. Wash. 2010)).

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Mot. at 18.

Since Defendants began selling DNP during the Fall
Keplinger Decl.

Plaintiff also contends that any deficiency in this

Rep. at 3–4

The Court will not presume irreparable harm in evaluating
the propriety of granting a preliminary injunction in a false
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advertising case.

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Cutlery Co., 823 F. Supp. 2d 1150, 1157–58 (D. Ore. 2011) (“Given

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the direction that the Supreme Court and Ninth Circuit have taken

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in the context of copyright and patent cases, I decline to find

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that a presumption of irreparable harm exists in a false

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advertising claim.”); Nutrition Distribution LLC, 2015 WL

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12659907, at *7 (“Plaintiff has not demonstrated that any injury

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it might suffer would be irreparable absent an injunction.”).

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Plaintiff’s cited cases applying such presumption either predate

See Leatherman Tool Grp., Inc. v. Coast

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decisions strictly requiring a showing that irreparable harm is

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likely or rely on that earlier authority.

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734 F. Supp. 2d at 1171 (relying on Southland Sod Farms v. Stover

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Seed Co., 108 F.3d 1134 (9th Cir. 1997)); cf. Leatherman Tool

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Grp., 823 F. Supp. 2d at 1156–57 (“Leatherman argues that it is

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entitled to a presumption of irreparable harm if a tendency to

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deceive has been established. . . .

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of the use of ‘categorical’ rules with respect to irreparable

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harm. . . . It is now clear that eBay signifies a return to

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traditional equitable principles, under which presumptions of

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harm are not allowed.”) (citing eBay, Inc. v. MercExchange, LLC,

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547 U.S. 388 (2006)).

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involved a permanent injunction or damages following

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adjudication, not a determination of irreparable harm during the

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pendency of a case.

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See National Products,

The eBay Court disapproved

Further, the cases Plaintiff relies upon

Without a presumption, Plaintiff’s evidence is insufficient

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to establish irreparable harm.

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not establish a causal connection—or even more than a merely

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speculative connection—between Defendants’ product and marketing

The proffered declaration does

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and Plaintiff’s decrease in sales.

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provides evidence supporting its loss in sales, which may be

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remedied by monetary damages.

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WL 12659907 at *7 (“An irreparable harm is one that cannot be

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redressed by a legal or equitable remedy following trial.”).

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Because Plaintiff has not demonstrated it is likely to suffer

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irreparable harm its motion for a preliminary injunction must be

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denied.

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III.

Furthermore, Plaintiff only

See Nutrition Distribution, 2015

ORDER

For the reasons set forth above, the Court DENIES
Plaintiff’s Motion for Preliminary Injunction.
IT IS SO ORDERED.
Dated:

November 13, 2017

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