Super Mario Plumbing et al v. Belodedov et al

Filing 11

ORDER signed by District Judge Troy L. Nunley on 12/26/17 DENYING plaintiff's 9 Motion for TRO and will consider the 9 motion a Motion for a Preliminary Injunction. Plaintiffs shall serve Defendants with a copy of this Order within 3 days ; a hearing is SET on the Motion for 1/17/2018 at 09:30 AM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. Any opposition or statement of non-opposition from Defendants is due 14 days before the noticed hearing date, and any reply by Plaintiffs is due 7 days before that date. (Benson, A.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12

SUPER MARIO PLUMBING, a California
corporation; and DIMITAR DECHEV, an
individual,

13

Plaintiffs,

14
15
16
17

v.
OLEG BELODEDOV, an individual;
PETRU VERHOVETCHI, an individual;
5-STAR PLUMBING, INC., a California
corporation,

18

No. 2:17–cv–02545–TLN-AC

ORDER DENYING PLAINTIFF’S EX
PARTE MOTION FOR A TEMPORARY
RESTRAINING ORDER AND ORDER TO
SHOW CAUSE REGARDING A
PRELIMINARY INJUNCTION

Defendants.

19
20

This matter is before the Court pursuant to Plaintiffs Super Mario Plumbing (“Super

21

Mario”) and Dimitar Dechev’s (“Dechev”) (collectively, “Plaintiffs”) Ex Parte Motion for a

22

Temporary Restraining Order and Order to Show Cause why a preliminary injunction should not

23

issue (ECF No. 9). Defendants are Oleg Belodedov (“Belodedov”), Petru Verhovetchi

24

(“Verhovetchi”), and 5-Star Plumbing (“5-Star”) (collectively, “Defendants”). For the reasons

25

detailed below, the Court DENIES Plaintiffs’ motion for a temporary restraining order and will

26

consider the motion a motion for a preliminary injunction (ECF No. 9).

27

///

28

///
1

1

I.

2

Plaintiffs allege individual Defendants are former employees of Super Mario. (ECF No.

3

9-1 at 5.) Plaintiffs allege Defendants founded 5-Star as a competitor to Super Mario, although

4

Plaintiffs allege 5-Star is not licensed as a plumber. (ECF No. 9-1 at 6.) Plaintiffs allege

5

Defendants attempted to sabotage Super Mario’s business by trying to bribe Super Mario’s

6

dispatcher to send its service calls to 5-Star instead, signing up on Angie’s List as a competitor

7

plumber, and posting fake, negative reviews of Plaintiffs’ services on-line. (ECF No. 9-1 at 5-6.)

8
9

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs allege the fake, negative reviews appeared on-line as early as the beginning of
November 2017. (ECF No. 9-1 at 5.) Plaintiffs allege their business has been reduced 25%

10

during that time, which they attribute to the reviews. (ECF No. 9-1 at 9.) Plaintiffs allege they

11

have had to reduce the work hours of two employees, from full-time to part-time, due to the

12

reduction in business Plaintiffs attribute to Defendants’ alleged conduct. (ECF No. 9-1 at 8.)

13

Plaintiffs allege they know the reviews are fake because the language in many of the

14

reviews is copied verbatim from older posts about other plumbing companies in different states.

15

(ECF No. 9-1 at 7.) Plaintiffs allege some of the fake reviews sometimes contain the name of the

16

other plumbing company. (ECF No. 9-1 at 9.) Plaintiffs allege they know Defendants are

17

responsible for the fake negative reviews partly because Defendants threatened that action. (ECF

18

No. 9-1 at 6.) Further, Plaintiffs allege Dechev confronted Verhovetchi, who denied

19

responsibility, Dechev confronted both individual Defendants and they laughed, and a Super

20

Mario employee confronted Beledodov and he refused to respond to the accusation. (ECF No. 9-

21

1 at 8-9; ECF No. 9-3 at 2.)

22

Plaintiffs filed their original complaint on December 1, 2017, and their First Amended

23

Complaint on December 13, 2017. (ECF Nos. 1, 8.) On December 18, 2017, Plaintiffs filed the

24

instant motion for a temporary restraining order moving the Court for an order for Defendants to

25

remove several on-line posts Plaintiffs believe are fake, negative reviews of Plaintiffs’ services

26

purporting to be from Plaintiffs’ customers, and an order to show cause why a preliminary

27

injunction should not issue. (ECF No. 9 at 1-2.)

28

///
2

1

II.

2

A temporary restraining order is an extraordinary and temporary “fix” that the court may

STANDARD OF LAW

3

issue without notice to the adverse party if, in an affidavit or verified complaint, the movant

4

“clearly show[s] that immediate and irreparable injury, loss, or damage will result to the movant

5

before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose

6

of a temporary restraining order is to preserve the status quo pending a fuller hearing. See Fed. R.

7

Civ. P. 65. It is the practice of this district to construe a motion for temporary restraining order as

8

a motion for preliminary injunction. Local Rule 231(a); see also Aiello v. One West Bank, No.

9

2:10-cv-0227-GEB-EFB, 2010 WL 406092 at *1 (E.D. Cal. Jan. 29, 2010) (“Temporary

10

restraining orders are governed by the same standard applicable to preliminary injunctions.”)

11

(internal quotation and citations omitted).
Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear

12
13

showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555

14

U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “The

15

purpose of a preliminary injunction is merely to preserve the relative positions of the parties until

16

a trial on the merits can be held.” University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)

17

(emphasis added); see also Costa Mesa City Employee’s Assn. v. City of Costa Mesa, 209 Cal.

18

App. 4th 298, 305 (2012) (“The purpose of such an order is to preserve the status quo until a final

19

determination following a trial.”) (internal quotation marks omitted); GoTo.com, Inc. v. Walt

20

Disney, Co., 202 F.3d 1199, 1210 (9th Cir. 2000) (“The status quo ante litem refers not simply to

21

any situation before the filing of a lawsuit, but instead to the last uncontested status which

22

preceded the pending controversy.”) (internal quotation marks omitted). In cases where the

23

movant seeks to alter the status quo, preliminary injunction is disfavored and a higher level of

24

scrutiny must apply. Schrier v. University of Co., 427 F.3d 1253, 1259 (10th Cir. 2005).

25

Preliminary injunction is not automatically denied simply because the movant seeks to alter the

26

status quo, but instead the movant must meet heightened scrutiny. Tom Doherty Associates, Inc.

27

v. Saban Entertainment, Inc., 60 F.3d 27, 33–34 (2d Cir. 1995).

28

///
3

“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed

1
2

on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief,

3

[3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”

4

Winter, 555 U.S. at 20. A plaintiff must “make a showing on all four prongs” of the Winter test

5

to obtain a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135

6

(9th Cir. 2011). In evaluating a plaintiff’s motion for preliminary injunction, a district court may

7

weigh the plaintiff’s showings on the Winter elements using a sliding-scale approach. Id. A

8

stronger showing on the balance of the hardships may support issuing a preliminary injunction

9

even where the plaintiff shows that there are “serious questions on the merits...so long as the

10

plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the

11

public interest.” Id. Simply put, Plaintiff must demonstrate, “that [if] serious questions going to

12

the merits were raised [then] the balance of hardships [must] tip[ ] sharply in the plaintiff’s

13

favor,” in order to succeed in a request for preliminary injunction. Id. at 1134–35 (emphasis

14

added).

15

I.

ANALYSIS

16

The party moving for a temporary restraining order must clearly show, in an affidavit or

17

verified complaint, “that immediate and irreparable injury, loss, or damage will result to the

18

movant before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). This

19

District’s Local Rules impose additional requirements for a temporary restraining order. Under

20

Local Rule 231, “courts will consider whether the applicant could have sought relief by motion

21

for preliminary injunction at an earlier date without the necessity for seeking last-minute relief by

22

motion for temporary restraining order.” L. R. 231(b). The rule continues, “[s]hould the Court

23

find that the applicant unduly delayed in seeking injunctive relief, the Court may conclude that

24

the delay constitutes laches or contradicts the applicant's allegations of irreparable injury and may

25

deny the motion solely on either ground.” L. R. 231(b).

26

Nearly 50 days passed between the first posting of a negative review on-line and Plaintiffs

27

filing their motion for a temporary restraining order. (ECF No. 9 at 1; ECF No. 9-1 at 5.) Even

28

when Plaintiffs filed their original complaint and their first amended complaint, they did not
4

1

include a motion for a temporary restraining order with either of those filings. (ECF Nos. 1, 8.)

2

Plaintiffs have not shown they require urgent action to avoid an irreparable loss such that this

3

Court must act before Defendants have had an opportunity to respond. The Court concludes that

4

the length of time between the first posting and Plaintiffs’ motion contradicts Plaintiffs’ allegation

5

of immediate, irreparable injury.
Further, the movant’s attorney must certify “in writing any efforts made to give notice and

6
7

the reasons why it should not be required.” Fed. R. Civ. P. 65(b)(1)(B). Plaintiffs’ attorney has

8

attached a sworn declaration stating Plaintiffs have not informed Defendants of the instant motion

9

because time is of the essence, Plaintiffs suffer damages each day, and Defendants may retaliate

10

against Plaintiffs if they learn of the instant motion. (ECF No. 91-4 at 2.)

11

As discussed above, Plaintiffs have not shown they will suffer irreparable harm over the

12

next 14 days compared to any harm Plaintiffs might have suffered over the previous 50 days,

13

during which they did not move for a temporary restraining order (but did request injunctive relief

14

as to Plaintiffs’ sixth cause of action (ECF No. 1 at ¶¶ 39-42) and tenth cause of action (ECF No.

15

8 at ¶¶ 71-74), respectively). Additionally, Plaintiffs have not offered any reason why

16

Defendants would retaliate against Plaintiffs on learning of the instant motion but not after

17

learning of the suit and requests for injunctive relief, with which Defendants were served thirteen

18

days before Plaintiffs filed this motion. (ECF Nos. 4, 5, 6.) Finally, Plaintiffs did serve

19

Defendants with copies of the motion on December 18, 2017, the same day Plaintiffs submitted

20

their motion labeled an “ex parte motion” and accompanying declaration stating Plaintiffs could

21

not notify Defendants of the motion without fear of retaliation. (ECF No. 10; ECF No. 9-4 at 2.)

22

Plaintiffs have not cited any persuasive reason why this Court should rule on a motion for

23

a temporary restraining order before Defendants have had an opportunity to respond. Plaintiffs

24

have also moved the Court to issue a preliminary injunction. (ECF No. 9 at 1-2; ECF No. 9-1 at

25

5.) Accordingly, the Court will treat Plaintiffs’ motion for a temporary restraining order as a

26

motion for preliminary injunction so Defendants may have the opportunity to respond.

27

///

28

///
5

1

II.

2

For the foregoing reasons, the Court DENIES Plaintiffs’ motion for a temporary

CONCLUSION

3

restraining order and will consider the motion a motion for a preliminary injunction (ECF No. 9).

4

Plaintiffs shall serve Defendants with a copy of this Order within 3 days of the date of this Order.

5

Fed. R. Civ. P. 65(a)(1) (“The court may issue a preliminary injunction only on notice to the

6

adverse party.”). The Court hereby schedules the motion hearing for 9:30 a.m. on January 17,

7

2018. For the parties’ convenience, the Court notes that under Local Rule 230, any opposition or

8

statement of non-opposition from Defendants must be filed and served no later than 14 days

9

before the noticed hearing date, and any reply by Plaintiffs must be filed and served no later than

10
11
12

seven days before that date. L. R. 230(c)-(d).
IT IS SO ORDERED.
Dated: December 26, 2017

13
14

Troy L. Nunley
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
6