Stanley Black & Decker, Inc. et al v. D&L Elite Investments, LLC et al

Filing 92

Order by Hon. Samuel Conti granting 79 Motion for Relief from Asset Restraining Order.(sclc1, COURT STAFF) (Filed on 8/13/2013)

Stanley Black & Decker, Inc. et al v. D&L Elite Investments, LLC et al

Doc. 92

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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STANLEY BLACK & DECKER, INC., and
THE BLACK & DECKER CORPORATION,
Plaintiffs,

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v.
D&L ELITE INVESTMENTS, LLC, d/b/a
G BAY INTERNATIONAL; BILLY DENG;
WISHEN LUO; and JOHN DOES 1-10,
inclusive,
Defendants.

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Case No. 12-4516 SC

ORDER GRANTING MOTION FOR
RELIEF FROM ASSET
RESTRAINING ORDER

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The above-captioned plaintiffs ("Plaintiffs") bring this

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action for trademark infringement against Defendants D&L Elite

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Investments, Billy Deng, and Wishen Luo (collectively,

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"Defendants") in connection with Defendants' alleged sale of

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counterfeit DeWalt batteries.

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2013, the Court issued an Order restraining Defendants' financial

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accounts and assets.

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Thereafter, Plaintiffs froze the Citibank bank accounts of Brian

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Shinbaw Tang ("Tang") and Jenny Fung ("Fung").

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(collectively, "Movants") now move for relief from the Asset

ECF No. 1 ("Compl.").

On April 24,

ECF No. 50 (Asset Restraining Order ("ARO")).

Tang and Fung

Dockets.Justia.com

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Restraining Order.

ECF No. 79 ("Mot.").

Plaintiffs have opposed

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the motion, but Movants have declined to file a reply.

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("Opp'n").

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argument per Civil Local Rule 7-1(b).

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below, the Motion is GRANTED.

ECF No. 88

This matter is suitable for determination without oral
For the reasons set forth

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On April 24, 2013, after Plaintiffs presented evidence

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indicating that Defendants violated a temporary restraining order

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by continuing to sell counterfeit DeWalt batteries, the Court

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issued the Asset Restraining Order.

United States District Court

For the Northern District of California

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The Order states, in relevant

part:

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[I]n accordance with Rule 64 of the Federal Rules of
Civil Procedure [and] 15 U.S.C. § 1116(a) . . .
Defendants and their officers, servants, employees,
and agents and any person in active concert or
participation with them . . . who receive actual
notice of this Order, shall immediately locate all
accounts connected to Defendants and that such
accounts be temporarily restrained and enjoined from
transferring or disposing of any money or other of
Defendants' assets . . . .

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ARO at 4.

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States Marshall to seize the allegedly counterfeit batteries and

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ordered Defendants to show cause why contempt sanctions should not

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issue.

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$43,759.

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In the same Order, the Court authorized the United

The Court later sanctioned Defendants in the amount of
ECF No. 78.

Sometime after April 24, 2013, Plaintiffs froze Movants' bank

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accounts at Citibank without any notice.

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Plaintiffs' counsel, requesting a release of the frozen accounts.

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Plaintiffs' counsel refused, leading the Movants to file the

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instant motion.

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Movants then contacted

Movants argue that the Asset Restraining Order does not apply

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to them because they are not defendants in this action and their

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accounts are not connected to Defendants.

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further argue that Plaintiffs have refused to produce any evidence

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that Tang or Fung are acting in concert with the Defendants.

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Plaintiffs respond that a third-party production from PayPal ties

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Tang's name, address, and bank account to the sale of a large

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number of counterfeit DeWalt batteries on eBay.

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ECF No. 89 ("McArthur Decl.") Exs. 1-3).

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PayPal records also show that Tang is selling counterfeit DeWalt

United States District Court

For the Northern District of California

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Mot. at 5.

Movants

Id.

Opp'n at 2 (citing

Plaintiffs argue that

batteries from the same address as Defendant Billy Deng.
The Court finds Plaintiffs' arguments unavailing.

Their

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papers do not make any attempt to link Fung to Defendants' alleged

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counterfeiting scheme.

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suggest that Tang worked in concert with Defendants in the sale of

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counterfeit batteries, Tang is not a defendant in this matter.

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Court issued the Asset Restraining Order pursuant to Rule 64, which

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provides: "At the commencement of and throughout an action, every

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remedy is available that, under the law of the state where the

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court is located, provides for seizing a person or property to

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secure satisfaction of the potential judgment."

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64(a).

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restraining his assets will serve Rule 64's purpose of securing

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satisfaction of a potential judgment.

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Further, while Plaintiffs' evidence may

The

Fed R. Civ. P

Since Tang is not a defendant, it is entirely unclear how

Moreover, Plaintiffs' reading of the Asset Restraining Order

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is overbroad.

The Order relates to "accounts connected to

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Defendants," not "any account held by persons connected to

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Defendants."

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"any person in active concert or participation with [Defendants]."

As Plaintiffs point out, the Order also refers to

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However, those persons are merely required to locate accounts

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connected to Defendants.

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the Court may restrain the financial accounts of a third party

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without prior notice, raises serious due process concerns.

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Connecticut v. Doehr, 501 U.S. 1, 4 (1991) (finding state statute

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violated due process because it permitted ex parte attachment

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absent bond and a showing of extraordinary circumstances).

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extent that Plaintiffs are concerned about the continued sale of

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counterfeit DeWalt batteries, they can pursue other options.

The notion advanced by Plaintiffs, that

C.f.

To the

The

United States District Court

For the Northern District of California

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Court has already issued an order providing for the seizure of the

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alleged counterfeit batteries.

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leave to amend their complaint to add Movants as defendants in this

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matter.

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Moreover, Plaintiffs can move for

For these reasons, Brian Shinbaw Tang and Jenny Fung's motion

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for relief from the Asset Restraining Order is GRANTED.

The Court

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hereby ORDERS that Tang and Fung's bank accounts frozen by the

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Plaintiffs shall be released upon entry of this Order.

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shall not restrain any property belonging to Tang and/or Fung.

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Court further ORDERS Plaintiffs to file with the Court a report

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describing all accounts that have been restrained pursuant to the

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Asset Restraining Order and explaining why those accounts were

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restrained.

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signature date of this Order.

Plaintiffs

The report shall be filed within ten (10) days of the

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IT IS SO ORDERED.

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Dated:

The

August 13, 2013

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UNITED STATES DISTRICT JUDGE

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