Bravado International Group Merchandising Services, Inc. v. Does 1-100 et al

Filing 10

ORDER TO SHOW CAUSE re 5 Ex Parte Application for a Temporary Restraining Order, Seizure Order and an Order to Show Cause Why a Preliminary Injunction Should Not Issue. Show Cause Response due by 2/3/2016 at 9:00 a.m. Signed by Judge Jeffrey S. White on 02/01/2016. (jswlc1, COURT STAFF) (Filed on 2/1/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

BRAVADO INTERNATIONAL GROUP
MERCHANDISING SERVICES, INC.,

8
9
10

Plaintiff,
v.
JOHN DOES 1-100, et al.,

United States District Court
Northern District of California

11

Defendants.

Case No. 16-cv-00524-JSW
ORDER TO SHOW CAUSE RE
APPLICATION FOR TEMPORARY
RESTRAINING ORDER AND SEIZURE
ORDER
Re: Dkt. No. 5

12
13

On February 1, 2016, Plaintiff filed an ex parte application for a temporary restraining

14

order (“TRO”), seizure order, and order to show cause why a preliminary injunction should not

15

issue. Plaintiff seeks an order to enjoin the sale and distribution of unauthorized goods bearing

16

federally registered trademarks of the musical group “Metallica” during the group’s concert on

17

February 6, 2016 at AT&T Park in San Francisco, California. Additionally, Plaintiff seeks a

18

“Seizure Order” permitting “the United States Marshal, for this District or any other district in

19

which Plaintiff enforces this order, the State police, local police or local deputy sheriffs, off duty

20

officers of the same, and any person acting under their supervision” to seize and impound

21

allegedly infringing merchandise.

22
23
24

The Court hereby ORDERS Plaintiff to show cause on the following issues, in writing, no
later than Wednesday, February 3, 2016, at 9:00 a.m.
1.

Notably absent from the application is any indication of why the application was

25

filed a mere five days before relief is sought, creating an “artificial air of emergency” and

26

requiring this Court to hear this matter on shortened time. Plant v. Does, 19 F. Supp. 2d 1316,

27

1318 (S.D. Fla. 1998). Federal Rule of Civil Procedure 65(b) limits the amount of time during

28

which a TRO issued without notice may remain in effect, and requires the Court to expedite the

1

hearing of a preliminary injunction hearing following the issuance of a TRO issued without notice.

2

However, Plaintiff has not shown cause why the Court could not be notified of the application for

3

TRO sufficiently in advance of the requested TRO date for proper hearing. See, e.g., N.D. Cal.

4

Civil L.R. 7-2(a) (“Except as otherwise ordered or permitted by the assigned Judge or these Local

5

Rules, and except for motions made during the course of a trial or hearing, all motions must be

6

filed, served and noticed in writing on the motion calendar of the assigned Judge for hearing not

7

less than 35 days after filing of the motion.”). In other words, Plaintiff has not shown cause why

8

this action and the request for TRO could not have been filed at least 35 days in advance of the

9

date on Plaintiff requests this Court to issue a TRO.

10

Accordingly, no later than 9:00 a.m. on Wednesday, February 3, 2016, Plaintiff shall show

United States District Court
Northern District of California

11

cause why the application should not be denied, and Plaintiff and its counsel should not be

12

admonished, due to Plaintiff’s delay in presenting this matter to the Court. Plaintiff shall set forth

13

with specificity when and how Plaintiff discovered the facts alleged in support of the February 1,

14

2016 application, if Plaintiff alleges that Plaintiff’s recent discovery of such facts is the reason for

15

the delay in filing the application.

16

2.

The proposed order provided by Plaintiff includes a seizure order as well as a TRO.

17

15 U.S.C. section 1116(d) authorizes this Court to grant an order “providing for the seizure of

18

goods and counterfeit marks.” However, that section also sets forth certain requirements for the

19

language and service of the seizure order. Accordingly, no later than 9:00 a.m. on Wednesday,

20

February 3, 2016, Plaintiff shall show cause why the proposed seizure order is not overbroad,

21

including specifically on the following issues:

22



15 U.S.C. section 1116(d)(5)(B) requires the Court to set forth in its order “a

23

particular description of the matter to be seized, and a description of each place at

24

which such matter is to be seized.” Why is the reference in the proposed order to

25

“the federally registered trademarks, service marks, likenesses, logos, designs, and

26

other indicia of the group known as ‘METALLICA,’” or any other language in the

27

proposed order, sufficiently particularized under this section? Why need not the

28

proposed order include a more particularized description of the trademarks at issue?
2

1

Likewise, why is it appr
w
ropriate for t geograph
the
hical scope o the seizur order to be
of
re
e

2

a ten mile vicinity of the concert, ra
v
e
ather than on mile or so other sm
ne
ome
maller range?
?

3



15 U.S.C. se
ection 1116(
(d)(5)(D) req
quires the Co to set fo in its ord “the
ourt
orth
der

4

amount of security requ
s
uired to be pr
rovided.” Sh
hould the Co should r
ourt
require

5

Plaintiff to provide $200
p
0,000.00 in s
security, or s
some other a
amount, in li
ight of

6

Plaintiff’s re
epresentation in its mem
n
morandum th “Plaintiff monetary losses could
hat
f’s
d

7

aggregate in the hundreds of thousa
n
ands of dolla
ars.” (Dkt. N 6 at 2:19-20.)
No.

8
9



15 U.S.C. se
ection 1116(
(d)(9) provid that “The court shall order that s
des
e
l
service of a
copy of the order under this subsect
tion shall be made by a F
Federal law enforcement
t
officer (such as a United States mar
h
d
rshal or an officer or age of the Un
ent
nited States

11
United States District Court
Northern District of California

10

Customs Se
ervice, Secret Service, Fe
ederal Burea of Investigation, or Po Office)
au
ost

12

or may be made by a State or local l enforcem officer who, upon making
m
law
ment
r,
n

13

service, shall carry out the seizure u
t
under the ord
der.” What a
authority exi for this
ists

14

Court to aut
thorize the persons name in the pro
p
ed
oposed order to conduct t seizure,
r
the

15

including of duty office individu acting un
ff
ers,
uals
nder the sup
pervision of l
law

16

enforcemen officers, an
nt
nd/or proces s servers?

17

In respo
onse to this order, no later than 9:00 a.m. on We
o
ednesday, Fe
ebruary 3, 20
016, Plaintiff
f

18

sha file a decl
all
laration and any other ev
vidence resp
ponsive to th
hese issues. P
Plaintiff also may elect
o

19

to file a supplemental brief not to exce 10 pages and a revis proposed order.
f
f,
eed
s,
sed
d

20
21
22
23

Failure to fully show cause on all the issues above may result in (1) the denial o the
w
a
s
y
)
of
app
plication and (2) the adm
d
monishment of Plaintiff a its couns
and
sel.
IT IS SO ORDER
S
RED.
Da
ated: Februar 1, 2016
ry

24
25
JE
EFFREY S. W
WHITE
Un
nited States D
District Judg
ge

26
27
28
3