Liberty Media Holdings, LLC v. March et al

Filing 42

ORDER denying 43 Motion for Limited Temporary Restraining Order; denying as moot 44 Motion for Order Temporarily Sealing Portions of the File. Signed by Judge William Q. Hayes on 4/13/11.(rlu) Per chambers request, filed Order prior to motions(rlu).

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11
12

LIBERTY MEDIA HOLDINGS, LLC, a
California Corporation,

CASE NO. 10cv1809 WQH (BLM)
ORDER

13

Plaintiff,

19

vs.
JAMES MARCH, individually; DI S.A., a
foreign corporation; RYOICHI
WATANABE, an individual; JASON
PHILLIPS, an individual; DAVID
SMITH, an individual; ADRUSH
MEDIA, a foreign corporation;
NAMEVIEW, INC., a foreign
corproation; MYCLICKTO.COM, a
California corporation; DIRECT
PRIVACY ID 826C9; and DOES 1-500,

20

Defendants.

14
15
16
17
18

21

HAYES, Judge:

22

The matters before the Court are the Motion for Limited Temporary Restraining Order

23

Freezing Domain Name Portfolios of Defendants in Default, Ryoichi Watanabe, Jason Phillips,

24

David Smith, Adrush Media, and Nameview, Inc. and the Motion for Order Temporarily

25

Sealing Portions of the File submitted by Plaintiff Liberty Media Holdings, LLC.

26

BACKGROUND

27

On August 31, 2010, Plaintiff Liberty Media Holdings, LLC, filed the Complaint (ECF

28

No. 1) and on October 18, 2010, Plaintiff filed a First Amended Complaint (ECF No. 6)
-1-

10cv1809 WQH BLM

1

alleging claims of cyberpiracy, cybersquatting, and trademark infringement against Defendants

2

for their use of website domain names which target Plaintiff’s trademark CORBIN FISHER.

3

Plaintiff contends that Defendant Watanabe is likely the alias of a resident of Tokyo who

4

registered an infringing domain name through Godaddy.com; Defendant Phillips is likely the

5

alias of a resident of the UK who registered an infringing domain name through

6

Publicdomainregistry.com; Defendant Smith is a foreign individual who registered infringing

7

domain names through Above.com; Defendant Adrush Media is Dutch corporation who

8

registered an infringing domain name through Directnic, Ltd.; and Nameview, Inc. is a Canada

9

corporation who registered an infringing domain name through Nameview, Inc.

10

On January 20, 2011, this Court issued an Order permitting Plaintiff Liberty Media

11

Holdings, LLC to serve Defendants Ryoichi Watanabe, Jason Phillips, David Smith, and

12

Adrush Media via their last known valid email address. (ECF No. 22). Summons were

13

returned executed as to Defendants Ryoichi Watanabe, Jason Phillips, David Smith, Adrush

14

Media, and Nameview, Inc. (ECF Nos. 25-29). On March 28, 2011, the Clerk of the Court

15

entered Default against Defendants Ryoichi Watanabe, Jason Phillips, David Smith, Adrush

16

Media, and Nameview, Inc. (ECF No. 41).

17

I.

Motion for Limited Temporary Restraining Order Freezing Domain Name

18

Portfolios filed by Plaintiff

19

Plaintiff requests that the Court issue a order without notice restraining Ryoichi

20

Watanabe, registrant of corbin-fisher.info at [e-mail]; Jason Phillips,

21

registrant of ilovecorbinfisher.com at [e-mail]; David Smith, registrant of

22

cornbinfisher.com, corbimfisher.com,

23

[e-mail];

24

[e-mail]; and Nameview, Inc. registrant of corbingfisher.com at

25

[e-mail], and any domain name registrars utilized by the

26

Defendants from transferring any and all domain names held by or registered by Defendants

27

until Defendants satisfy any judgment entered in this case or until Defendants appear and show

28

cause as to why the order should be lifted.

Adrush

corbinfisheer.com,

Media,

-2-

registrant

and
of

corbinfissher.com at

corbin-fisher.com

at

10cv1809 WQH BLM

1

Plaintiff contends that it has information regarding the Defendants in the form of

2

WHOIS reports which include Defendants’ names and email addresses. Plaintiff contends that

3

the WHOIS information can be used to “freeze” Defendants’ domain name portfolios. In other

4

words, the WHOIS information can be used to identify Defendants Ryoichi Watanabe, Jason

5

Phillips, David Smith, Adrush Media, and Nameview, Inc. to domain name registrars and the

6

domain name registrars can prevent Defendants from transferring any domain name registered

7

to them.

8

Plaintiff contends that it is likely to succeed on the merits because Defendants have

9

defaulted in this case and “the only formality remaining is the Plaintiff filing its motion for a

10

default judgment.” (Mot. TRO at 4). Plaintiff contends that it will suffer irreparable injury

11

without the requested injunction on the grounds that there is a “strong possibility that the

12

Defendant will take actions to frustrate judgment in this case.” Id. Plaintiff contends that

13

collection efforts on any judgment entered against them will be “frustrated by a lack of

14

information on the Defendants and a resistance from the applicable foreign legal systems[]”

15

because Defendants are located outside of the United States. (Mot. TRO at 2). Plaintiff

16

contends that “the Defendants will simply take all of [their] U.S. - based assets (their domain

17

name portfolios) and will spirit them away to registrars in other countries[,]” if the requested

18

order does not issue. Id. Plaintiff contends that Defendants will able to continue to use all of

19

their domain names and will only be prohibited from disposing of their domain names;

20

therefore, Defendants will not suffer prejudice and the balance of hardship tips in Plaintiff’s

21

favor. Plaintiff contends that the injunction serves the public interest of upholding intellectual

22

property protections.

23

DISCUSSION

24

The underlying purpose of a temporary restraining order is to preserve the status quo

25

and prevent irreparable harm before a preliminary injunction hearing may be held. Granny

26

Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974); see

27

also Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130-31 (9th Cir. 2006). The standard

28

for issuing a temporary restraining order is similar to the standard for issuing a preliminary
-3-

10cv1809 WQH BLM

1

injunction, and requires that the party seeking relief show either “(1) a combination of

2

likelihood of success on the merits and the possibility of irreparable harm, or (2) that serious

3

questions going to the merits are raised and the balance of hardships tips sharply in favor of

4

the moving party.” Immigrant Assistance Project of the L.A. County of Fed’n of Labor v. INS,

5

306 F.3d 842, 873 (9th Cir. 2002). “[T]hese two formulations represent two points on a sliding

6

scale in which the required degree of irreparable harm increases as the probability of success

7

decreases.” Dep’t Parks & Rec. of Calif. v. Bazaar Del Mundo, Inc., 448 F.3d 1118, 1123 (9th

8

Cir. 2006) (citations omitted).

9

Federal Rule of Civil Procedure 65(b) provides that the court may issue a temporary

10

restraining order without notice to the adverse party or its attorney “only if: (a) specific facts

11

in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss,

12

or damage will result to the movant before the adverse party can be heard in opposition; and

13

(b) the movant's attorney certifies in writing any efforts made to give notice and the reasons

14

why it should not be required.” Fed. R. Civ. P. 65(b)(1)(A)-(B). Federal Rule of Civil

15

Procedure 65(b) also provides,

16
17
18
19

Every temporary restraining order issued without notice must state the
date and hour it was issued; describe the injury and state why it is
irreparable; state why the order was issued without notice; and be
promptly filed in the clerk's office and entered in the record. The order
expires at the time after entry--not to exceed 14 days--that the court
sets, unless before that time the court, for good cause, extends it for a
like period or the adverse party consents to a longer extension. The
reasons for an extension must be entered in the record.

20

Fed. R. Civ. P. 65(b)(2).
21

The court may grant an injunction to provide “intermediate relief of the same character
22

as that which may be granted finally,” but the court may not grant an injunction that “deal[s]
23

with a matter lying wholly outside the issues in the suit.” Grupo Mexicano de Desarrollo S.A.
24

v. Alliance Bond Fund, Inc., 119 S.Ct. 1961, 1972 (1999) (quotations and citation omitted)
25

(finding that a blanket freeze of defendant’s assets was not appropriate on the grounds that it
26

was overbroad. In virtually every case, a plaintiff could make a “statement of belief that the
27

defendant can easily make away with or transport his money or goods, [request] an injunction
28

on him [that is] indefinite in duration [and] disabl[e] him [from using] so much of his funds or
-4-

10cv1809 WQH BLM

1

property as the court deems necessary for security or compliance with its possible decree ....”).

2

An equitable freeze of a defendant’s assets is only permissible when the assets are related to

3

the claims raised by the lawsuit and the seizure is ancillary to the final relief which the district

4

court is authorized to grant. Reebok Intern., Ltd. v. Marnatech Enterprises, Inc., 970 F.2d 552,

5

561 (9th Cir. 1992).

6

In this case, Plaintiff Liberty Media Holdings, LLC has failed to submit evidence in

7

support of its Motion for Temporary Restraining Order. The Complaint is not verified, and the

8

Motion is not supported by an affidavit. Plaintiff has submitted the Declaration of Marc J.

9

Randazza, Plaintiff’s counsel, in support of the Motion for Order Temporarily Sealing Portions

10

of the File. Randazza states in his Declaration: “In my opinion, gained through my years of

11

experience pursuing intellectual property scofflaws ... I believe that the Defendants will take

12

steps to move [their domain name] portfolios offshore to frustrate any judgment by this court.”

13

(Decl. Randazza at 2). The evidence in support of the Motion for Temporary Restraining

14

Order fails to specifically indicate any facts regarding: (1) the assets which would be the

15

subject of the restraining order; (2) the Defendants Ryoichi Watanabe, Jason Phillips, David

16

Smith, Adrush Media, and Nameview, Inc. are likely to transfer their domain names; and (3)

17

the individuals and entities that would be restrained by the TRO are properly subject to

18

injunction. The Court concludes that the evidence in the record does not provide specific facts

19

to establish that immediate and irreparable injury, loss, or damage will result to the movant

20

before the adverse party can be heard in opposition.

21

In addition, Plaintiff’s proposed temporary restraining order seeks to enjoin Defendants

22

from transferring not only the domain names which the Complaint alleges are infringing, but

23

also every domain name which is registered to the Defendants Ryoichi Watanabe, Jason

24

Phillips, David Smith, Adrush Media, and Nameview, Inc. Plaintiff has failed to show that the

25

assets it seeks to enjoin are related to the claims raised by the lawsuit and the seizure is

26

ancillary to the final relief which the district court is authorized to grant. See Reebok Intern.,

27

Ltd., 970 F.2d at 561. In addition, Plaintiffs’ proposed temporary restraining order contains

28

no time limitation, as required by Rule 65(b). See Bennett v. Medtronic, Inc., 285 F.3d 801,
-5-

10cv1809 WQH BLM

1

804 (9th Cir. 2002) (holding that a “temporary restraining order” with a 30-day duration and

2

which was entered after an adversary hearing is “appropriately characterize[d]” as a

3

preliminary injunction) (citing Sampson v. Murray, 415 U.S. 61, 87-88 (1974) (“where an

4

adversary hearing has been held, and the court’s basis for issuing the order strongly challenged,

5

classification of [a] potentially unlimited order as a temporary restraining order seems

6

particularly unjustified”). Plaintiff’s Motion for Temporary Restraining Order is DENIED.

7

II.

Motion to for Order Temporarily Sealing Portions of the File

8

Plaintiff seeks an order permitting Plaintiff’s Motion for Limited Temporary

9

Restraining Order Freezing Domain Name Portfolios of Defendants and the Motion for Order

10

Temporarily Sealing Portions of the File to be filed under seal “until [Plaintiff’s] ex parte

11

application for [temporary restraining order] can be ruled upon.” (Mot. to Seal at 2).

12

The Court has ruled on Plaintiff’s Motion for Limited Temporary Restraining Order

13

Freezing Domain Name Portfolios of Defendants. Accordingly, the Motion for Order

14

Temporarily Sealing Portions of the File is DENIED as moot.
CONCLUSION

15
16

IT IS HEREBY ORDERED that the Motion for Limited Temporary Restraining Order

17

Freezing Domain Name Portfolios of Defendants in Default, Ryoichi Watanabe, Jason Phillips,

18

David Smith, Adrush Media, and Nameview, Inc. filed by Plaintiff is DENIED. The Motion

19

for Order Temporarily Sealing Portions of the File filed by Plaintiff is DENIED as moot. The

20

Clerk of the Court shall file the Motions submitted by Plaintiff Liberty Media Holdings, LLC.

21

DATED: April 13, 2011

22
23

WILLIAM Q. HAYES
United States District Judge

24
25
26
27
28
-6-

10cv1809 WQH BLM