HireAHelper, LLC v. Move Lift, LLC et al

Filing 5

ORDER: The matter before the Court is the Ex Parte Application for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Issue (ECF No. 2) filed by Plaintiff Hire A Helper LLC ("Plaintiff"). It is order ed that plaintiff's application for a Temporary Restraining Order is denied. Accordingly, for plaintiff to have its request for a preliminary injunction set for a hearing before this Court, plaintiff must serve defendants with all documents f iled in this action to date. Plaintiff must file proof of service in the record of this case no later than 4/10/2017. If plaintiff timely files proof of service in the record of this case, plaintiffs request for a Preliminary Injunction will be set for a hearing on 4/24/2017 at 4:00 p.m. in Courtroom 14B. Any opposition by defendants must be filed in the record of this case no later than 4/17/2017. Any reply by plaintiff must be filed in the record of this case no later that 4/19/2017. Signed by Judge William Q. Hayes on 4/7/2017. (dxj)

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FILED

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APR 0 7 2017

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CLERK, U.S. DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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BY

~DEPUTY
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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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II
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HireAHelper1 LLc; a California
Limited Liability L.ompany

ORDER
Plaintiff,
v.

Move Lift LLC, a Texas Limited
Liability Company; Simple Moving
Labor, LLC, a Texas Limited Liability
Company

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CASE NO. l 7cv071 l-WQH-JMA

Defendants.
HA YES, Judge:

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The matter before the Court is the Ex Parte Application for Temporary

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Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not

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Issue (ECF No. 2) filed by Plaintiff Hire A Helper LLC ("Plaintiff').

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I. Allegations of the Complaint (ECF No. 1)

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On April 7, 2017, Plaintiff initiated this action by filing the Complaint (ECF No.

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I). Plaintiff alleges that Defendants Move Lift, LLC and Simple Moving Labor, LLC

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("Defendants") have published material on Defendants' website that infringes on

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Plaintiffs copyright. Id. at ~ 23-24. Plaintiff alleges that it has not "'authorized

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[Defendants} to reproduce or copy anything including without limitation [Plaintiffs]

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copyrighted text and layout in [Defendants'] website." Id. at if 25 .

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Plaintiff alleges that its "executives began pursuing Budget Truck Rentals, LLC

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('Budget') for [Plaintiff] to enter into a contract in which Budget would refer its
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customers to [Plaintiffs] online marketplace. The Potential Budget Contract is

2 projected to generate many millions of dollars of additional revenue and profits for
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[Plaintiff].” Id. at ^ 16. Plaintiff alleges that “[o]n or about January 11, 2017, after

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nearly seven years attempting to secure the Potential Budget Contract, on January 11,

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5 2017, Budget’s representative... called [Plaintiffs] Head of Sales & Marketing, Ryan
6 Charles, requesting that he travel to Budget’s office in New Jersey to present
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[Plaintiffs] bid for the Potential Budget Contract. [Plaintiffs] bid was presented for

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the Potential Budget Contract in person to Budget in Parsippany, New Jersey on March

9 6, 2017.” Id. at | 17. “On information and belief, [Defendant] MoveLift met with
10 Budget between March 10,2017, and April 1,2017, to present MoveLift’s bid for the
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Potential Budget Contract based in part on MoveLift’s website that included material

12 wrongfully copied from and infringing upon [Plaintiffs] copyright in [Plaintiffs]
13 website.” Id. at

18. Plaintiff alleges that “Budget is currently considering either

14 [Plaintiffs] bid or MoveLift’s bid for the Potential Budget Contract.” Id. at 119.
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Plaintiff alleges that “[f]urther irreparable harm to [Plaintiff] is imminent as a

16 result of [Defendants’] conduct, and [Plaintiff] is without an adequate remedy at law.
17 [Plaintiff] is entitled to emergency, temporary, preliminary and permanent injunctive
18 relief restraining [Defendants], their officers, directors, agents, employees,
19 representatives and all persons acting in concert with them from engaging in further
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such acts of copyright infringement.” Id. at ]f 26. Plaintiff includes two claims for

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relief in the Complaint: (1) copyright infringement; and (2) unfair competition. Id. at

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20-34. Plaintiffs prayer for relief includes a request for a temporary restraining

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order, preliminary and permanent injunction against Defendants, “actual damages plus

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[Defendants’] profits gained as a consequence of [Defendants’] infringement of

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[Plaintiffs] copyright in an amount to be prove at trial [,]” statutory damages, punitive

26 damages, prejudgment interest on all amounts owed, and for fees. Id. at 7.
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II. Ex Parte Application for Temporary Restraining Order and Order to Show

28 Cause Why Preliminary Injunction Should Not Issue (ECF No. 2)
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Concurrent with the Complaint, Plaintiff filed the Ex Parte Application for

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Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction

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Should Not Issue (ECF No. 2). Plaintiff contends that

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Defendants are misusing material copied from [Plaintiff] within the last
six weeks to unfairly interfere and compete with [Plaintiff] for a contract
with Budget that [Plaintiff] has been pursuing for seven years. Budget’s
award of the contract is now under active consideration. An emergency
temporary restraining order is urgently needed to prevent the irreparable
harm that result if Budget were to award the contract to Defendants based
on Defendants’ copyright infringements of [Plaintiffs] material
developed over 11 years at a cost ofhundreds of thousands of dollars.

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9 (ECF No. 2 at 2). Plaintiff requests that the Court enter “a temporary restraining order
10 and a preliminary injunction prohibiting Defendants from publishing in any way the
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content contained in HireAHelper’s website at www.hireahelper.com and barring

12 [Defendants] from negotiating for or entering into any contracts with Budget.” (ECF
13 No. 2-1 at 3). Plaintiff contends that
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The Potential Budget Contract would Represent a substantial part of
[Plaintiff’s] revenue and would enable [Plaintiff] to obtain other new
accounts and business relationships. If [Defendants] are permitted to
market themselves with their current websites to enter into contracts it
would not have obtained otherwise by relying upon the major investment
made by [Plaintiff], [Plaintiff] will never know of the accounts and
business relationships that it has lost due to [Defendants’] copyright
infringement. Proof of the amount of the loss would be extraordinarily
difficult or impossible. Such loss cannot be compensated by money
damages and is irreparable in nature.

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20 Id. at 5.

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III. Analysis

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A. Temporary Restraining Order

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Federal Rule of Civil Procedure 65(b)(1) states that

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The court may issue a temporary restraining order without written or oral
notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party
can be heard in opposition; and
(B) the movant’s attorney certifies in writing any efforts
made to give notice and the reasons why it should not be
required.

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Fed. R. Civ. P. 65(b)(1).

The Supreme Court has stated that, “[t]he stringent

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restrictions imposed by... Rule 65 on the availability of ex parte temporary restraining

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orders reflect the fact that our entire jurisprudence runs counter to the notion of court

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action taken before reasonable notice and an opportunity to be heard has been granted

5 both sides of a dispute.” Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S.
6 423,438-39 (1974). “Consistent with this overriding concern, courts have recognized
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very few circumstances justifying the issuance of an ex parte TRO.” Reno Air Racing

8 Ass ’n., Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006).

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In this case, Plaintiff has attached a declaration to its Ex Parte Application for

10 Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction
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Should Not Issue stating that Plaintiff s counsel sent an email to Defendants containing

12 a copy of the Application. (ECF No. 2-3). The: Court finds that Plaintiff has satisfied
13 the notice requirement of Rule 65(b)(1)(B).
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However, Plaintiff has not set forth “specific facts” that “clearly show that

15 immediate and irreparable injury, loss, or damage will result to [Plaintiff] before
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[Defendants] can be heard in opposition[.]” Fed. R. Civ. P. 65(b)(1)(A). Plaintiff has

17 failed to set forth specificAfacts as to why it is necessary for this Court to issue the
18 requested injunctive relief “before reasonable notice and an opportunity to be heard has
19 been granted [to] both sides of [this] dispute.” Granny Goose, 415 U.S. at 439. See
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also Zakar v. CHL Mortg. Pass Through Trust, No. 11CV457 JLS (WVG), 2011 WL

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915293, at *2 (S.D. Cal. Mar. 8,2011) (Sammartino, J.) (“Plaintiffs failed to set forth

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specific facts in an affidavit or a verified complaint clearly showing that immediate and

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irreparable loss would result before the Defendants could be heard in opposition.”).

24 Because Plaintiff has failed to meet the requirement set forth in Rule 65(b)(1)(A),

25 Plaintiffs application for a Temporary Restraining Order is DENIED.
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B. Preliminary Injunction

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Plaintiff s application also includes a request for a preliminary injunction. See

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ECF No. 2-1 at 3. Rule 65(a) states that “The court may issue a preliminary injunction
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only on notice to the adverse party.” Fed. R. Civ. P. 65(a)(l-2). Accordingly, for

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Plaintiff to have its request for a preliminary injunction set for a hearing before this

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Court, Plaintiff must serve Defendants with all documents filed in this action to date,

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including the Complaint (ECF No. 1), the Temporary Restraining Order and Order to

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Show Cause Why Preliminary Injunction Should Not Issue (ECF No. 2), and this

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6 Order. Plaintiff must file proof of service in the record of this case no later than
Monday, April 10, 2017.
If Plaintiff timely files proof of service in the record of this case, Plaintiffs
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9 request for a Preliminary Injunction will be set for a hearing on Monday, April 24,
10 2017, at 4:00 PM in Courtroom 14B. Any opposition by Defendants must be filed in
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the record of this case no later than Monday, April 17, 2017. Any reply by Plaintiff

12 must be filed in the record of this case no later than Wednesday,

Iril 19, 2017.

13 DATE:
WILLIAM Q.HXYES
United States District Judge

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