Geiger et al v. Master United 12 LLC et al

Filing 57

ORDER denying 52 Motion for TRO. By Judge Robert E. Blackburn on 8/26/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-00240-REB-BNB
ZACH GEIGER, et al.,
Plaintiffs,
v.
Z-ULTIMATE SELF DEFENSE STUDIOS LLC, et al.,
Defendants.

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
Blackburn, J.
This matter is before me on Plaintiffs’ Motion for Temporary Restraining
Order and Order for Spoliation Sanctions [#52]1 filed August 20, 2014. The
defendants filed a response [#54]. I deny the motion for temporary restraining order
and refer the motion for spoliation sanctions to the United States Magistrate Judge
assigned to this case.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. §§ 1331 (federal question).
II. STANDARD OF REVIEW
A temporary restraining order constitutes extraordinary relief. A party seeking a
temporary restraining order or a preliminary injunction must show (1) a substantial
likelihood that the movant eventually will prevail on the merits; (2) that the movant will
1

“[#52]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the
movant outweighs whatever damage the proposed injunction may cause the opposing
party; and (4) that the injunction, if issued, would not be adverse to the public interest.
Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980). In addition to the foregoing
factors, a party seeking a temporary restraining order also must demonstrate clearly,
with specific factual allegations, that immediate and irreparable injury will result absent a
temporary restraining order. FED. R. CIV. P. 65(b).
III. ANALYSIS
To the extent the plaintiffs seek a temporary restraining order, their motion is
based, in essence, on allegations of witness intimidation. They seek an order
prohibiting the defendants or their agents from “contacting, communicating with,
harassing, slandering, or otherwise interfering in personal or business lives of” (1)
witnesses or their families; and (2) plaintiffs or their families. Motion [#52], p. 12. This
claim for relief is based primarily on the concerns of a witness named Heidi Applehans.
Ms. Appelhans was employed by one or more of the defendants. The plaintiffs claim
that defendant William Clark, a founder and principal of Z-Ultimate Enterprise,
encouraged and ordered Ms. Applehans to alter key accounting documents of the
defendants, which documents are relevant to this case. Ms. Applehans is no longer
employed by any of the defendants.
According to the plaintiffs, Mr. Clark has threatened to make false statements to
the IRS about Ms. Applehans and has “encouraged his martial arts instructors to
influence the Plaintiffs.” Motion [#52], p. 2. In the view of the plaintiffs, given the
personal knowledge of Ms. Applehans of the alleged legal and ethical misdeeds of the
defendants, “Ms. Applehan’s concern about how Defendant Clark will react to her
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coming forward [with such information] is entirely reasonable.” The plaintiffs say Mr.
Clark is a large and imposing, high-ranking, martial artist, his threats are taken
seriously, and there have been “regular rumors of threats of physical violence made
against former instructors or those who crossed Clark.” Motion [#52], p. 4. The
plaintiffs have submitted affidavits in which Ms. Applehans and others attest to the facts
summarized here.
Assuming the facts alleged in the motion and stated in the supporting affidavits
are true, the plaintiffs have not demonstrated an arguable basis for the entry of a
temporary restraining order. This evidence does not show either a substantial likelihood
that the plaintiffs, or any of them individually, will prevail on the merits of any claim
related to their requested temporary restraining order, nor does it show that the
plaintiffs, or any of them individually, will suffer an immediate and irreparable injury
unless a temporary restraining order issues. Rumors of threats of physical violence by
Mr. Clark combined with Mr. Clark’s size and martial arts expertise do not satisfy these
fundamental legal requirements. The plaintiffs have not cited or produced any
additional evidence which tends to show a prospect of immediate and irreparable injury
from Mr. Clark or any of the defendants.
IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That to the extent the plaintiffs move for the entry of a temporary restraining
order in the Plaintiffs’ Motion for Temporary Restraining Order and Order for
Spoliation Sanctions [#52] filed August 20, 2014, the motion is DENIED;
2. That to the extent the plaintiffs move for the imposition of sanctions for
spoliation in the Plaintiffs’ Motion for Temporary Restraining Order and Order for
3

Spoliation Sanctions [#52] filed August 20, 2014, that motion is REFERRED to the
assigned United States Magistrate Judge consistent with the previous order [#4] of the
court.
Dated August 26, 2014, at Denver, Colorado.
BY THE COURT:
.

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