Muhaisen et al v. John & Jane Does 1 through 100

Filing 14

ORDER. The portion of Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction 6 seeking a temporary restraining order is granted. This order will expire on September 26, 2017 unless extended by the Court, upon motion by plaintiffs, for good cause. Plaintiffs shall serve a copy of this order on defendants at the email address known to plaintiffs. By Judge Philip A. Brimmer on 9/12/17. (pabsec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 17-cv-01575-PAB
JIHAD MUHAISEN and
MUHAISEN & MUHAISEN, LLC, a Colorado limited liability company,
Plaintiffs,
v.
JOHN AND JANE DOES 1 THROUGH 100, all whose true names are unknown,
Defendants.
_____________________________________________________________________
TEMPORARY RESTRAINING ORDER
_____________________________________________________________________
This matter is before the Court on Plaintiffs’ Motion for a Temporary Restraining
Order and Preliminary Injunction [Docket No. 6]. The Court has jurisdiction pursuant to
28 U.S.C. § 1331.
I. MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiff Jihad Muhaisen (“Muhaisen”) is a licensed attorney in the State of
Colorado and a founding partner of plaintiff Muhaisen & Muhaisen, LLC. Docket No. 1
at 3, ¶ 7. In their fourth claim for relief, libel per se, plaintiffs allege that defendants,
under the user name of Enough 2M2, have posted four libelous YouTube videos
concerning them. Docket No. 6 at 4-5, ¶¶ 1-5. The YouTube videos accuse Muhaisen
of domestic violence, assault, homicide, drug use, and fraudulent legal practices.1 Id. at
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The videos are posted on the following sites:
https://www.youtube.com/watch?v=GwSr9tHCtsA;
https://www.youtube.com/watch?v=IkyNFqS-hD8;
https://www.youtube.com/watch?v=rrb-7pJKZ3k;
https://www.youtube.com/watch?v=u5DdMOJ-csE.

6-7, ¶¶ 22, 24, 26, 28. At the TRO hearing, plaintiffs’ counsel represented that the
videos also refer to Muhaisen & Muhaisen, LLC. Plaintiffs claim that the statements
contained in the YouTube videos are false. Id., ¶¶ 23, 25, 27, 29.
Plaintiffs have attempted to discover defendants’ identities by serving a
subpoena on Google, id. at 5, ¶ 10, which owns YouTube. The subpoena requested all
identifying information associated with the account that posted the relevant YouTube
videos. Id., ¶ 11. Plaintiffs have been unable to identify defendants other than to
determine that Enough 2M2 uses the email address of [e-mail] and
has an IP address of 178.215.210.219. Id. at 5-6, ¶¶ 14, 20.
On June 27, 2017, plaintiffs filed this lawsuit alleging six claims for relief: (1)
violation of the Lanham Act, 15 U.S.C. § 1125(a); (2) violation of the Colorado
Consumer Protection Act; (3) common law business disparagement under Colorado
law; (4) libel per se under Colorado law; (5) invasion of privacy by intrusion under
Colorado law; and (6) invasion of privacy by appropriation under Colorado law. Docket
No. 1 at 7-11, ¶¶ 40-73. On September 1, 2017, plaintiffs filed a motion for a
preliminary injunction and temporary restraining order based on the fourth claim for
relief.2 See Docket No. 6 at 10-12 (discussing plaintiffs’ likelihood of success on the
libel per se claim). On September 12, 2017, the Court held a hearing on that portion of
the motion seeking a temporary restraining order. Two days before the hearing,
plaintiffs sent notice of the hearing to [e-mail], the only known means
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Plaintiffs state that defendants published the same content on a separate
website. Docket No. 6 at 8, ¶ 35. At the T RO hearing, plaintiffs represented that the
website has been taken down and they no longer request injunctive relief related to that
website.
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to contact defendants. Docket No. 12-1. No attorney or person appeared on behalf of
defendants at the TRO hearing or otherwise contacted plaintiffs or the Court regarding
the hearing.
To succeed on a motion for temporary restraining order, the moving party must
show (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer
irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips
in the movant’s favor; and (4) that the injunction is in the public interest. RoDa Drilling
Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winter v. Natural Resources
Defense Council, Inc., 555 US. 7, 20 (2008)); see Little v. Jones, 607 F.3d 1245, 1251
(10th Cir. 2010)). “[B]ecause a preliminary injunction is an extraordinary remedy, the
right to relief must be clear and unequivocal.” Beltronics USA, Inc. v. Midwest Inventory
Distribution, LLC, 562 F.3d 1067, 1070 (10th Cir. 2009) (quoting Greater Yellowstone
Coalition v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003)) (internal quotation marks
omitted). Granting such “drastic relief,” United States ex rel. Citizen Band Potawatomi
Indian Tribe of Oklahoma v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th
Cir. 1989), “is the exception rather than the rule.” GTE Corp. v. Williams, 731 F.2d 676,
678 (10th Cir. 1984).
Plaintiffs have shown a likelihood of success on the merits. A statement is
libelous per se if “(1) the defamatory meaning is apparent from the face of the
publication without the aid of extrinsic proof; and (2) the statement is specifically
directed at a particular person.” Han Ye Lee v. Colorado Times, Inc., 222 P.3d 957,
961 (Colo. App. 2009). Traditionally, statements related to “a criminal offense” or “a

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matter incompatible with an individual’s business, trade, profession, or office” constitute
slander per se. Gordon v. Boyles, 99 P.3d 75, 79 (Colo. App. 2004) (citing
Restatement (Second) of Torts § 570). The YouTube videos contain allegations that
Muhaisen has engaged in criminal conduct and committed fraud in the course of his
legal practice. See Docket No. 6 at 6-7, ¶¶ 22, 24, 26, 28. Mr. Muhaisen has subm itted
declarations from himself and others that he has never engaged in such conduct. See
Docket Nos. 6-1, 6-2, 6-3. The Court finds that the relevant statements contained in the
four YouTube videos constitute libel per se because the def amatory meaning is
apparent from the face of the publication and the videos are directed at plaintiffs.
After the Court finds that a statement is libelous per se, plaintiffs must prove that
(1) the statement was published; (2) the statement caused actual damages; (3) the
statement was false; and (4) the defendant acted with reckless disregard as to falsity.
Denver Publ’g Co. v. Bueno, 54 P.3d 893, 899 n.8 (Colo. 2002); see also Colo. Jury
Inst. 22:1. The Court finds that the YouTube videos have been published. In addition,
plaintiffs have presented numerous pieces of evidence to suggest that the claims made
in the videos are false and that defendants do not have a basis for alleging that
plaintiffs engaged in improper or criminal conduct. See, e.g., Docket No. 6-1 at 2-3,
¶¶ 9-13. With respect to damages, Muhaisen is not required to prove actual damages
because he is a private person. Denver Publ’g Co., 54 P.3d at 900. The Court finds
that Muhaisen & Muhaisen LLC has provided proof demonstrating that it has suffered
actual damages. Plaintiffs’ counsel represented at the TRO hearing that the YouTube
videos appear in internet search results for the law firm and that colleagues have asked

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plaintiffs about the YouTube videos and their content. See also Docket No. 6-1 at 4, ¶
21 (“Colleagues have inquired about [the videos] and their content.”). Plaintiffs’ counsel
further represented that a number of law firms compete with plaintiffs in the area of
immigration law and that plaintiffs operate in a segment of that market where potential
clients are sensitive to the allegations contained in the YouTube videos. Plaintiffs’
counsel represented that, as a consequence of operating in a competitive environment,
plaintiffs have lost business and are likely to lose future business to some of their
competitors. Plaintiffs have provided adequate offers of proof to support their claim that
plaintiff Muhaisen & Muhaisen LLC suffered actual damages. Accordingly, the Court
finds that plaintiffs have demonstrated a likelihood of success on the merits on their
fourth claim for relief.
The Court finds that plaintiffs have shown that, in the absence of injunctive relief,
they will suffer irreparable harm. At the TRO hearing, plaintiffs presented offers of
proof that the YouTube videos appear when prospective clients search for Muhaisen or
his law firm. As an attorney, Mr. Muhaisen’s legal practice depends in part on his
reputation. See Keohane v. Stewart, 882 P.2d 1293, 1298 (Colo. 1994) (“[D]ef amatory
statements are so egregious and intolerable because the statement destroys an
individual’s reputation: a characteristic which cannot be bought, and one that, once lost,
is extremely difficult to restore.”). The videos additionally interfere with plaintiffs’ ability
to advertise their services and, in light of the competitive nature of the immigration legal
market, reduce the business available to plaintiffs.
The Court finds that the balance of equities tips in plaintiffs’ favor. Plaintiffs have
demonstrated that they will suffer harm should defendants be permitted to continue
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publishing the libelous statements. Defendants have no legitimate interest in publishing
statements that are made with reckless disregard for the truth and that have the primary
purpose of damaging plaintiffs’ reputations. Gertz v. Robert Welch, Inc., 418 U.S. 323,
340 (1974)(“[T]here is no constitutional value in false statements of fact.”).
The Court also finds that the injunction is in the public interest. T he public has a
substantial “interest in encouraging and fostering vigorous public debate.” Keohane,
882 P.2d at 1298. However, “[n]either the intentional lie nor the careless error
materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on
public issues.” Gertz, 418 U.S. at 340 (quoting New York Times Co. v. Sullivan, 376
U.S. 254, 270 (1964)). Because the Court f inds that plaintiffs have demonstrated a
likelihood of proving that defendants have made libelous statements with reckless
disregard for the truth, the temporary restraining order is in the public interest.
The Court finds that no bond is necessary pursuant to Fed. R. Civ. P. 65(c)
because it does not appear possible to quantify the damages that defendants may
suffer as a result of being required to take down the YouTube videos.
II. CONCLUSION
It is ORDERED pursuant to Fed. R. Civ. P. 65 that the portion of Plaintiffs’
Motion for a Temporary Restraining Order and Preliminary Injunction [Docket No. 6]
seeking a temporary restraining order is granted. It is further
ORDERED that defendants, defendants’ officers, agents, servants, employees,
and attorneys, and any other person in active concert or participation with those

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individuals are temporarily enjoined and restrained from posting, publishing, or
maintaining the following YouTube videos:
https://www.youtube.com/watch?v=GwSr9tHCtsA;
https://www.youtube.com/watch?v=IkyNFqS-hD8;
https://www.youtube.com/watch?v=rrb-7pJKZ3k;
https://www.youtube.com/watch?v=u5DdMOJ-csE.
It is further
ORDERED that this order will expire on September 26, 2017 unless extended by
the Court, upon motion by plaintiffs, for good cause. It is further
ORDERED that plaintiffs shall serve a copy of this order on defendants at the
email address known to plaintiffs.

Entered September 12, 2017, at 4:50 p.m.

BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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