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

Filing 22

PRELIMINARY INJUNCTION. The portion of Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction 6 seeking a preliminary injunction is granted. This Order will remain in effect pending final disposition of plaintiffs' lawsuit or further order of this Court. Plaintiffs shall serve a copy of this order on defendants at the email addresses known to plaintiffs. By Judge Philip A. Brimmer on 10/10/17. (pabsec) Modified on 10/10/2017 to edit title of order (pabsec).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 17-cv-01575-PAB-KLM
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.
_____________________________________________________________________
PRELIMINARY INJUNCTION
_____________________________________________________________________
This matter is before the Court on that portion of Plaintiffs’ Motion for a
Temporary Restraining Order and Preliminary Injunction [Docket No. 6] seeking a
preliminary injunction. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
The Court held a hearing on plaintiffs’ motion for a preliminary injunction on
October 10, 2017. Four days before the hearing, plaintiffs sent notice of the hearing to
the following email addresses associated with defendants: [e-mail],
[e-mail], [e-mail]. Docket No. 19 at 1. The email
notices sent to the first two email addresses were returned as undeliverable. Docket
No. 19-2 at 1-2. No attorney or person appeared on behalf of defendants at the
hearing or otherwise contacted plaintiffs or the Court regarding the hearing. The Court
finds that defendants received notice of the preliminary injunction hearing, but chose
not to appear.

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
6-7, ¶¶ 22, 24, 26, 28. At the hearing on the portion of the motion seeking a temporary
restraining order (“TRO”), 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. At the preliminary
injunction hearing, plaintiffs’ counsel represented that the email address
[e-mail] has since been disabled. Plaintiffs’ counsel further informed
the Court that on September 17, 2017, defendants circulated an unknown number of

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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.
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emails containing links to the YouTube videos and other allegedly defamatory content
using the email addresses [e-mail] and [e-mail]; however,
plaintiffs believe these are false email addresses. Docket No. 20 at 2.
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
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.
On September 12, 2017, the Court entered an order tem porarily enjoining
defendants from posting, publishing, or maintaining the following YouTube videos:

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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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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. Docket No. 14 at 6-7. On
September 25, 2017, the Court granted a 14-day extension of the temporary restraining
order due to ongoing violations by defendants. Docket No. 17 at 2.
In support of their request for a preliminary injunction, plaintiffs state that
defendants have failed to comply with this Court’s TRO directing removal of the online
libelous content. Docket No. 20 at 1-2. Google has also declined to remove the
YouTube videos. Docket No. 16 at 2; Docket No. 16-2 at 1-3; Docket No. 20 at 3-4.
Since entry of the TRO, plaintiffs further claim they have become aware of a new
website created by defendants, www.JMuhaisen.com, which contains four pages of
similar, disparaging content and links to two of the enjoined YouTube videos. Docket
No. 16 at 3-4. 3 Plaintiffs state that the new domain name was purchased from
www.1and1.com (“1&1 Internet”), a site that offers services similar to
www.godaddy.com. Docket No. 16 at 2, ¶ 4. On September 20, 2017, plaintiffs sent
the Court’s TRO to 1&1 Internet. Docket No. 16 at 3, ¶ 12. As of October 9, 2017,
however, 1&1 Internet had not responded to plaintif fs regarding the order, and both the

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At the preliminary injunction hearing, plaintiffs’ counsel identified the videos
linked to on the website as the first and fourth videos listed in the footnote in the TRO
[Docket No. 14]. Those videos are posted on the following sites:
https://www.youtube.com/watch?v=GwSr9tHCtsA;
https://www.youtube.com/watch?v=u5DdMOJ-csE. See Docket No. 14 at 1 n.1.
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YouTube videos and the new website remained available online. Docket No. 20 at 4,
¶¶ 6-8.
To succeed on a motion for a preliminary injunction, 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).
This Court finds that 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
matter incompatible with an individual’s business, trade, profession, or office” constitute

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slander per se. Gordon v. Boyles, 99 P.3d 75, 79 (Colo. App. 2004) (citing
Restatement (Second) of Torts § 570). Both the YouTube videos and the website,
www.JMuhaisen.com, contain allegations that Muhaisen has engaged in criminal
conduct and committed fraud in the course of his legal practice. See Docket No. 6 at 67, ¶¶ 22, 24, 26, 28; Docket No. 16 at 3, ¶¶ 9, 11; Docket No. 20 at 4, ¶ 8. Mr.
Muhaisen has submitted 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 and on the website,
www.JMuhaisen.com, constitute libel per se because the defamatory meaning is
apparent from the face of the publication and the videos and disparaging allegations
are directed at plaintiffs.
After a court finds that a statement is libelous per se, a plaintiff 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 and the statements on the website,
www.JMuhaisen.com, have been published. In addition, plaintiffs have presented
numerous pieces of evidence to suggest that the claims made in the videos and on the
website 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, Mr. 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

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that Muhaisen & Muhaisen LLC has provided proof demonstrating that it has suffered
actual damages. Plaintiffs’ counsel represented at the TRO and preliminary injunction
hearings that the YouTube videos and the website, www.JMuhaisen.com, appear in
internet search results for the law firm and that colleagues have asked 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 stated
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. At the preliminary injunction hearing, plaintiffs similarly stated that the
website www.JMuhaisen.com appears as the second hit behind Mr. Muhaisen’s prim ary
website. 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,
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is extremely difficult to restore.”). The videos and the website www.JMuhaisen.com
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
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 preliminary injunction 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 and the website,
www.JMuhaisen.com.

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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 preliminary injunction 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
individuals are 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 defendants, defendants’ officers, agents, servants, employees,
and attorneys, and any other person in active concert or participation with those
individuals are enjoined and restrained from maintaining all libelous content published
on the website www.JMuhaisen.com. It is further
ORDERED that, pursuant to this Order, Google and 1&1 Internet are authorized
to remove all libelous content published online by defendants, including
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; and

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all content published on www.JMuhaisen.com. It is further
ORDERED that this Order will remain in effect pending final disposition of
plaintiffs’ lawsuit or further order of this Court. It is further
ORDERED that plaintiffs shall serve a copy of this order on defendants at the
email addresses known to plaintiffs.

Entered October 10, 2017, at 5:43 p.m .

BY THE COURT:

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

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