Mountain Ski Trip, LLC v. Botsford et al
ORDER. A hearing is set for December 12, 2017 at 9:00 a.m. in Courtroom A701 before Judge Philip A Brimmer on plaintiff's Motion for Temporary Restraining Order 2 . At or before 4:00 p.m. December 8, 2017, plaintiff shall file a pleading indicating what notice plaintiff has given to defendant Tyler J. Botsford of the hearing on the motion for a temporary restraining order. By Judge Philip A. Brimmer on 12/8/17. (pabsec)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 17-cv-02943-PAB
MOUNTAIN SKI TRIPS, LLC, a Colorado Limited Liability Company,
TYLER J. BOTSFORD,
VR MARKETERS, and
GREEN MONKEY MARKETING LLC,
This matter is before the Court on that portion of plaintiff’s Motion for Temporary
Restraining Order and Preliminary Injunction [Docket No. 2] that requests issuance of
an ex parte temporary restraining order. Plaintiff Mountain Ski Trips, LLC seeks a
temporary restraining order (“TRO”) enjoining defendant Tyler J. Botsford “from selling
or otherwise transferring control of www.BreckenridgeLodging.com and requiring
Defendant Botsford to maintain that domain in the exact same condition it was in at
noon Denver time, on November 15, 2017.” Docket No. 2 at 10. Plaintif f alleges that it
purchased the domain www.BreckenridgeLodging.com (“the domain”) from Mr.
Botsford, but that Mr. Botsford refuses to relinquish control of the domain. Docket No.
2-1 at 3-5 (domain name purchase agreement dated January 21, 2014).
Pursuant to Fed. R. Civ. P. 65(b)(1)(A), a TRO may only be issued without notice
to opposing parties if “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.” Moreover, Local Rule 65.1 requires that
a motion for a TRO be “accompanied by a certificate of counsel” either (1) stating
“actual notice of the time of filing the motion, and copies of all pleadings and documents
filed in the action to date or to be presented to the court at the hearing ” have been
provided to counsel for opposing parties or (2) describing the efforts made to provide
opposing parties with notice and copies of the required documents. D.C.COLO.LCivR
Plaintiff’s motion states:
Undersigned Counsel hereby certifies that the attached Cease and Desist
Letter attached hereto as Exhibit 7 was e-mailed to Defendant Botsford on
November 16, 2017, that Mr. Botsford indicated that he received the
Cease and Desist Letter on November 16, 2017, that based on my client’s
review of the domain, Defendant Botsford removed [plaintiff’s] webpages
from the domain within 24 hours of receiving the Cease and Desist Letter.
I believe giving Defendant Botsford notice of an impending Temporary
Restraining Order before it can be enforced against him will invite him to
cause additional irreparable injury to the domain and the interests of
Docket No. 2 at 9, ¶ 44. 1 Plaintiff claims that Mr. Botsford offered to sell the domain to
a third party “at some point between November 30, 2017 and December 5, 2017.” Id.
at 6-7, ¶ 27. Plaintiff argues that “based on Defendant Botsford[’s] almost immediate
disabling of the [plaintiff’s] website on the breckenridgelodging.com domain in response
to the Cease and Desist Letter Undersigned Counsel e-mailed to him on November 16,
2017, it seems certain that Defendant would attempt to transfer control of the domain to
Plaintiff also filed an “Information for Temporary Restraining Order” stating this
same information as the reason that defendants had not been notified. Docket No. 7 at
a non-party if he is aware Plaintiff were seeking a Temporary Restraining Order
preventing him from doing so once he is served with such an Order.” Id. at 9, ¶ 42.
A request for an ex parte TRO requires “the court to serve as the absent party’s
advocate, triggering intense judicial scrutiny of a plaintiff’s claims, the relief it seeks, and
most importantly, its proffered justification for proceeding ex parte.” Adobe Sys., Inc. v.
S. Sun Prod., Inc., 187 F.R.D. 636, 639 (S.D. Cal. 1999). W hile plaintiff claims that Mr.
Botsford has attempted to sell the domain in the past, plaintiff provides no evidence for
this assertion. See Docket No. 2 at 6-7, ¶ 27. Plaintiff did not file a verified complaint
and the affidavits of Drew Ewing and Michael Archer provided by plaintiff do not
address the purported necessity for ex parte action, i.e., that Mr. Botsford may sell or
transfer control of the domain if notified. Docket No. 1; Docket No. 2-1 at 1-2; Docket
No. 2-10. Accordingly, plaintiff has failed to satisfy the requirement of Fed. R. Civ. P.
65(b)(1)(A) to provide “specific facts in an affidavit or a verified complaint” that “clearly
show that immediate and irreparable injury” will result if an ex parte TRO is not issued.
In fact, the evidence provided by plaintiff tends to show that Mr. Botsford is not seeking
to transfer ownership or control of the domain. Mr. Botsford indicates in the emails
attached to plaintiff’s motion that he intends to use the dom ain for “a new website,”
Docket No. 2-5, or “rent” the domain. Docket No. 2-7. Moreover, Mr. Botsford has
been aware of the dispute since at least plaintiff’s November 16, 2017 letter, and
plaintiff provides no reason to conclude that notice of the motion would suddenly cause
plaintiff to sell the domain. See Am. Can Co. v. Mansukhani, 742 F.2d 314, 323 (7th
Cir. 1984) (“Where there are no practical obstacles to giving notice to the adverse party,
an ex parte order is justified only if there is no less drastic means for protecting the
plaintiff's interests.”); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 2951 (3d ed. 1995) (“The issuance of an ex parte
temporary restraining order is an emergency procedure and is appropriate only when
the applicant is in need of immediate relief.” (footnotes omitted)). Therefore, the Court
finds that plaintiff has not provided sufficient basis for the issuance of a TRO on an ex
parte basis. Accordingly, the Court will schedule a hearing on plaintiff’s request for a
TRO conditioned on plaintiff providing Mr. Botsford adequate notice of the TRO
hearing. The Court will vacate that hearing if plaintiff fails to provide prompt notice to
Mr. Botsford or his attorney.
Therefore, it is
ORDERED that a hearing is set for December 12, 2017 at 9:00 a.m. in
Courtroom A701 before Judge Philip A Brimmer on plaintiff’s Motion for Temporary
Restraining Order [Docket No. 2]. It is further
ORDERED that, at or before 4:00 p.m. December 8, 2017, plaintiff shall file a
pleading indicating what notice plaintiff has given to defendant Tyler J. Botsford of the
hearing on the motion for a temporary restraining order.
DATED December 8, 2017.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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