Magazine Publishers' Service, Inc. v. Nam Marketing of Fl Gulf Coast, Inc. et al
Filing
21
OPINION AND ORDER denying 18 Motion for preliminary injunction. Signed by Judge John E. Steele on 10/13/2011. (SVC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MAGAZINE PUBLISHERS' SERVICE, INC.,
Plaintiff,
vs.
Case No.
NAM MARKETING OF FL
INC., JOHN BLALOCK,
GULF
2:11-cv-442-FtM-29SPC
COAST,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Motion for
Preliminary Injunction and Supporting Memorandum of Law (Doc. #18)
filed on September 21, 2011.
No opposition has been filed, and the
time to respond has expired.
I.
Plaintiff,
Magazine
Publishers’
Service,
Inc.
(“MPS”
or
plaintiff), is a corporation engaged in the business of selling
magazine subscriptions. Defendant, Nam Marketing of Fl Gulf Coast,
Inc. (“NAM” or defendant), is a competitor of MPS.
John Blalock,
the President of NAM, is also named as a defendant.
MPS alleges that NAM improperly obtained its proprietary
information, including customer names, account numbers, credit card
numbers, magazines the customers subscribe to, and other personal
information. Defendants allegedly used this information to contact
MPS customers claiming to be, or represent, MPS.
NAM purportedly
suggested that the customers change their current accounts from 30
monthly payments to 20 monthly payments, with an adjustment of
monthly payments from $33.70 to $49.40.
According to the callers,
the change in monthly payments would save the customers money.
Plaintiff alleges that NAM attempted to have MPS’s customers change
their payment plans in order to switch the customers’ accounts from
MPS to NAM.
Plaintiff filed a five-count Complaint (Doc. # 1) alleging
Tortious Interference with Contract (Count I), Misappropriation of
Trade Secrets (Count II), Conversion (Count III), violation of
Florida
Statute
501.204
(Count
IV),
and
violation
of
the
Telemarketing and Consumer Fraud and Abuse Prevention Act (Count
V)1.
As to the instant motion, plaintiff seeks a preliminary
injunction against NAM, together with its agents, officers, and
employees
prohibiting
them
from:
(1)
contacting,
soliciting,
charging, or recruiting any MPS customers; (2) using, selling, or
disseminating any of MPS’s customers’ personal information, account
numbers, credit card numbers, names, addresses, telephone numbers,
or any other private proprietary information obtained from MPS; and
(3)
destroying
any
and
all
records
and
documents
in
NAM’s
possession and control that reveal the names and telephone numbers
1
The Court notes that the complaint only contains five (5)
counts. However, plaintiff mistakenly labeled the fifth count as
Count VI.
-2-
of each and every MPS customer that was contacted by NAM.
(Doc. #
18).
II.
In the Eleventh Circuit, issuance of “a preliminary injunction
is an extraordinary and drastic remedy that should not be granted
unless the movant clearly carries [the] burden of persuasion on
each of [four] prerequisites.”
SunTrust Bank v. Houghton Mifflin
Co., 268 F.3d 1257(11th Cir. 2001).
Robertson,
147
F.3d
1301,
1306
See also McDonald’s Corp. v.
(11th
Cir.
1998).
The
four
prerequisites for a preliminary injunction are: (1) a substantial
likelihood of succeeding on the merits; (2) a substantial threat of
irreparable
injury
if
relief
is
denied;
(3)
an
injury
that
outweighs the opponent’s potential injury if relief is granted; and
(4) an injunction would not harm or do a disservice to the public
interest.
Winter v. Natural Defense Council, 129 S. Ct. 365, 374,
___ U.S. ___ (2008); SunTrust Bank, 252 F.3d at 1166; American Red
Cross v. Palm Beach Blood Bank, 143 F.3d 1407, 1410 (11th Cir.
1998); Gold Coast Publications, Inc. v. Corrigan, 42 F.3d 1336,
1343 (11th Cir. 1994).
The burden of persuasion for each of the
four requirements is upon the movant.
Siegel v. LePore, 234 F.3d
1163, 1176 (11th Cir. 2000)(en banc).
III.
In support of its motion, plaintiff provided affidavits of its
General Manager, Pat Ward (Doc. # 18-1, Exh. A), and one of its
-3-
customers, Leesa Engler (Doc. # 18-2, Exh. B).
Ward’s affidavit
alleges that “on or about July 13, 2011, MPS started receiving
complaints from customers in which they reported that they had been
contacted by NAM pretending to be MPS, and that NAM had their
personal
MPS
information.”
account,
(R.
credit
Doc.
card,
18-1, Exh.
and
magazine
A, ¶ 6.)
subscription
Ward’s affidavit
does not indicate how the customers determined that it was NAM,
rather
than
affidavit
MPS,
who
made
merely alleges
the
that
alleged
NAM
phone
made
calls.
the phone
Ward’s
calls,
but
provides no evidence that establishes defendant was the responsible
party.
Engler’s
affidavit
fails
to
shed
light
on
the
subject.
Engler’s affidavit does not indicate the entity that contacted her.
Instead, she attests that she received a telephone call from a
person who represented themselves as MPS.
(Doc. # 18-22, ¶ 2.)
Engler later discovered that her credit card had been charged for
her magazine subscription by an entity other than MPS.
8.
Her affidavit does not identify the entity.
Id.
at ¶
As such, Engler’s
affidavit fails to allege, much less establish, that NAM was the
responsible party for the telephone calls.
The Court recognizes that plaintiff’s complaint alleges that
customers called with complaints that they had received telephone
calls from individuals “falsely claiming to be or represent MPS”
(Doc. # 1, ¶ 13).
However, neither affidavit provided by the
-4-
plaintiff
supports
this
allegation.
Because
a
preliminary
injunction is an extraordinary remedy, the Court declines to the
grant the motion based on these affidavits.
As such, plaintiff has failed to demonstrate a substantial
likelihood of success on the merits because it has not established
that NAM is responsible for the alleged telephone calls.
Failure
to prove one of the factors for a preliminary injunction is fatal.
United States v.
Jefferson Cnty 720 F.2d 1511, 1519 (11th Cir.
1983); Canal Authority of Florida v.
(5th
Cir.
1974)2.
Because
Callaway, 489 F.2d 567, 572
plaintiff
has
not
demonstrated
a
substantial likelihood of success on the merits, the Court need not
address
the
other
factors
necessary
for
the
issuance
of
a
preliminary injunction.
Furthermore, the Court notes that the preliminary injunction
requested by MPS seeks, among other requests, to enjoin NAM from
destroying records that indicate that it has contacted MPS’s
customers. The Eleventh Circuit has repeatedly held that “obey the
law” injunctions are unenforceable.
Rehab. Facilities, Inc.
v.
See, e.g., Florida Ass’n of
State of Florida Dept. of Health and
Rehabilitative Servs., 225 F.3d 1208, 1222-1223 (2000); Burton v.
City
of
Belle
Glade,
178
F.3d
2
1175,
1200
(11th
Cir.
1999).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc) the Eleventh Circuit adopted as binding precedent
all the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
-5-
Defendants are already bound by a legal duty not to destroy
evidence and any willful destruction of evidence will be dealt with
appropriately by the Court.
Accordingly, it is now
ORDERED:
Plaintiff’s Motion for Preliminary Injunction and Supporting
Memorandum of Law (Doc. #18) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
October, 2011.
Copies:
Counsel of record
-6-
13th
day of
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