Primo Broodstock, Inc. v. American Mariculture, Inc. et al

Filing 9

OPINION AND ORDER denying 2 Plaintiff's ex parte Motion for Temporary Restraining Order. Signed by Judge John E. Steele on 1/11/2017. (KP)

Case 2:17-cv-00009-JES-CM Document 9 Filed 01/11/17 Page 1 of 6 PageID 162

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PRIMO BROODSTOCK, INC.,
Texas corporation,

a

Plaintiff,
v.

Case No: 2:17-cv-9-FtM-29CM

AMERICAN MARICULTURE, INC.,
a
Florida
corporation,
AMERICAN PENAEID, INC., a
Florida
corporation,
ADVANCED
HATCHERY
TECHNOLOGY,
INC.,
ROBIN
PEARL, and CHARLES T. TUAN,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Plaintiff's ex parte
Motion for Temporary Restraining Order (Doc. #2) filed on January
9, 2017.

For the reasons set forth below, Plaintiff’s request for

a temporary restraining order is denied.
I.
On January 9, 2017 Primo Broodstock, Inc. (Plaintiff) filed
a three-count complaint (Doc. #1) alleging claims of common-law
conversion, trade secret misappropriation under Florida law, and
“passing off” in violation of Section 1125(a) of the Lanham Act,
15 U.S.C. § 1051 et seq.

The three claims are based on Defendants’

allegedly-unlawful distribution of Plaintiff’s live, geneticallyengineered shrimp (the Primo Shrimp).

Plaintiff asserts that

Primo Shrimp, which took “nearly two decades to develop,” (Doc.

Case 2:17-cv-00009-JES-CM Document 9 Filed 01/11/17 Page 2 of 6 PageID 163

#1, ¶ 24), are far superior to other shrimp because of their
“higher tolerance to White Spot Syndrome Virus (‘WSSV’) in cold
temperatures and superior growth in warmer temperatures.” 1
¶

13.)

The

Complaint

requests

a

temporary

and

(Id.

permanent

injunction and money damages, including punitive damages.
At the same time the Complaint was filed, Plaintiff also filed
the ex parte Motion for Temporary Restraining Order (Motion for
TRO or Motion) currently before the Court, 2 which requests an order
enjoining

Defendants,

for

a

period

of

fourteen

days,

“from

shipping, selling or otherwise removing or relocating any shrimp
broodstock in their possession or under their control, whether
directly or indirectly, pending determination of whether such
broodstock are descended or derived from Primo’s broodstock.”
(Doc. #2, p. 36.)

The basis for this request is Plaintiff’s

1

According to the Complaint, Defendants had access to the Primo
Shrimp pursuant to an agreement (the Grow Out Agreement) (Doc. #11) between Plaintiff and Defendant American Mariculture, Inc.
(AMI) allowing Plaintiff to use AMI’s facility for its operations.
In exchange, AMI was supplied “post-larvae shrimp and immature
shrimp broodstock” that AMI could “grow out” and then sell back to
Plaintiff at fixed prices.
(Doc. #1, ¶¶ 21, 23.)
Under the
Agreement, “any unauthorized sale, use or transfer to a secondary
facility of live Primo shrimp” was grounds for damages, (id. ¶
22), but AMI was allowed to kill the shrimp Plaintiff did not buy
back and sell them on the market for profit, with Plaintiff’s
authorization.
(Id. at ¶ 24.)
The Agreement states that all
Primo Shrimp are Plaintiff’s intellectual property, and that all
live Primo Shrimp belong to Plaintiff. (Id. ¶ 22.)
2

Plaintiff’s 37-page Motion violates the 25-page limitation set
forth in Middle District of Florida Local Rule 3.01(a). Counsel
should review the Local Rules, as future non-compliant filings may
be stricken from the docket.
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Case 2:17-cv-00009-JES-CM Document 9 Filed 01/11/17 Page 3 of 6 PageID 164

belief

that

distribution

of

live

Primo

Shrimp

outside

of

Plaintiff’s control will permit others to study and replicate the
creature’s unique, superior genetic makeup.

This will destroy the

“decades of painstaking selection, testing, cross-breeding, and
trial and error [that was needed for Plaintiff] to finally achieve
what is recognized as the heartiest and most disease-resistant
shrimp ever created.”

(Id. ¶ 2.)

The Court is unaware of whether

Defendants have been served with the Complaint or the Motion.
II.
To obtain a temporary restraining order, a party must first
establish that: i) it is substantially likely to succeed on the
merits of its underlying claims; (2) it will suffer imminent,
irreparable injury without injunctive relief; (3) such injury
outweighs the harm an injunction poses to the opposing party; and
(4) injunctive relief will serve the public interest.

Schiavo ex

rel. Schindler v. Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005).
Federal Rule of Civil Procedure 65(b) authorizes a court to grant
injunctive relief ex parte – that is, against a party who has not
yet received notice of the motion seeking injunctive relief and/or
had an opportunity to be heard.

To obtain such relief, however,

the movant must make a “clear[] show[ing] that immediate and
irreparable injury, loss, or damage will result . . . before the
adverse party can be heard in opposition.”

Fed. R. Civ. P. 65(b).

The Local Rules of this District state further that an ex parte
order “will be entered only in emergency cases to maintain the

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status

quo

until

the

requisite

notice

may

be

given

and

an

opportunity is afforded to opposing parties to respond to the
application for a preliminary injunction.”

M.D. Fla. R. 4.05(a).

To constitute a true “emergency,” the injury alleged must be “so
imminent

that

notice

and

a

hearing

on

the

application

for

preliminary injunction is impractical if not impossible.” 3

Id.

4.05(b)(2).
Plaintiff argues that without an immediate injunction, the
genetically-superior

Primo

Shrimp

“will

flood

the

market

and

destroy everything Primo and its President, Ken Gervais, have
scrupulously worked to protect over the past 16 years.”
¶ 58.)

(Doc. #2,

Plaintiff contends further that once this occurs, “it will

be very difficult - if not impossible - to put the genie back in
the bottle.” (Id. ¶ 87.)
The allegations in the Complaint and the attached Exhibits which are all this Court has to go on at this stage - do not

3

In addition to supporting the substantive elements of a claim
for injunctive relief, a motion seeking a temporary restraining
order must “set forth facts on which the Court can make a reasoned
determination as to the amount of security which must be posted
pursuant to Rule 65(c).” M.D. Fla. R. 4.05(b)(4)(ii). Rule 65(c)
states that a Court may issue a temporary restraining order “only
if the movant gives security in an amount that the court considers
proper to pay the costs and damages sustained by any party found
to have been wrongfully enjoined or restrained.” Fed. R. Civ. P.
65(c). Plaintiff’s Motion for TRO does not contain any facts from
which the Court may make a “reasoned determination” regarding the
amount of security needed. This procedural deficiency would alone
constitute sufficient grounds to deny the Motion. Intrepid Glob.
Imaging 3D, Inc. v. Athayde, No. 3:07-CV-1106J-33HTS, 2007 WL
4198428, at *1 (M.D. Fla. Nov. 26, 2007).
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justify an award of ex parte injunctive relief.

Rather than

establish that this case presents a true emergency, the materials
before

the

Court

indicate

that

live

Primo

Shrimp

have

been

available for distribution since at least as early as July 2016, 4
and were expected to be distributed in China last month (in
December 2016).

(Docs. # 1, ¶ 54; 1-9, ¶ 12; 1-10, ¶ 27.)

In

other words, the genie is likely already out of the bottle.
Moreover, even if no distribution of Primo Shrimp has yet
taken place, the Complaint fails to allege any specifics regarding
future shipments of live Primo Shrimp.

Consequently, there is no

reasoned basis for concluding that the harm Plaintiff anticipates
is “so imminent” that ex parte injunctive relief is warranted.
Centennial Bank v. Servisfirst Bank Inc., No. 8:16-CV-88-T-36JSS,
2016 WL 7366936, at *3 (M.D. Fla. Jan. 22, 2016) (denying motion
for temporary restraining order where plaintiff failed to offer
“concrete evidence” showing that breach of non-compete agreement
was imminent); Kotori Designs, LLC v. Living Well Spending Less,
Inc., No. 2:16-CV-637-FTM-99CM, 2016 WL 4375274, at *4 (M.D. Fla.
Aug. 17, 2016) (denying plaintiff’s ex parte motion to enjoin
shipment of product alleged to infringe plaintiff’s trademark

4

In July 2016, Plaintiff learned that Defendant Robin Pearl,
managing director of API, “had posted a lengthy message on [a]
Yahoo! Groups message board frequented by people in the shrimp
industry” stating that API had acquired ownership of a number of
Primo Shrimp and had about 50,000 “available for immediate
shipment.” (Id. ¶¶ 7, 39, 40.) Pearl also expressed API’s desire
to bring the Primo Shrimp “to the world market.” (Id. ¶ 41.)
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Case 2:17-cv-00009-JES-CM Document 9 Filed 01/11/17 Page 6 of 6 PageID 167

where allegedly-infringing product had already been commercially
available for several months); Chase Manhattan Bank v. Dime Sav.
Bank of N.Y., 961 F. Supp. 275, 276 (M.D. Fla. 1997) (denying
motion for temporary restraining order seeking to enjoin violation
of

no-solicitation

agreement

where

solicitations

had

been

occurring for months and there was no showing that “it would be
‘impractical if not impossible’ to provide a notice and hearing”).
Plaintiff’s request for an ex parte order enjoining Defendants
from distributing all shrimp in Defendants’ possession for a period
of fourteen days is, therefore, denied. 5
Accordingly, it is hereby
ORDERED:
Plaintiff's Motion for Temporary Restraining Order (Doc. #2)
is DENIED.
DONE and ORDERED at Fort Myers, Florida, this 11th day of
January, 2017.

Copies:
Counsel of Record

5

Because Plaintiff has not shown that, absent ex parte relief,
Plaintiff will suffer immediate, irreparable harm, the Court need
not address whether Plaintiff has established the other three
elements of a claim for injunctive relief. Siegel v. LePore, 234
F.3d 1163, 1176 (11th Cir. 2000) (stressing that “the absence of
a substantial likelihood of irreparable injury would, standing
alone, make preliminary injunctive relief improper”).
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