Epic Tech, LLC v. Paradise Internet Cafe, LLC et al

Filing 14

EX PARTE TEMPORARY RESTRAINING ORDER. A hearing as to whether this Temporary Restraining Order should be converted into a preliminary injunction will be held on May 11, 2015, at 2:00 p.m. See Order for details. Signed by Judge Timothy J. Corrigan on 4/30/2015. (MHM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

EPIC TECH, LLC,
Plaintiff,
v.

Case No. 3:15-cv-00530-J-34JRK

PARADISE INTERNET CAFÉ, LLC,
M&P GAMES, LLC, LUCKY JOES
SWEEPSTAKES LLC, STAXX
AMUSEMENT DISTRIBUTION, LLC,
TAMI L. BRENNER, also known as
TAMI LEAH PATEL, GEORGE PATEL,
SHAUN B. SHOEMAKER, JON D.
GOLDSTEIN, MITESH J. PATEL,
FARUK FATEHALI, and IVAN I. VEGA,
Defendants.
/

EX PARTE TEMPORARY RESTRAINING ORDER
AND SCHEDULING OF A PRELIMINARY INJUNCTION HEARING
Plaintiff Epic Tech, LLC ("Epic Tech") filed its Verified Complaint (Doc. 1)
seeking a permanent injunction and other equitable relief arising from federal claims for
copyright infringement, trademark infringement (under both federal and common law),
and unfair competition (including false designation of origin and advertising) and state
law claims for conversion, misappropriation of trade secrets, and unfair and deceptive
trade practices. The Verified Complaint alleges, inter alia, that Defendants have violated
Section 501 of the Copyright Act, 17 U.S.C. § 501, Sections 32 and 43 of the Lanham
(Trademark) Act, 15 U.S.C. §§ 1114(1) and 1125(a)(1)(A), and Florida's Uniform Trade

Secrets Act, Fla. Stat. § 688.001 et seq., in connection with alleged piracy and
unauthorized use of sweepstakes gaming software owned by Epic Tech. Epic Tech has
applied ex parte for a temporary restraining order and a preliminary injunction pursuant
to Rule 65(b), Federal Rules of Civil Procedure (Rule(s)). See Epic Tech's Motion for
Temporary Restraining Order and Preliminary Injunction and Memorandum of Law (the
"TRO Motion"). In support of the TRO Motion, Epic Tech filed the affidavits of Jason
Queen, Terry Moore, and Lee D. Wedekind, III. The Court conducted an ex parte
telephone hearing with counsel for Epic Tech on April 29, 2015, to verify and discuss the
allegations raised in the Complaint and TRO Motion, the record of which is incorporated
herein by reference. See Minute Entry (Doc. 31).
Having considered the Verified Complaint, TRO Motion, and affidavits filed in
support thereof, and in accordance with Rule 65(b) and Local Rule 4.05, the Court makes
the following findings for the limited purpose of resolving this Motion:
1.

As this matter pertains to federal copyright and trademark claims, this

Court has jurisdiction over the subject matter of this case pursuant to 28 U.S.C. §§ 1331
and 1338. In addition, the Court has jurisdiction over the state law claims raised in the
Complaint pursuant to 28 U.S.C. § 1367. Based on the allegations in the Complaint,
there is good cause to believe the Court will have personal jurisdiction over all the parties
to this action, and venue in this District is proper.
2.

Injunctive relief is authorized by both federal and state law for the claims

raised in the Complaint.

See 17 U.S.C. § 1322 (copyrights); 15 U.S.C. § 1116(a)

(trademarks); Fla. Stat. § 688.003(1) (trade secrets). Under the law of the Eleventh

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Circuit, to obtain injunctive relief, a movant must show: (1) the movant has a substantial
likelihood of success on the merits; (2) irreparable injury will be suffered if the injunction
does not issue; (3) the threatened injury to the movant outweighs whatever damage the
proposed injunction will cause the opposing party; and (4) that the proposed injunction
would not be adverse to the public interest. See All Care Nursing Serv., Inc. v. Bethesda
Memorial Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989).
3.

Plaintiff has shown a substantial likelihood of success on the merits of its

trademark, copyright and trade secret claims. The Court finds good cause to believe that
Defendants have engaged and are likely to continue to engage in acts or practices that
violate Section 501 of the Copyright Act, 17 U.S.C. § 501; Sections 32 and 43 of the
Lanham (Trademark) Act, 15 U.S.C. §§ 1114(1) and 1125(a)(1)(A), and Florida's
Uniform Trade Secrets Act, Fla. Stat. § 688.001 et seq. Specifically, Epic Tech has
presented evidence that Defendants are utilizing and/or distributing a software system
known as “Falcon,” which has identical or substantially similar images, themes, and
functions as Epic Tech’s “Legacy” software system.

Based on the limited record

currently before the Court, it appears that the “Falcon” software system makes
unauthorized use of Epic Tech’s copyrighted art, registered and unregistered trademarks,
and trade secrets.
4.

Upon review of the specific facts set forth in the Affidavits and Verified

Complaint, the Court finds that Epic Tech has sufficiently established that it will suffer
irreparable harm from Defendants' ongoing violations unless Defendants are restrained
and enjoined by Order of this Court. In particular, Epic Tech has established that: its

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rights under copyright, trademark and trade secret law are harmed by Defendants’
ongoing use of the purportedly infringing software, it risks irreparable harm to its
business reputation and goodwill, and, as it appears Defendants may be using Epic
Tech’s products in a way that is prohibited by Florida law, Epic Tech could be harmed by
an association with illegal activity.
5.

On the current record, the Court finds that any harm to the private interests

of Defendants by this Order, especially in light of its limited duration, does not outweigh
the potentially irreparable injury to Epic Tech absent injunctive relief. The Court further
finds that the public interest weighs in favor of the entry of a temporary restraining order
under the circumstances.
6.

Finally, the Court determines that, in accordance with Rule 65(b) and

Local Rule 4.05(b)(2), this Temporary Restraining Order should be issued without prior
notice to Defendants. Epic Tech has set forth sufficient facts to support a finding that
prior notice to Defendants cannot be given because such notice would thwart the
likelihood of effective relief. Specifically, Epic Tech maintains that the product at issue
is easily transportable, concealable and destroyable. See Affidavit of Lee D. Wedekind,
III ¶¶ 6-9. Moreover, at the hearing, counsel for Epic Tech stated that he had reason to
believe that Defendants may have already undertaken efforts to conceal or remove
evidence of infringement. Thus, based on the representations in the TRO Motion and
those made during the April 29, 2015 hearing, the Court finds good cause for relieving
Epic Tech of the duty to provide Defendants with prior notice of the TRO Motion.

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7.

In light of the foregoing, the Court concludes that Epic Tech has satisfied

the requirements of Rule 65(b) and Local Rule 4.05 such that a Temporary Restraining
Order is warranted at this time. However, in issuing this Temporary Restraining Order,
the Court understands that Defendants have not yet been given an opportunity to be
heard. As such, the Court emphasizes that these findings are based on the limited record
before the Court at this time and it is not making a final decision on any request for
preliminary injunctive relief.

Nonetheless, the Court is persuaded that issuing the

Temporary Restraining Order until a full hearing can be held on the Epic Tech's request
for preliminary injunctive relief is the lawful and proper action. Accordingly, it is
ORDERED:
1. Epic Tech's Motion for Temporary Restraining Order and Preliminary
Injunction and Memorandum of Law is GRANTED, in part.
a. Epic Tech’s Motion is GRANTED to the extent that the Court enters a
Temporary Restraining Order as set forth below.
b. In all other respects, Epic Tech’s Motion is TAKEN UNDER
ADVISEMENT.
2. Defendants, their agents, servants, employees, confederates, attorneys, and
any person acting in concert or participation with them, who receive actual
notice of this Order by personal service or otherwise, are prohibited directly
or indirectly from:
a. Copying, reproducing, marketing, distributing, selling or otherwise using
in any way, any reproduction, counterfeit, copy, or colorable imitation of

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the Epic System software known as "Legacy."

Such reproduction,

counterfeit, copy or colorable imitation includes but is not limited to the
software system known as “Falcon.”
b. Operating or offering to the public any machines or online video or
gaming systems or programs that use any reproduction, counterfeit, copy,
or colorable imitation of the Epic System software known as "Legacy."
Such reproduction, counterfeit, copy or colorable imitation includes but is
not limited to the software system known as “Falcon.”
c. Erasing, deleting, altering or destroying infringing copies of software
installed on its computers or destroying or removing any documents,
electronic files or business records that relate to the copying, reproduction,
duplication, dissemination, or distribution of any infringing copies of Epic
Tech's software, including but not limited to the software system known as
“Falcon.”
3. Epic Tech is directed to comply with Local Rule 4.05(b)(5) and immediately
effect of service of process on Defendants in accordance with Rule 4, and to
provide Defendants with all of the materials required by the Local Rules.
4. Execution on this Temporary Restraining Order is conditioned on Epic Tech's
first filing with the Clerk of the Clerk an undertaking in the form of a bond,
certified, cashier's or attorney's check or cash in the amount of $37,500 to
secure payment of such costs and damages not to exceed the amount that may
be suffered or sustained by any party who is found to be wrongfully restrained

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or who is damaged by the entry of this Order.
5. A hearing as to whether this Temporary Restraining Order should be
converted into a preliminary injunction will be held on May 11, 2015, at 2:00
p.m., in Courtroom 10D, Tenth Floor, United States Courthouse, 300 North
Hogan Street, Jacksonville, Florida.1 However, Defendants may request that
the Court conduct the preliminary injunction hearing at an earlier date if
desired.
6. The hearing is expected to be conducted in accordance with Local Rule 4.06
and Rule 65, Federal Rules of Civil Procedure. The case does not appear to
involve the exceptional situation wherein the Court would allow the parties to
submit evidence at the hearing. See Local Rule 4.06(b). Thus, the hearing will
be limited to the written submissions and arguments of counsel.
7. Defendants shall file their response to the Motion, including all counter or
opposing affidavits, and a legal memoranda with the Court no later than noon
on Friday, May 8, 2015.
8. This Order shall expire on May 14, 2015 at 5:00 p.m. (eastern), unless
extended or sooner dissolved.

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All persons entering the Courthouse must present photo identification to Court Security
Officers. Although cell phones, laptop computers, and similar electronic devices
generally are not permitted in the building, attorneys may bring those items with them
upon presentation to Court Security Officers of a Florida Bar card (presentation of the
Duval County Courthouse lawyer identification card will suffice) or Order of special
admission pro hac vice. However, all cell phones must be turned off while in the
courtroom.
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IT IS SO ORDERED, this 30th day of April, 2015 at 4:30 p.m.

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