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

Filing 35

ORDER granting 15 Motion for Preliminary Injunction. See Order for details. Signed by Judge Timothy J. Corrigan on 5/14/2015. (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.
/

PRELIMINARY INJUNCTION ORDER
Plaintiff Epic Tech, LLC ("Epic Tech") filed its Verified Complaint (Doc. 1)
seeking a preliminary injunction and other equitable relief arising from federal claims for
copyright infringement, trademark infringement and unfair competition 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. On April 24,
2015, Epic Tech applied ex parte for a temporary restraining order and a preliminary
injunction pursuant to Rule 65, Federal Rules of Civil Procedure (Rule(s)). See Epic
Tech's Motion for Temporary Restraining Order and Preliminary Injunction and
Memorandum of Law (Doc. 15; "Motion"). In support of the Motion, Epic Tech filed the
affidavits of Jason Queen (Doc. 16), Terry Moore (Doc. 17), and Lee D. Wedekind, III
(Doc. 7).1 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
Motion. See Minute Entry (Doc. 31). On April 30, 2015, the Court entered an Ex Parte
Temporary Restraining Order and Scheduling of a Preliminary Injunction Hearing (Doc.
14; Temporary Restraining Order). This cause is now before the Court on Epic Tech’s
request to convert the Temporary Restraining Order into a preliminary injunction. See
Motion at 25.
In the Temporary Restraining Order, the Court directed Epic Tech to immediately
effect service of process on Defendants, and to provide them with a copy of the Motion,
the supporting affidavits, and the Court’s Temporary Restraining Order. The Court also
scheduled a hearing for 2:00 p.m. on Monday, May 11, 2015, to determine whether the
Temporary Restraining Order should be converted into a preliminary injunction.
Pursuant to the Order, Defendants had until noon on May 8, 2015, to file a response to
the Motion. Epic Tech effected service of process on all but one Defendant over a span

1

The Court cites to the redacted versions of these documents filed on the public docket. Unredacted
versions of the Motion, Queen Affidavit, and Moore Affidavit are filed under seal at documents 18-20. See
Order (Doc. 12).

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of days from May 4, 2015, to May 7, 2015.

See Notice of Filing (Doc. 23).2

Nonetheless, no Defendant appeared in this case or filed a response to the Motion. The
Court conducted the preliminary injunction hearing on May 11, 2015, at 2:00 p.m. as
scheduled, the record of which is incorporated herein by reference. Donald R. Pocock,
Ashley B. Summer and Lee D. Wedekind, III appeared at the hearing as counsel for Epic
Tech. Counsel for Epic Tech assured the Court that Epic Tech had served Defendants
with, inter alia, a copy of the Court’s Temporary Restraining Order, as directed, which
states the time and place of the hearing. Despite this notice, Defendants did not appear at
the hearing, nor did any counsel appear on their behalf.
Having considered the Verified Complaint, Motion, and affidavits filed in support
thereof, and in accordance with Rule 65(a) and Local Rule 4.06, the Court makes the
following findings for the limited purpose of resolving this Motion:
1.

The following Defendants in this case were provided sufficient notice of

the time and location of the preliminary injunction hearing by being served with copies of
the Verified Complaint, Summons and the Court’s Temporary Restraining Order on the
following dates:
a. Paradise Internet Café, LLC -- May 4, 2015
b. M&P Games, LLC -- May 4, 2015
c. Lucky Joes Sweepstakes LLC -- May 5, 2015
d. Staxx Amusement Distribution, LLC -- May 5, 2015
e. Tami L. Brenner -- May 7, 2015
2
Counsel for Epic Tech explained at the hearing on May 11, 2015, that service of process has not yet been
effected on Defendant George Patel because Epic Tech has been unable to locate him.

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f. Shaun B. Shoemaker -- May 5, 2015
g. Jon D. Goldstein -- May 6, 2015
h. Mitesh J. Patel -- May 5, 2015
i. Faruk Fatehali -- May 5, 2015
j. Ivan I. Vega -- May 4, 2015
2.

Service of process has not been made on Defendant George Patel because

Epic Tech has been unable to locate a current address for Mr. Patel.
3.

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

raised in the Verified 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
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).
4.

Epic Tech 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

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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.
5.

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
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.
6.

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

of Defendants by this Order 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 preliminary injunction under the circumstances.
7.

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

the requirements of Rule 65(a) and Local Rule 4.06 such that the Temporary Restraining
Order should be converted to a preliminary injunction at this time. Notwithstanding the

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entry of this Order, if any Defendant appears in this case and has reason to challenge
these findings, such Defendant may move to dissolve or modify this Preliminary
Injunction. The Court will consider any such motion on its merits. Accordingly, it is
ORDERED:
1. Epic Tech's Motion for Temporary Restraining Order and Preliminary
Injunction (Doc. 15/18) is GRANTED as follows.
2. Defendants,3 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
the Epic System software known as "Legacy."

Such prohibited

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 prohibited 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

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Except for Defendant George Patel, who has not been served.

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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 serve Defendants with a copy of this Preliminary
Injunction Order.
4. The Court finds that the bond in the amount of $37,500 previously set by the
Court in support of its Temporary Restraining Order is sufficient to protect the
Defendants for the duration of this Preliminary Injunction and directs that this
bond remain in place pending further order of the Court.
IT IS SO ORDERED, this 14th day of May, 2015.

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