Stelor Productions, v. Silvers

Filing 61

MOTION by Stelor Productions (Attorney ) for reconsideration of [52-1] order (dj, Deputy Clerk)

Case 9:05-cv-80393-DTKH

Document 61

Entered on FLSD Docket 07/11/2005

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO . 05-80393 CIV HURLEY/HOPKIN S
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Delaware limited liabili ty company, f/k/a STELOR PRODUCTIONS, INC . , Plaintiff, vs . STEVEN A . SILVERS, a Florida resident , Defendant .
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PLAINTIFF'S URGENT MOTION FOR RECONSID ERATION REGARDING ORDER REJECT ING IN PART AND APPROVING IN PART MAGISTRATE'S REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR PRELIMINARY IN JUNCTION Plaintiff Stelor Productions , LLC ("Stelor"), by and through undersigned counsel , hereby moves on the following grounds for reconsideration regarding the Court's July 5 , 2005 Order Rejecting in Pa rt and Approving in Part Magistrate ' s Report an d Recommendation on Plaintiff's Motion for Prelimina ry Injunction : 1 . The Order recites that defendant filed his wri tten objections to the Repo rt & Recommendation on June 16, 20051, and indicates that the Cou rt has "reviewed those objections, and made a de novo determination " with respect to the objected - to po rt ions of the Repo rt . Order at 1 . 2 . The Order, however, makes no reference to the extensive papers filed by Plaintiff on Friday, July 1, 2005 [DE## 53-59] in opposition to Defendant's objections . Those papers were timely filed, within 10 days of service of Defendant's objections . See Rule 72(b), Fed . R .

' The objections actually were served and filed on June 17, 2005 [DE# 46] .
BURLINGTON · WEIL · SCHWIEP · KAPLANI~BLONSKY, P .A . OFFICE IN THE GROVE PENTHOUSE 2699 SOUTH BAYSHORE DRIVE MIAMI, FLORIDA 33133 T: 305 .858.2900 F: 305 .858 .526 1
EMAIL :I.NFO@BWSKB .COM WWW . BWSKB .COM

Case 9:05-cv-80393-DTKH

Document 61

Entered on FLSD Docket 07/11/2005

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CASE NO . 05-80393 CIV HURLEY/HOPKIN S

Civ . P ., and Local Magistrate Judge Rule 4(b) . Since the papers were "night-box" filed, however, they were not actually received by the Clerk until the morning of Tuesday, July 5, 2005 (the court , of course , was closed on Monday , July 4, 2005 for the holiday), Accordingly, th e
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Tuesday, July 5, 2005 .
3 . Accordingly, Plaintiff respectfully requests that the issues be reconsidered, in the event that Plaintiff's opposition papers were not yet available to the Court . 4 . Plaintiff suggests that, as demonstrated by Plaintiff's Opposition, a showing of irreparable harm justifying preliminary injunction has been made . Plaintiff has "clearly shown a loss of prospective goodwill and customers," Freeplay Music Inc . v. Verance Corp ., 80 Fed . Appx . 137, 138 (2d Cir 2003) (unpub) (citing Tom Doherty Assocs ., Inc . v. Saban Entm't, Inc ., 60 F.3d 27 (2d Cir. 1995)), and the potential destruction of its business . In fact, Saban is one of the key cases on which Plaintiff relies, and was cited with approval in the Magistrate's Report, at 26-27 . In addition, Stelor has shown exactly what the Freeplay Court recognized would constitute irreparable harm : "that, because its licensing agreement with [Silvers] was its business, it would have no business to conduct" absent an injunction . Id. at 138-39 . 5 . As set forth in the Opposition, moreover, the unique business opportunity that will be lost to Plaintiff absent a preliminary injunction began, but did not end, with the product launch at the trade show in New York . The show generated substantial interest in Stelor from potential licensees and investors . Now, Stelor's business depends on its ability to finalize contracts with those licensees _ who are Stelor's customers - and attract the required investment capital . As the Opposition clearly demonstrates, continued access to the www.googles .co m

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BURLINGTON · WELL · SCHWIEP · KAPLANWBLONSKY, P .A . OFFICE IN THE GROVE P ENTHOUSE 2699 SOUTH BAYSHORE DRIVE MIAMI , FLORIDA T ; ; T: 305 . 858 .2900 F . 305 .858 .526 1 EMAIL :INFO@BWSKB. coM WWW.BWSKB .com

Case 9:05-cv-80393-DTKH

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CASE NO . 05-80393 CIV HURLEY/HOPKIN S

internet address is the single essential factor for these licensees and investors . The www .googles .com site is an existing and known site with an established user base, including 600,000 registered users, and continued traffic (hundreds of thousands of hits a day) . Withou t
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cannot provide, the business is simply not commercially viable . Stelor's Opposition fully documents this, including the loss of investment capital during the period the site was shut down .
6 . Absent entry of an injunction, Stelor's business will likely fail . This is not a situation where a business' profits may be diminished pending conclusion of a lawsuit . Rather, this is exactly the situation where, "the subject matter of the contract - specifically, the www .goo les .com internet address - is of such a special nature, [and] of such a peculiar value, that the damages, when ascertained according to legal rules, would not be a just and reasonable substitute for or representative of that subject matter in the hands of the party who is entitled to its benefit." A .L .K. Corp . v. Columbia Pictures Industries, Inc ., 440 F .2d 761 (3d Cir 1971) . In addition, Silvers has no financial ability whatsoever to compensate for losses, even if damage s

could be calculated , which they cannot .
7 . Indeed , as a long line of cases in addition to Saban directly holds, injunctive relief is required here , where a business ' destruction is threatened . E.g., McDonald 's Corp. v.

Robertson , 147 F .3d 1301, 1310 (11th Cir . 1998) (threat of lost profits and damage to reputation, where no realistic way to determine damages, constitutes irreparable harm) ; U.S. v. Bowman, 341 F .3d 1228, 1237 (11th Cir . 2003) ( potential harm to business from loss of goodwill and inability to sell its products constitutes irreparable harm ) ; Florida Businessmen for Free Enterprise v. City of Hollywood, 648 F .2d 956, 958 & n.2 (l lt' Cir. 1981) ("A substantial loss of business ma y

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BURLINGTON · WEIL · SCHWIEP · KAPLAN()BLONSKY, P .A . OFFICE IN THE GROVE PENTHOUSE 2699 SOUTH BAYSHORE DRIVE MIAMI, FLORIDA 33133 T: 305 .858 .2900 F : 305 .858 .526 1 EMAIL: INFO@BWSKB .COM WWW .BWSEB .COM

Case 9:05-cv-80393-DTKH

Document 61

Entered on FLSD Docket 07/11/2005

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CASE NO . 05-80393 CIV HURLEY/HOPKIN S

amount to irreparable injury if the amount of lost profits is difficult or impossible to calculate") ; Ferrero v. Associated Materials, Inc., 923 F .2d 1441, 1449 (1It" Cir . 1991) (damage to a business resulting from "the loss of customers and goodwill is an `irreparable' injury") ; see also Reuters v. United Press Int'l, Inc., 903 F .2d 904 (2d Cir. 1990) (reversing lower court order and mandating entry of preliminary injunction requiring wire service to provide news picture service under the terms of its contract based on irreparable harm caused by loss of service to plaintiff) ; Ferry-Morse Seed Co ., v. Food Corn, 729 F .2d 589, 592 (8th Cir . 1984) (affirming preliminary injunction requiring delivery of seed corn, as the competitive disadvantage suffered by plaintiff from the loss of the unique seed demonstrated "a classic situation for preliminary injunctive relief.") Green Stripe, Inc. v. Berny's Internationale, S.A. de C. V., 159 F . Supp . 2d 51 (E .D . Pa. 2001) (granting preliminary injunction requiring delivery of grapes to avoid irreparable harm of being forced out of Mexican grape market and loss of contracts with customers) . WHEREFORE, for these reasons, based on the Opposition submitted by Stelor, Plaintiff respectfully requests that this Court reconsider the Defendant's objections and the Magistrate's Report . BURLINGTON, WEIL, SCHWIEP, KAPLAN & BLONSKY, P .A . Attorneys for Plaintiff Office in the Grove, Penthouse A 2699 South Bayshore D ri v e

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BURLINGTON · WEIL · SCHWIEP · KAPLAN(8 BLONSKY, P .A .

OFFICE IN THE GROVE. PENTHOUSE 2699 SOUTH BAYSHORE DRIVE MIAMI , FLORIDA 33133 T : 305 .858 .2900 F : 305 .858 .526 1
EMAIL : INFO@BWSKB .COM WWW . BWSKB .COM

Case 9:05-cv-80393-DTKH

Document 61

Entered on FLSD Docket 07/11/2005

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CASE NO . 05-80393 CIV HURLEY/HOPKIN S

Miami, Florida 33133 Tel : [phone] Fax : [phone] Email : kka lan bwskb.com

Kevin C . Kaplan Florida Bar No . 933848 David J . Zack Florida Bar No . 641685 CERTIFICATE OF SERVIC E I HEREBY CERTIFY that a true copy of the foregoing was served via electronic mail and U .S . mail on this 7h day of July, 2005 upon the following :
Adam T . Rabin, Esq . DIMOND, KAPLAN &

ROTHSTEIN, P .A . Suite 70 8 200 S .E . First Street Miami , Flo ri da 33131

Kenneth R . Hart mann, Esq . Gail M . McQuilkin, Esq. KOZYAK TROPIN & THROCKMORTON, P .A . 2525 Ponce e Leon Blvd ., 91h Floo r Coral G e . Florida 3

Kevin C. Kaplan

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BURLINGTON · WEIL · SCHWIEP · KAPLAN ( ) BLONSKY, P .A . OFFICE IN THE GROVE PENTHOUSE 2699 SOUTH BAYSHORE DRIVE M IAMI, FLORIDA 33133

T : 305 .858 .2900 F : 305 .858 .526 1
EMAIL : INFO@jBWSKB . COM WWW .BWSKB .COM