Idaho Golf Partners, Inc. v. Penninsula Beverage Co. et al

Filing 147

MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED: Defendant's Motion for Reconsideration (Dkt. 142) is DENIED. Plaintiff's Request for Declaratory Judgment is GRANTED. Defendant's Request for Permanent Injunction is GRANTED IN PART and DENIED IN PART. The Court will file a separate Judgment laying out the terms of the permanent injunction. Signed by Judge B. Lynn Winmill. (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
IDAHO GOLF PARTNERS, INC.,
Case No. 1:14-cv-00233-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
TIMBERSTONE MANAGEMENT,
LLC.,
Defendant.
INTRODUCTION
Pending before the Court are Plaintiff’s claims for declaratory relief, Defendant’s
claims for injunctive relief, and Defendant’s Motion to Reconsider the Court’s August
17, 2017 Memorandum Decision and Order. (Dkt. 142). For the reasons described below,
the Court will deny Defendant’s motion to reconsider, and will enter a limited permanent
injunction governing Plaintiff’s use of the TimberStone mark in Southwestern Idaho
PROCEDURAL BACKGROUND
On August 17, 2017, the Court entered a Memorandum Decision and Order
addressing the parties’ post-trial motions in this case. (Aug. 17, 2017 Order, Dkt. 137). 1

1

The Court previously laid out the procedural history of this case in its August 17, 2017 Order,
and incorporates that history here by reference.

MEMORANDUM DECISION AND ORDER - 1

At that time, it reserved ruling on the parties’ requests for equitable relief. Id. at 3. The
Court found that IGPI was entitled to a new trial on TimberStone Management’s
trademark dilution claim, on the grounds that there was a clear lack of evidence to
establish the necessary “fame” element of the claim. Id. at 19. The Court further found
that the jury did not apportion its lump-sum damages award between the claims on which
it found that TimberStone Management prevailed. Id. at 35. Because the Court set aside
the jury’s verdict on trademark dilution, it held that the issue of damages on both claims
must be re-submitted to the jury. Id. at 37. The parties subsequently waived their rights to
a new trial on these issues. See Plaintiff’s Notice, Dkt. 139.
The August 17, 2017 Order also disposed of several other post-trial issues. Most
relevant to this decision, the Court denied IGPI’s motion for a new trial on TimberStone
Management’s unfair competition and false designation claims after finding that there
was no inconsistency in the jury’s verdict. Aug. 17, 2017 Order at 22, Dkt. 137. The jury
found for TimberStone Management on these claims, and IGPI argued that this finding
was inconsistent with the jury’s finding against TimberStone Management on its federal
and common law infringement claims. Id. at 20. Drawing all reasonable inferences in
favor of TimberStone Management, the Court upheld the verdict. Id. at 22. The Court
found that to the extent the jury verdict appeared inconsistent, it could be reconciled if the
jury had found that IGPI established its affirmative defense of continuous prior use. Id.
Finally, the Court noted in its Order that it was inclined to issue only a limited
permanent injunction, requiring IGPI to take reasonable steps to avoid any further

MEMORANDUM DECISION AND ORDER - 2

confusion. Id. at 38. Before doing so, however, the Court directed the parties to meet and
confer for the purposes of drafting mutually-agreeable terms for a permanent injunction.
Id. at 38-29. The Court also allowed the parties to submit proposed findings of fact and
conclusions of law on these issues, and directed them to file a proposed injunction. Id. at
38.
On September 8, 2017, IGPI filed its proposed findings of fact, conclusions of
law, and permanent injunction regarding any continued use of the TimberStone mark by
IGPI. See Proposed Findings of Fact by IGPI, Dkt. 141. TimberStone Management filed
its own proposed findings of fact and conclusions of law that same day, and also filed its
Motion for Reconsideration. See Motion for Reconsideration, Dkt. 142; Proposed
Findings of Fact by TimberStone Management, Dkt. 143. On September 15, 2017,
TimberStone Management filed its proposed injunction. See Notice, Dkt. 144.
The Court will first address TimberStone Management’s Motion for
Reconsideration, and then will issue its findings of fact and conclusions of law on the
issues of declaratory and injunctive relief.
ANALYSIS
1.

Motion for Reconsideration
TimberStone Management asks the Court to reconsider a single line in its August

17, 2017 Order. Specifically, TimberStone Management takes issue with the Court’s
statement that it is inclined to issue a limited permanent injunction “given the jury’s
finding that IGPI established its good faith remote use defense.” Aug. 17, 2017 Order at

MEMORANDUM DECISION AND ORDER - 3

38, Dkt. 137. TimberStone Management argues both that the jury did not expressly find
that IGPI established its continuous use defense, and that such a finding would be
inconsistent with the jury’s determination that IGPI acted willfully. Def.’s Br. at 4, 7,
Dkt. 142-1.
The Federal Rules of Civil Procedure do not expressly authorize a motion for
reconsideration, but a “district court has the inherent power to reconsider and modify its
interlocutory orders prior to entry of judgment . . . .” Smith v. Massachusetts, 543 U.S.
462, 475 (2005) (internal quotations omitted); cf. Fed. R. Civ. Pro. 54(b). Nevertheless,
reconsideration is “an extraordinary remedy, to be used sparingly. . . .” Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Absent highly unusual circumstances, a
motion for reconsideration will not be granted “unless the district court is presented with
newly discovered evidence, committed clear error, or if there is an intervening change in
controlling law.” Kona Enters., Inc v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
2000).
In a strange turn of events, TimberStone Management has filed this motion to
reconsider on the grounds that the Court clearly erred when it upheld a verdict in
TimberStone Management’s favor. Def.’s Br. at 4, Dkt. 142-1. In the context of
reconciling the jury’s special verdict responses, this Court held that a reasonable jury
could find that IGPI had established its continuous use defense. Aug. 17, 2017 Order at
22, Dkt. 137. This finding is sufficient to support the Court’s ruling that the verdicts were
consistent. See Atl. & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364

MEMORANDUM DECISION AND ORDER - 4

(1962) (finding that so long as there is “a view of the case that makes the jury’s answers
to special interrogatories consistent” the Court must find them consistent.). TimberStone
Management disagrees with the Court’s finding, though not with its result. 2
TimberStone Management argues that a finding that IGPI established a continuous
use defense would be inconsistent with the jury’s finding that IGPI acted maliciously,
fraudulently, or willfully. In support of its case, it cites a Ninth Circuit opinion decided
almost a year after the jury entered its verdict in this case. See Special Verdict Form, Dkt.
117 (entered September 30, 2016) and Stone Creek, Inc. v. Omnia Italian Design, Inc.,
862 F.3d 1131, 1133 (9th Cir. 2017) (decided July 11, 2017). TimberStone Management
cites Stone Creek for the proposition that “there can be no ‘good faith’ remote use
defense where a junior user had prior knowledge of a senior user’s rights.” Def.’s Br. at 6,
Dkt. 142-1. They argue that the jury’s finding that IGPI acted maliciously, fraudulently,

2

To preserve its jury verdict and avoid snatching defeat from the jaws of victory, TimberStone
Management suggests that the jury found it failed to establish a prima facie case for federal trademark
infringement and common law trademark infringement, but did establish a prima facie case for unfair
competition. Def.’s Br. at 5, Dkt. 142-1. TimberStone Management provides no rational explanation for
how this reading of the jury’s verdict resolves, rather than creates, inconsistency. On the federal
trademark infringement claim, for example, the jury was instructed to find the validity element to be
established, and to presume the ownership element, unless IGPI proved its prior use defense. Jury
Instructions, at 14-15, Dkt. 116. Thus, absent a finding that IGPI established its prior use defense, the
only element remaining for Timberstone Management to establish its prima facie case for federal
trademark infringement was likelihood of confusion. Id. at 3. In finding for TimberStone Management on
unfair competition, however, the jury must have found some likelihood of confusion. Id. at 29. This
substantially undermines TimberStone Management’s argument that the jury’s verdict could be
reconciled simply because the infringement claims and the unfair competition claims have different
elements. Although TimberStone Management points to the lack of a specific instruction on likelihood of
confusion for the unfair competition claim, it fails to explain how a finding of likelihood of confusion on
that claim would be insufficient to establish the infringement claims.

MEMORANDUM DECISION AND ORDER - 5

or willfully requires a finding that IGPI acted with knowledge of TimberStone
Management’s rights, and that IGPI’s knowledge would therefore negate any showing of
good faith under Stone Creek. See, e.g., Def.’s Reply at 6-7, Dkt.146.
The Court disagrees. At the time the jury answered the special verdict questions,
Stone Creek had not yet been decided, and there was no rule in this Circuit stating that
knowledge of a senior user’s rights negates a showing of good faith. The Court’s finds
that its determination of the consistency of the jury’s verdict is governed by the law in
place at the time the verdict was issued. A subsequent change in law does not
retroactively render a jury’s verdict inconsistent, though it may provide grounds for a
motion to alter or amend the judgment, based on principles of fairness and justice. See
Fed. R. Civ. Pro. 59(e); Kona Enters., Inc, 229 F.3d at 890. As TimberStone
Management notes, there has been no such motion in this case. Because Stone Creek was
handed down during the pendency of the parties’ equitable claims, however, the Court
will apply Stone Creek in determining the scope of the permanent injunction. See Yong v.
I.N.S., 208 F.3d 1116, 1119 n.2 (9th Cir. 2000) (“once a federal circuit court hands down
a decision, the district courts within that district are bound to follow it.”).
Further, a finding that IGPI established a prior use defense is not inconsistent with
a finding that IGPI acted fraudulently, maliciously, or willfully in relation to
TimberStone Management’s claim for unfair competition and false designation of origin,
under Stone Creek or otherwise. Unlike the trademark infringement claims, there is no
temporal or ownership element with regards to an unfair competition claim. See Jury

MEMORANDUM DECISION AND ORDER - 6

Instructions at 29, Dkt. 116 (“a person may recover for false designation of origin even
though the person is not the owner of the trademark for the word, term, name, symbol, or
combination used by another person.”). As such, the jury could have found that IGPI
established a good faith prior use defense, but that it subsequently became aware of the
likelihood of confusion with TimberStone Management, and that its failure to mitigate
that confusion was sufficient to give rise to a claim for false designation of origin. In
other words, the jury could have found that the claims for false designation, and for
acting willfully, maliciously, or fraudulently, arose after IGPI had established its common
law rights to use the mark in Southwestern Idaho. Accordingly, the Court will deny
TimberStone Management’s motion for reconsideration.
2.

Equitable Relief

Both parties have requested equitable relief from this Court. IGPI asks the court to
declare that it has a common law right “to use the TimberStone mark in Southwest Idaho
without infringing upon Defendant’s federal registration,” and that TimberStone
Management does not have the exclusive right to use of the TimberStone mark. IGPI
further asks this Court to enjoin Timberstone Management from interfering with IGPI’s
use of the TimberStone mark. TimberStone Management seeks a permanent injunction
prohibiting IGPI from continuing to use the TimberStone mark, on the grounds that it has
national exclusive rights to the mark by virtue of its federal trademark. Based on the
following findings of fact and conclusions of law, the Court finds that IGPI has
established its common law right to use the TimberStone mark in remote Southwestern

MEMORANDUM DECISION AND ORDER - 7

Idaho, and that the scope of protection afforded TimberStone Management by virtue of
its federal trademark does not extend to Southwestern Idaho. The Court further finds that
TimberStone Management is entitled to limited injunctive relief to prevent any further
violation of 15 U.S.C. § 1125.
(1)

Findings of Fact

The TimberStone Golf Course in Iron Mountain, Michigan has been in operation
since 1996. On September 22, 2010, Plaintiff Idaho Golf Partners, Inc. was formed for
the purpose of opening a golf course in Canyon County, Idaho. IGPI chose the name
TimberStone for its golf course, and there is no evidence that IGPI was aware of
TimberStone Management’s TimberStone golf course at the time the name was chosen.
On February 15, 2011, IGPI assumed the business name “TimberStone Golf
Course” by registering with the Idaho Secretary of State, and began using the
TimberStone mark. Sometime that spring, Kelly Christensen, the director of marketing
for IGPI, found the URL www.timberstonegolfcourse.com while searching for a URL for
the Idaho golf course. 3 In June 2011, IGPI established its first Facebook page for
TimberStone Golf Course, and on July 1, 2011, IGPI opened TimberStone Golf Course in

3

IGPI’s discovery that there was another golf course using the name “TimberStone” in another
region of the country did not, by itself, put IGPI on notice that another company had obtained rights
which barred the use of the TimberStone name for a local golf course operated in Southwestern Idaho.
The testimony at trial made clear there are number of golf course names which are used simultaneously
by many, even dozens, of unrelated golf courses around the United States.

MEMORANDUM DECISION AND ORDER - 8

Caldwell, Idaho. IGPI has maintained continuous use of the name TimberStone Golf
Course since February 2011.
TimberStone Management filed its registration for the trademark TIMBERSTONE
in connection with golf courses with the United States Patent and Trademark Office on
January 12, 2012. On April 4, 2012, TimberStone Management sent a cease and desist
letter to IGPI demanding that IGPI stop using the name TimberStone in connection with
its golf course. On June 11, 2013, TimberStone management was granted the trademark
TIMBERSTONE in connection with golf courses, and on August 2, 2013 TimberStone
Management sent a copy of its federal Certificate of Registration for TIMBERSTONE to
IGPI. At some point after TimberStone Management obtained the Certificate of
Registration, it contacted Facebook and alleged that IGPI had infringed upon its
trademark. As a result, IGPI’s TimberStone Facebook page was disabled.
Both parties sell rounds of golf, golf-related services, and merchandise, and both
parties rely heavily on social media and other online marketing to promote their courses.
TimberStone Management’s target market and most of its customers are in Michigan and
the surrounding states. There is no evidence of TimberStone Management advertising,
promoting, or marketing its golf course in Idaho, or seeking customers from Idaho.
Indeed, TimberStone Management admitted that it did not advertise in the State of Idaho.
Similarly, there is no evidence that IGPI advertises in the State of Michigan or
surrounding states, or seeks customers in that region.

MEMORANDUM DECISION AND ORDER - 9

Despite their regionally specific marketing schemes, both parties testified to
instances of receiving calls from people trying to reach the other course. TimberStone
Management also testified to golfers mistakenly booking tee times with IGPI’s course,
and posting about the Idaho course on the Michigan course Facebook page. There is no
evidence, however, that customers of either course purchased rounds of golf at the wrong
course.
On July 14, 2014, IGPI filed the instant action seeking declaratory relief under the
Lanham Act as to its rights to use the TimberStone mark in Southwestern Idaho.
TimberStone Management answered the complaint on March 31, 2015 and
counterclaimed for federal and common law trademark infringement, unfair competition
and false designation of origin, trademark dilution, and cybersquatting. On September 30,
2016, the jury returned its special verdict form. The jury found in favor of TimberStone
Management on its claim for unfair competition and false designation of origin, and its
claim for trademark dilution. The jury further found that IGPI had acted with fraud,
malice, and willfulness in using the TimberStone mark. Finally, the jury found that
TimberStone had not established its claims for federal or common law trademark
infringement, or for cybersquatting. On August 17, 2017, the Court set aside the jury’s
verdict in favor of TimberStone Management on its trademark dilution claim, finding that
it went against the clear weight of the evidence.

MEMORANDUM DECISION AND ORDER - 10

(2)

Conclusions of Law
A. Legal Standards

The Court has jurisdiction over this action pursuant to the Declaratory Judgments
Act, 28 U.S.C. §§ 2201-2201 and the Lanham Act, 15 U.S.C. § 1051 et seq. The Court
has the power to “declare the rights and other legal relations of any interested party
seeking such declaration” in a case of actual controversy. 28 U.S.C. § 2201. The Court
further “has the power to grant injunctions, according to the principles of equity, and
upon such terms as the court may deem reasonable” to remedy damages caused by unfair
competition and false designation of origin in connection with goods or services used in
commerce. 15 U.S.C. §§ 1116(a), 1125(a).
A party seeking a permanent injunction has the burden of establishing “(1) that it
has suffered an irreparable injury; (2) that the remedies available at law, such as
monetary damages, are inadequate to compensate the injury; (3) that, considering the
balance of hardships between the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be disserved by a permanent
injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
B. Common Law Trademark Rights
Federal registration of a trademark “presumptively entitles the senior user [of the
trademark] to nationwide protection” Stone Creek, 875 F.3d 430, 436 (9th Cir. 2017).
Common-law trademark rights, on the other hand, “extend only to the territory where a
mark is known and recognized.” Id. As such, “a later user may sometimes acquire rights

MEMORANDUM DECISION AND ORDER - 11

in pockets geographically remote from the first user’s territory.” Id. Such rights are not
“wiped out merely because [the senior user] later filed a federal registration.” Id. Instead,
“the geographic scope of a senior user’s rights in a registered trademark . . . stretches
throughout the United States with holes cut out where others acquired common-law rights
prior to the registration.” Id. To take advantage of common-law rights, “a junior user
must establish good faith use in a geographically remote area.” Id. “There is no good
faith if the junior user had knowledge of the senior user’s prior use.”
C. Analysis
The Court finds that the holding in Stone Creek does not preclude a finding that
IGPI established a common law right to use the TimberStone mark in Southwestern
Idaho. In Stone Creek, the plaintiff obtained an Arizona state trademark in 1992, and
federally registered its mark in 2012. Stone Creek, 875 F.3d at 430. The plaintiff operated
showrooms in Arizona, from which it sold its furniture. Id. But, the plaintiff also
marketed and sold furniture in other parts of the country via its website and through
advertising in national magazines. Id. at 430, 434. In 2003, the plaintiff contracted with
the defendant in the case to produce furniture sold under the mark at issue. Id. at 430. In
2008, the defendant began selling furniture with the same mark to another company,
which sold the furniture out of stores in the Midwest. Id. In 2013, the plaintiff began to
hear from people that had bought goods under the mark from the stores in the Midwest.
Id. at 430-31. The plaintiff then filed suit alleging federal and common law trademark
infringement. Id. at 431. The court held that the defendant’s knowledge of plaintiff’s use

MEMORANDUM DECISION AND ORDER - 12

of the mark precluded them from establishing good faith use in a geographically remote
area. Id. at 437, 438 (“there is no good faith if the junior user had knowledge of the senior
user’s prior use.”).
The Court finds that there are two critical issues underpinning the Ninth Circuit’s
decision in Stone Creek. First, there was sufficient evidence to establish that the plaintiff
had common law right to use the mark in the geographic area at issue. As the Ninth
Circuit notes “common-law trademark rights extend only to the territory where a mark is
known and recognized, so a later user may sometimes acquire rights in pockets
geographically remote from the first user’s territory.” Id. at 436. In Stone Creek, the
Circuit Court found that the plaintiff marketed and advertised its goods in the Midwest
before and during the time that the defendant began to sell the same or similar goods to
other stores in that area under the same mark. Id. at 434 (finding that the plaintiff began
advertising its goods nationwide as early as 2000, that its marketing and sales reached the
Midwest, and that the plaintiff and the third-party stores were simultaneously selling
goods under the mark in the Midwest). Thus, the court held that the plaintiff’s “right to
enforce its mark in the alleged infringer’s area [had] ripened into a remedy.” Id.
Second, there was overwhelming evidence that the defendant in Stone Creek had
actual, “affirmative” knowledge of the plaintiff’s senior use of the mark, and that the
defendant had not “serendipitously chosen the same mark and built up its own brand.” Id.
at 439. The court recognized that the purpose of the good faith prior use doctrine is to
prevent a senior user from moving into a new market and benefitting from the trade and

MEMORANDUM DECISION AND ORDER - 13

good will built up by a junior user who independently employs the same mark. Id. at 437
(citing Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 420 (1919). In that case,
however, the defendant had produced goods under the mark at issue for the plaintiff for
five years, and then subsequently contracted with and produced goods for a second seller
under the same mark, using the same logo and marketing materials. Id. at 430. Thus, the
Circuit Court found that the defendant “affirmatively” knew that its use of the mark came
“directly at the expense of the senior user, potentially blocking the senior user from
entering into the new market,” in violation of the plaintiff’s rights. Id. at 439. In other
situations, however, the Ninth Circuit has held that simply establishing knowledge of
another person’s use of a mark is not sufficient to establish knowledge of that person’s
rights to the mark. See Quicksilver, Inc. v. Kymsta Corp., 466 F.3d 749, 755 (9th Cir.
2006) (finding that a person lacks knowledge of another user’s rights to a mark where the
person does not know or believe the other user’s rights to be superior).
Taking into consideration these factors, the Court finds that IGPI would be
precluded from establishing its common law rights to use the TimberStone mark in
Southwestern Idaho under Stone Creek if (1) TimberStone Management had established
its common law right to use the TimberStone mark in Southwestern Idaho at the time
IGPI began using the mark; or (2) IGPI affirmatively knew of TimberStone
Management’s rights to the mark, such that IGPI knew its use of the mark “came directly
at the expense” of TimberStone Management.

MEMORANDUM DECISION AND ORDER - 14

The Court finds that there is no evidence that TimberStone Management
established a common law right to use the mark in the remote geographic area of
Southwestern Idaho. There is no evidence that TimberStone Management has ever used
the TimberStone mark in Southwestern Idaho, that it was known and recognized by
potential customers in Southwestern Idaho, or that it has ever had any actual sales or nonsales activity in Southwestern Idaho. The only support Timberstone Management offers
for its pre-registration rights are that it had registered a domain name and established a
webpage that could be found by someone in Southwestern Idaho through a google search.
The Court finds that this is not sufficient to establish common law rights to use the mark
in a particular region. 4
The Court further finds that there is insufficient evidence to establish that IGPI
affirmatively knew of TimberStone Management’s rights to the mark, such that IGPI
knew its use of the mark “came directly at the expense” of TimberStone Management. At
most, the evidence shows that after independently deciding to operate a golf course using
the name TimberStone, and registering that business name with the state of Idaho, IGPI
became aware that another golf course hundreds of miles distant was using the same
name.

4

This holding is consistent with the Ninth Circuit’s decision in Stone Creek. There, the plaintiff
only operated brick and mortar stores in Arizona. Stone Creek, 875 F.3d at 434. The district court held
that the plaintiff had established common law rights in the Midwest, however, not simply because the
plaintiff had established a website that predated the defendant’s use of the mark, but also because the
plaintiff had customers in the Midwest who actually purchased its goods, either through the website or on
account of national advertising that reached the area. Id.

MEMORANDUM DECISION AND ORDER - 15

The Court finds it more likely than not that IGPI serendipitously chose to use the
name TimberStone to build a brand for its golf course in Southwestern Idaho. The Court
finds that IGPI did not affirmatively know TimberStone Management had rights to the
mark, or that IGPI’s use of the mark came at the direct expense of TimberStone
Management. 5 The Court further finds that TimberStone Management did not have a
common law right to use the TimberStone mark in Southwestern Idaho, and that IGPI
began to use the mark in good faith, without knowledge of any user with superior rights
in that geographic region. As such, the Court finds that IGPI has established its exclusive
right to use the TimberStone mark in Southwestern Idaho, because it was the first to use
the term TimberStone in connection with a golf course in that region.
The Court finds, however, that TimberStone Management is entitled to a limited
permanent injunction governing IGPI’s use of the mark as a remedy for its claim of
unfair competition and false designation of origin. The jury found that IGPI’s use of the
name TimberStone was likely to cause confusion, and that TimberStone Management has
been or is likely to be damaged by that confusion. The judgment for damages already
awarded to TimberStone Management does not provide a complete remedy for any
ongoing confusion. To the extent ongoing confusion creates a hardship for TimberStone

5

As discussed above, simply knowing that the TimberStone name was used by a golf course in
northern Michigan is not the same as knowing that the user held rights which would preclude the use of
the name TimberStone by other golf courses, whether in Southwestern Idaho or other parts of the United
States. See infra, note 3.

MEMORANDUM DECISION AND ORDER - 16

Management, it outweighs any hardship for IGPI in taking reasonable steps to mitigate
such confusion. Finally, the public interest is served by mitigating any ongoing
confusion. Thus, a limited permanent injunction is justified, to the extent it remedies the
potential harm from such ongoing confusion.
The court will issue a separate decision on TimberStone Management’s motion for
attorney’s fees.
Accordingly,
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1.

Defendant’s Motion for Reconsideration (Dkt.142) is DENIED.

2.

Plaintiff’s Request for Declaratory Judgment is GRANTED.

3.

Defendant’s Request for Permanent Injunction is GRANTED IN PART

and DENIED IN PART.
4.

The Court will file a separate Judgment laying out the terms of the

permanent injunction.

DATED: March 27, 2018

_________________________
B. Lynn Winmill
Chief U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 17