Braddock v. Jolie et al

Filing 13

WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 12/9/2011: Plaintiffs oral motion to withdraw his ex parte verified motion for a temporary restraining order and/or preliminary injunction is granted. The ex parte TRO motion 5 is withdrawn. In addition, if Plaintiff wishes to proceed with his lawsuit in this jurisdiction, the Court directs Plaintiff (and invites any Defendant who is served with the complaint) to submit a brief by 12/13/2011 addressing the issues relating to personal jurisdiction, venue, and forum set forth below. Mailed notice(tbk, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Robert M. Dow, Jr.

CASE NUMBER

11 C 8597

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

12/9/2011

Braddock vs. Jolie, et al.

DOCKET ENTRY TEXT

Plaintiff’s oral motion to withdraw his ex parte verified motion for a temporary restraining order and/or
preliminary injunction is granted. The ex parte TRO motion [5] is withdrawn. In addition, if Plaintiff wishes
to proceed with his lawsuit in this jurisdiction, the Court directs Plaintiff (and invites any Defendant who is
served with the complaint) to submit a brief by 12/13/2011 addressing the issues relating to personal jurisdiction,
venue, and forum set forth below.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
This matter came before the Court on Plaintiff’s ex parte verified motion for a temporary restraining order and/or
preliminary injunction [5]. The motion was filed on 12/6/2011 and noticed for presentment on 12/9/2011 at
10:00 a.m. As both the case law and the text of Rule 65 indicate, ex parte TROs are disfavored. See, e.g., Reno
Air Racing Ass'n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006) (“circumstances justifying the issuance of an
ex parte order are extremely limited”). As the Court pointed out on the record in open court, Plaintiff has neither
shown that immediate and irreparable harm would result before the adverse parties could be heard in opposition
nor certified in writing efforts to give notice to the adverse parties. See Fed. R. Civ. P. 65(b); see also American
Can Co. v. Mansukhani, 742 F.2d 314, 321-22 (7th Cir. 1984) (abuse of discretion to grant TRO if Plaintiff has
not made reasonable efforts to give notice to adversary). In view of the circumstances and the case law, Plaintiff
prudently requested leave to withdraw the ex parte TRO motion – a request that the Court readily granted. If
Plaintiff renews his request for a TRO at a future date, he must comply with Rule 65(b) and make reasonable
efforts to notify the adverse parties of the date and time of the hearing.
As the Court further noted on the record, the allegations of the complaint raise questions concerning the timing
of this lawsuit. In particular, Plaintiff alleges that he had knowledge of the alleged infringing activities as early
as 2010 (see, e.g., Complaint ¶ 30), yet Plaintiff delayed at least a year in bringing this lawsuit. Over that time,
Defendants undertook considerable efforts to complete the filming of the allegedly infringing motion picture,
which is now scheduled to be released in the United States on December 23, 2011. See Declaration of Robert
Berney (filed along with objection papers by Defendant FilmDistrict). The timing of the lawsuit in relation to
the other allegations and contentions of the parties plainly would be considerations on the equities, as well as the
balance of the harms and the public interest. Moreover, Mr. Berney’s declaration also appears to be germane
to the issue of the amount of security that Plaintiff would be required to post in the event that a TRO or other
preliminary injunctive relief were entered. The absence of any discussion of security or bond in Plaintiff’s ex
parte motion is a notable omission that should be rectified in the event that Plaintiff renews his motion. See, e.g.,
11C8597 Braddock vs. Jolie, et al.

Page 1 of 2

STATEMENT
Reinders Bros., Inc. v. Rain Bird Eastern Sales Corp., 627 F.2d 44, 54 (7th Cir. 1980) (“absent extraordinary
circumstances, the court errs in not granting [a demand for an injunction bond]”); Mead Johnson & Co. v. Abbott
Laboratories, 201 F.3d 883, 888 (7th Cir. 2000) (“When setting the amount of security, district courts should err
on the high side,” in part because bond acts to limit damages recoverable).
Finally, as discussed on the record in open court, if Plaintiff wishes to proceed with his lawsuit in this
jurisdiction, the Court (on its own motion) directs Plaintiff (and invites any Defendant who is served with the
complaint) to submit a brief by 12/13/2011 addressing the issues of whether (1) the Court has personal
jurisdiction over all of the parties, (2) whether venue is proper in this district, and (3) if both (1) and (2) are
answered in the affirmative, whether this case nevertheless should be transferred to a federal district court in
California under 28 U.S.C. § 1404(a). See Robinson v. Town of Madison, 752 F. Supp. 842, 846 (N.D. Ill. 1990)
(noting that “a court’s authority to transfer cases under § 1404(a) does not depend upon the motion, stipulation,
or consent of the parties to the litigation”). This directive is prompted by the Court’s review of the allegations
of the complaint, which indicate that most of the parties in this case reside in one of two general locations –
southeastern Europe (Croatia and Bosnia and Herzegovina) and California – and that most, if not all, of the
contacts between the parties presumably took place in those locations. By contrast, on the basis of the complaint,
the connection to the Northern District of Illinois appears to be minimal, at best.

11C8597 Braddock vs. Jolie, et al.

Page 2 of 2