River Services Company, L.L.C. et al v. Peer et al

Filing 16

PRELIMINARY INJUNCTION granting Plaintiffs' 2 Motion, as set forth in document. Signed by Judge Jane Triche Milazzo. (Copy emailed to [e-mail])(ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RIVER SERVICES CO. LLC ET AL.

CIVIL ACTION

VERSUS

NO: 17-2691

STEPHEN PEER ET AL.

SECTION: “H”(1)

ORDER AND REASONS
Before the Court is Plaintiff’s Motion for Preliminary Injunction (Doc. 2).
For the following reasons, the Motion is GRANTED.
BACKGROUND
On March 30, 2017, Plaintiffs River Services Co. LLC, Budwine &
Associates, LLC, Neptune Diving, LLC, and Natures Escape, LLC moved for a
temporary restraining order against Defendants Stephen Peer and Peer
Partners Interactive, LLC. Plaintiffs allege that Defendants, their former
website support company and its owner, have refused to turn over control of
certain domain names, websites, social media accounts, and email services
associated with Plaintiffs (collectively, “websites”) after Plaintiffs decided to
terminate Defendants’ services. Defendants purportedly claimed that they are
1

owed an additional amount for their services and refused to turn over the
information required to transfer control of the websites until such was paid.
Defendants also threatened to terminate Plaintiffs’ website services on March
31, 2017 at midnight.
On March 31, this Court entered a temporary restraining order
prohibiting Defendants from changing, terminating, or otherwise interfering
with the service of Plaintiffs’ websites. A preliminary injunction hearing was
held on April 19 during which Plaintiffs sought an order requiring Defendants
to transfer control over its websites and take all necessary actions required to
effectuate such a transfer without interruption to Plaintiffs’ services.
At the preliminary injunction hearing, however, it was revealed to the
Court that Defendants have not yet been served.

Plaintiffs contend that

service was attempted on Defendants’ known addresses on three different
occasions to no avail. They also contend that this Court’s orders were emailed
and texted to Defendants both by Plaintiffs and by the Clerk of Court.
Plaintiffs argue that Defendants have received adequate notice of their motion
for preliminary injunction and the hearing date and have chosen not to respond
or participate. Plaintiffs contend that despite the lack of service they are
entitled to a preliminary injunction either because (1) adequate notice was
received, or (2) the Anticybersquatting Consumer Protection Act authorizes an
in rem civil action against a domain name when a defendant cannot be found.
Because this Court ultimately holds that Defendants received actual notice, it
need not address Plaintiffs’ second argument.

2

LEGAL STANDARD
An applicant for preliminary injunctive relief must show: (1) a
substantial likelihood that he will prevail on the merits; (2) a substantial
threat that he will suffer irreparable harm if the injunction is not granted; (3)
his threatened injury outweighs the threatened harm to the party whom he
seeks to enjoin; and (4) granting the preliminary injunction will not disserve
the public interest.8 A preliminary injunction is an extraordinary remedy. 9
Accordingly, a preliminary injunction should only be granted when the party
seeking it has clearly carried the burden of persuasion on all four
requirements.10 In the end, a preliminary injunction is treated as an exception
rather than the rule.11
LAW AND ANALYSIS
A. Notice Required for Issuance of Preliminary Injunction
Federal Rule of Civil Procedure 65(a) requires that “[t]he court may issue
a preliminary injunction only on notice to the adverse party.” Plaintiffs argue
that “notice” does not require service of process. This Court agrees. “Rule 65(a)
does not specify the particular type of notice required in order properly to bring
defendants in an injunction proceeding before the trial court.”12 The Fifth
Circuit has held that “[t]he Rule’s notice requirement necessarily requires that
the party opposing the preliminary injunction has the opportunity to be heard
8
9

Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 195–96 (5th Cir. 2003).
Miss. Power & Light Co. v. United Gas Pipe Line, Co., 760 F.2d 618, 621 (5th Cir.

1985).
Id.
St. of Tex. v. Seatrain Int’l, S.A., 518 F.2d 175, 179 (5th Cir. 1975).
12 Plaquemines Par. Sch. Bd. v. United States, 415 F.2d 817, 824 (5th Cir. 1969).
3
10
11

and to present evidence.”13 “The sufficiency of the written and actual notice is
a matter for the trial court’s discretion.”14
Plaintiffs present evidence showing that Defendants received actual
notice of the Complaint, Temporary Restraining Order, Motion for Preliminary
Injunction, and hearing date. Plaintiffs show that as recently as March 30,
2017, Defendants used the email address [e-mail] to
communicate with Plaintiffs. Plaintiffs sent copies of its pleadings and the
orders of the Court to this address from March 30 to April 5. Counsel for
Plaintiffs received notification that his emails were received. On April 4, 2017,
the Clerk of Court also used this email address to provide Defendants with
notice of this Court’s order setting a preliminary injunction hearing.
Plaintiffs also show that they have attempted to call and text Defendants
to no avail. Plaintiffs show that while Defendant failed to respond to a picture
of the temporary restraining order that was texted to him, he responded to
another text message sent from a different number thereafter.
In light of Plaintiffs’ showing, this Court finds that Defendants received
actual notice of Plaintiffs’ Motion for Preliminary Injunction and the hearing
date.15 Until the filing of this lawsuit, Defendants were communicating with
Harris Cty., Tex. v. CarMax Auto Superstores Inc., 177 F.3d 306, 325 (5th Cir.
1999) (citing Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers,
Local No. 70, 415 U.S. 423, 434 n. 7 (1974); Phillips v. Charles Schreiner Bank, 894 F.2d
127, 130 (5th Cir. 1990); Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996) (“We
have interpreted the notice requirement of Rule 65(a)(1) to mean that where factual
disputes are presented, the parties must be given a fair opportunity and a meaningful
hearing to present their differing versions of those facts before a preliminary injunction
may be granted.”).
14 Plaquemines Par. Sch. Bd. v. United States, 415 F.2d 817, 824 (5th Cir. 1969)
15 See Citizens Sav. Bank v. GLI Tech. Servs., Inc., No. 96-2307, 1996 WL 737008, at
*3 (E.D. La. Dec. 23, 1996) (holding that defendant received notice in sufficient time to
4
13

Plaintiffs through the email address and phone number later used to give
notice. It seems clear to this Court that Defendants chose not to participate in
the preliminary injunction hearing and thus squandered the opportunity to be
heard by this Court. Accordingly, this Court finds that actual notice was
received in satisfaction of Rule 65(a).
B. Preliminary Injunction
Having found that notice was proper, this Court now considers the
merits of Plaintiffs’ request for preliminary injunction. Each element is
considered in turn.
(1) Substantial likelihood of prevailing on the merits
Plaintiffs have shown that they enlisted Defendants to provide
administrative services over their domain names and other websites.
Plaintiffs and Defendants had an oral agreement that was subject to
termination at any time. Plaintiffs have shown that the domain names and
websites at issue are owned by Plaintiffs and are vital to their operation.
Defendants, however, listed themselves as the “Admin” and “Tech” contacts on
these sites, giving them complete control over the domains. Plaintiffs sought
to terminate the relationship in February 2017 and requested the transfer of
control over the sites at that time. Plaintiffs have shown that Defendants
refuse to transfer control over these websites. Accordingly, Plaintiffs have
established a substantial likelihood of success on at least their breach of
contract or breach of fiduciary duty claims against Defendants.

prepare for preliminary injunction hearing despite evading service until the day before the
scheduled hearing).
5

(2) Substantial threat that they will suffer irreparable harm if the
injunction is not granted
Plaintiffs have shown that they will suffer irreparable harm if an
injunction is not issued. If Defendants are allowed to continue to hold their
websites hostage and refuse to transfer control, Plaintiffs will suffer a
disruption of business and customer relations.

“A loss of a business[’s]

customers and damage to its goodwill are widely recognized as injuries
incapable of ascertainment in monetary terms and may thus be irreparable.”16
Accordingly, this factor is satisfied.
(3) Threatened injury outweighs the threatened harm to the party whom
they seeks to enjoin
This Court cannot identify any harm to Defendants that would result
from the issuance of this injunction.

While Defendants purportedly seek

additional payment from Plaintiffs for their services, such can still be sought
after control of the websites is transferred.
(4) The preliminary injunction will not disserve the public interest
An injunction requiring the transfer of Plaintiffs’ websites will in no way
disserve the public interest. Because of the type of services they provide,
interruption to the business of Plaintiffs River Services and Neptune could
disrupt maritime commerce. Accordingly, issuance of this injunction is in the
public’s interest.
Having found that Plaintiffs have shown that they are entitled to a
preliminary injunction, the Court issues the following Order:

16

Union Nat. Life Ins. Co. v. Tillman, 143 F. Supp. 2d 638, 645 (N.D. Miss. 2000).
6

IT IS ORDERED that Plaintiffs’ Motion for Preliminary Injunction is
GRANTED and a preliminary injunction shall issue immediately.
IT IS FURTHER ORDERED that Plaintiffs shall post a security in
the amount of $5,000 no later than April 26, 2017.
IT IS FURTHER ORDERED that Defendants Stephen Peer,
individually, and Peer Partners Interactives, L.L.C., and those persons in
active concert or participation with Defendants along or in association with
any other person or entity are enjoined as follows:
(1) Defendants are enjoined and restrained from causing any change to
Plaintiffs’ domain registrations, any associated website or email services, or
online accounts managed by Defendants, including for Facebook.com, except
by written request from Plaintiffs (or Plaintiffs’ counsel or designated service
provider(s));
(2) Defendants (or the registrar of the domains) shall immediately
transfer to Plaintiffs (or Plaintiffs designated service provider(s)) control over:
the

domain

names

riverservicescompany.com,

budwineassociates.com,

neptunedivingllc.com, and naturesescapespa.com; and all associated website
and email services; and
(3) Defendants shall take all actions necessary to facilitate and effectuate
such transfer without interruption to Plaintiffs’ website and email services,
including without limitation: (i) unlocking each domain name for transfer; (ii)
providing all applicable authorization codes, including EPP keys; (iii) providing
a copy

of all MySQL WordPress database backups,

including for

riverservicescompany.com and neptunedivingllc.com; (iv) providing all
applicable

administrator

WordPress
7

credentials,

including

for

riverservicescompany.com and neptunedivingllc.com; (v) providing a website
directory backup for each website; and (vi) providing Zone files for each
website; and
(4) Defendants shall provide Plaintiffs with all usernames and
passwords to all online accounts that Defendants managed on Plaintiffs’
behalf, including Facebook.com, and shall not retain any administrative
privileges or other access to such accounts.
IT IS FURTHER ORDERED that the Clerk of Court shall email a copy
of this Order to Defendants at [e-mail].

New Orleans, Louisiana this 20th day of April, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

8