Happy's Pizza Franchise, LLC v. Chicago Partners #78, LLC et al

Filing 12

TEMPORARY RESTRAINING ORDER and ORDER REGARDING PRELIMINARY INJUNCTION HEARING Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Happy’s Pizza Franchise, LLC, a Michigan
limited liability company,
Plaintiff,
v.

Case No. 13-11910

Chicago Partners #78, LLC, an Illinois
limited liability company, Harvey Holdings
#79, LLC, an Illinois limited liability
company, and Nneka Ezurike-Green,
an individual,

Honorable Sean F. Cox

Defendants.
_________________________________/
EX PARTE TEMPORARY RESTRAINING ORDER AND
ORDER REGARDING PRELIMINARY INJUNCTION HEARING
On April 29, 2013, Plaintiff Happy’s Pizza Franchise, LLC (“Plaintiff”) filed a Verified
Complaint and Motion for Issuance of a Temporary Restraining Order Without Notice And For
Preliminary Injunction against Defendants Chicago Partners #78, LLC, an Illinois

limited liability company (“Chicago Partners”), Harvey Holdings #79, LLC, an Illinois limited
liability company (“Harvey Holdings”), and Nneka Ezurike-Green (“Green”), an individual
(collectively “Defendants”).
It is this Court’s normal practice to attempt to hold a Status Conference with the parties
before issuing a temporary restraining order or holding a hearing on a motion for preliminary
injunction. As such, on April 30, 2013, this Court issued a Notice to Appear for a Status

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Conference in this matter on May 1, 2013, at 10:00 a.m. (Docket Entry No. 3). That Order
provided that Defendants are required to attend the conference and that “Plaintiff is instructed to
serve a copy of this Notice and the Motion for Temporary Restraining Order on Defendants prior
to the status conference.” (Id.).
On May 1, 2013, Plaintiff’s counsel appeared for the status conference but no one on
behalf of Defendants appeared. Plaintiff’s counsel indicated that he had made diligent efforts to
serve the two corporate defendants (Chicago Partners and Harvey Holdings), and had actually
served the individual Defendant (Green) with the Notice to Appear and the Motion for
Temporary Restraining Order. Thereafter, Plaintiff’s Counsel filed certificates of service
reflecting same. (See Docket Entry Nos. 7-10).
Thus, although notice is not required before this Court issues an ex parte temporary
restraining order under Fed. R. Civ. P. 65, this Court is satisfied that the Defendants had actual
notice of the pending motion and the scheduled Status Conference.
Now, this Court having reviewed Plaintiff’s Verified Complaint and Motion, the Court
concludes that the Verified Complaint shows that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse parties can be heard in opposition.
Accordingly, IT IS ORDERED that Plaintiff’s Motion for a Temporary Restraining
Order is hereby GRANTED and this Court ORDERS that Defendants and their officers, agents,
servants, employees, and attorneys, and persons who are in active concert or participation with
them, are ENJOINED AND RESTRAINED FROM:
1.

Using any of Plaintiff’s franchise marks, attached hereto as Exhibit A,
including but not limited to its trademarks, service marks, trade names,
trade dress, know-how and processes (“Franchise Mark”);

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2.

Using Plaintiff’s Franchise System, Plaintiff’s Operations Manual, or any
of the Confidential Information defined in Paragraph 11.1 of the Franchise
Agreements;

3.

Operating or doing business under any name or in any manner that gives
the general public the impression that Defendants’ franchises with
Plaintiff are still in force, or that Defendants are affiliated with Plaintiff or
authorized to use Plaintiff’s Franchise Marks;

4.

Using signs, menu board inserts, point of sale materials, trade dress, or
restaurant design characteristics uniquely identified with a Happy’s
Pizza® franchise;

5.

Using any advertising that directly or indirectly states or implies that
Defendants are associated with Plaintiff, or Plaintiff’s Franchise Marks or
franchise system;

6.

Directly or indirectly engaging in any activity in competition with Plaintiff
or its franchisees, including acquiring an ownership interest in a
competing business (a business that sells pizza, ribs, chicken, seafood,
subs or salads for carry-out, dine-in, catering or delivery) at any location
within ten miles of either of the franchise locations (8710-8718 Halsted
Ave. Chicago, IL 60620 or 15900 Halsted Ave. Chicago IL 60426) or at
any location within ten miles of an existing Happy’s Pizza® franchise
restaurant location; and

7.

Knowingly assisting, aiding or abetting any other person or entity
engaging in or performing any of the above activities.

IT IS FURTHER ORDERED that, unless this Court orders otherwise, this Temporary
Restraining Order, which was issued on May 2, 2013, at approximately 10:40 a.m. shall expire
on May 14, 2013, at 8:00 a.m.
IT IS FURTHER ORDERED that Plaintiff shall serve a copy of this Temporary
Restraining Order, together with the Summons and Complaint, on Defendants forthwith and file
certificates of service with the Court.
IT IS FURTHER ORDERED that: 1) this Court shall hold a hearing on Plaintiff’s
Motion for Preliminary Injunction on May 13, 2013, at 3:15 p.m.; and 2) Defendants shall file a
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written response to Plaintiff’s Motion for Preliminary Injunction no later than May 9, 2013, at
5:00 p.m.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: May 2, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of record on
May 2, 2013, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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EXHIBIT A
TO TEMPORARY RESTRAINING ORDER
1) “Happy’s Pizza” service mark, USPTO registration number 3,608,919, registered April 21,
2009;
2) Happy’s Pizza logo and service mark, USPTO registration number 3,773,254, registered
April 6, 2010;
3) “Happy Wings” trademark, USPTO registration number 3,476,533, registered July 29, 2008;
4) “Happy Subs” trademark, USPTO registration number 3,912,222, registered January 25,
2011;
5) “Happy Fries” trademark, USPTO registration application pending, serial number 85880372;
6) “Happy Chips” trademark, USPTO registration application pending, serial number
77856365.

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