Cyber Solutions International, LLC v. Priva Security Corporation et al
Filing
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OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CYBER SOLUTIONS INTERNATIONAL, LLC,
Plaintiff,
Case No. 1:13-CV-867
v.
HON. ROBERT HOLMES BELL
PRIVA SECURITY CORPORATION, et al.,
Defendants.
/
OPINION
This matter comes before the Court on Defendant Pro Marketing Sales, Inc.’s motion
for preliminary injunction, bond, and other relief. (ECF No. 56.) Plaintiff Cyber Solutions
International, LLC, opposes the motion. (ECF No. 58.)
On February 26, 2015, this Court entered an order declaring that “Defendant Pro
Marketing Sales lawfully possesses Priva’s collateral pursuant to its Security Agreement, and
that Pro Marketing is permitted to market, sell and/or license the SKSIC/TRSS technology.”
(ECF No. 49.) Cyber Solutions has appealed the order. (ECF No. 53.)
Pro Marketing contends that Cyber Solutions has disregarded this Court’s order and
has effectively precluded Pro Marketing from selling and/or licensing the TRSS technology
by actively marketing, selling, and licensing the TRSS technology itself. Pro Marketing
accordingly requests a preliminary injunction enjoining Cyber Solutions from marketing,
selling, or licensing the TRSS technology, and further requiring Cyber Solutions to post a
supersedeas bond in the amount of $4 million.
Pro Marketing seeks a preliminary injunction pursuant to 28 U.S.C. § 2202, which
provides that “[f]urther necessary or proper relief based on a declaratory judgment or decree
may be granted . . . against any adverse party whose rights have been determined by such
judgment.” 28 U.S.C. § 2202. In evaluating a motion for a preliminary injunction, this Court
considers:
(1) the movant’s likelihood of success on the merits; (2) whether the movant
will suffer irreparable injury without a preliminary injunction; (3) whether
issuance of a preliminary injunction would cause substantial harm to others;
and (4) whether the public interest would be served by issuance of a
preliminary injunction.
McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012) (citing Am. Imaging Servs., Inc. v.
Eagle-Picher Indus., Inc., 963 F.2d 855, 858 (6th Cir. 1992)). These four considerations are
“factors to be balanced and not prerequisites that must be satisfied.” Id. (quoting EaglePicher, 963 F.2d at 859). A preliminary injunction is an extraordinary remedy, and the party
seeking the preliminary injunction bears the burden of justifying such relief. Id.
In support of its assertion that Cyber Solutions has violated this Court’s declaratory
judgment, Pro Marketing has produced a page from Cyber Solutions’s website, which lists
TRSS as a Cyber Solutions product and invites inquiries. (Def.’s Br., Ex. A.) Pro Marketing
has also presented an affidavit from Richard H. Hall, its corporate secretary, stating that
because of confusion in the marketplace as to the rightful owner of the TRSS technology, Pro
Marketing has been unable to sell or license the technology. (Def.’s Br., Ex. B, Hall Decl.
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¶ 6.)
In response, Cyber Solutions has presented the affidavit of Douglas Benefield, its
managing director, who states that after Pro Marketing filed its motion, Cyber Solutions
removed the page describing the TRSS from its website. (Pl.’s Br. Ex. A, Benefield Decl.
¶ 3.) He also states that after the Court’s February 26, 2015 order, Cyber Solutions has not
made any sales of the TRSS or engaged in any other affirmative actions that would interfere
with Pro Marketing’s ability to license, market or sell the SKSIC/TRSS technology. (Id. at
¶ 4.)
Pro Marketing has not shown a likelihood of success on the merits of its claim that
Cyber Solutions has violated this Court’s declaratory judgment. The declaratory judgment
did not affirmatively require Cyber Solutions to take any particular action or to refrain from
any particular action with respect to the TRSS. To the extent Pro Marketing suggests that
it requires further relief pursuant to 28 U.S.C. § 2202, the Court finds that the request is not
properly before the Court because Pro Marketing did not request such further relief in its
motion for summary judgment (ECF No. 29), and because the declaratory judgment is
currently on appeal.
Neither has Pro Marketing shown that it would suffer irreparable harm if a preliminary
injunction is not entered. Pro Marketing has not shown that Cyber Solutions has taken any
action to market, sell, or license the TRSS technology beyond posting the challenged page
on its website. That page, however, has been removed. Accordingly, Pro Marketing has not
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Shown that the webpage would cause irreparable harm if a preliminary injunction is not
entered.
Although Pro Marketing complains that there is confusion in the marketplace
regarding ownership of the TRSS technology, Pro Marketing has not shown that such
confusion is caused by any prohibited action on the part of Cyber Solutions. Cyber Solutions
has appealed this Court’s order finding that Pro Marketing owns the TRSS, and that appeal
could, in itself, cause confusion or uncertainty in the marketplace as to ownership of the
TRSS technology. Any such insecurity or confusion would not be eliminated by the entry
of a preliminary injunction.
In its reply brief Pro Marketing has attached excerpts from Douglas Benefield’s
testimony before the bankruptcy court in August 2014 involving Cyber Solutions’s efforts
to market and sell the TRSS technology. That testimony pre-dates this Court’s February
2015 order, so it does not support Pro Marketing’s assertion that Cyber Solutions is currently
violating this Court’s order, or that it is currently engaged in efforts to market, sell, or license
the TRSS technology.
Pro Marketing has requested that Cyber Solutions be required to post a supersedeas
bond pending resolution of Cyber Solutions’s appeal. A supersedeas bond is a method by
which an appellant may obtain a stay pending appeal. Fed. R. Civ. P. 62(d) (“If any appeal
is taken, the appellant may obtain a stay by supersedeas bond . . . . ); Arban v. W. Pub. Corp.,
345 F.3d 390, 409 (6th Cir. 2003) (“Rule 62(d) entitles a party who files a satisfactory
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supersedeas bond to a stay of money judgment as a matter of right.”). Pro Marketing has not
cited any authority for imposing a supersedeas bond where the appellant has not requested
a stay, and the Court is aware of none.
Finally, Pro Marketing has requested that Cyber Solutions be required to place the
TRSS technology in escrow pending the outcome of the appeal. This argument was raised
for the first time in Pro Marketing’s reply brief. It did not appear in Pro Marketing’s original
motion. It is well established that a reply brief is not the proper place to raise new arguments.
See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (holding that issue
raised for the first time in a reply brief was not properly raised before the district court);
Int’l-Matex Tank Terminals-Illinois v. Chem. Bank, No. 1:08-CV-1200, 2009 WL 1651291, at *2
(W.D. Mich. June 11, 2009) (Maloney, C.J.) (declining to consider argument first raised in a reply
brief). Because Pro Marketing’s escrow argument was raised for the first time in its reply
brief, the Court will not consider it.
For all the reasons stated, the Court will deny Pro Marketing’s motion for preliminary
injunction, bond, and other relief.
An order consistent with this opinion will be entered.
Dated: October 1, 2015
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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