Fambrough et al v. G.C. Cameron et al

Filing 27

ORDER denying 20 Motion for TRO; deferring ruling on 20 Motion for Preliminary Injunction until conclusion of briefing Signed by Honorable David C. Bramlette, III on 6/19/2013 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
HENRY FAMBROUGH; BOBBY SMITH; AND
SPINNERS PERFORMING ARTS, INC.,
D/B/A “THE SPINNERS”
VS.

PLAINTIFFS

CIVIL ACTION NO. 5:13-cv-46(DCB)(MTP)

G.C. CAMERON, INDIVIDUALLY;
NATCHEZ CASINO OpCo, LLC, D/B/A
MAGNOLIA BLUFFS CASINO;
CASINO HOLDING INVESTMENT PARTNERS,
LLC; PREMIER GAMING GROUP, INC.;
L & G PRODUCTIONS; and JOHN DOES 1-10

DEFENDANTS

ORDER
This cause is before the Court on the plaintiffs’ Motion for
Ex Parte Restraining Order and Order of Preliminary Injunction
(docket entry 20).

Having carefully considered the motion and the

plaintiffs’ memorandum, as well as the evidence submitted by the
plaintiffs and the record in this case, the Court finds as follows:
This action was commenced in the Chancery Court of Adams
County, Mississippi, on January 25, 2013, with the filing of the
original Complaint by Henry Fambrough (“Fambrough”), Bobby Smith
(“Smith”),

and

Spinners

Spinners,”

against

(“SPA”),

On

the

plaintiffs

filed

their

and

“The

Products (“Cameron”), and “John Does acting in consort.”
2013,

individually

d/b/a

L&G

21,

Cameron,

Arts

d/b/a

February

G.C.

Performing

First

Amended

Complaint against Cameron; Natchez Casino OpCo, LLC, d/b/a Magnolia
Bluffs

Casino

Partners,

LLC

(“Natchez
(“Casino

Casino”);
Holding”);

Casino
Premier

Holding
Gaming

Investment
Group,

Inc.

(“Premier Gaming”); L&G Productions (“L&G”); and John Does 1-10.
The First Amended Complaint was served on defendants Natchez
Casino, Casino Holding, and Premier Gaming on February 28, 2013,
and on defendant Cameron on March 4, 2013.
Answer

to

the

First

Amended

Complaint

on

Cameron filed his
March

22,

2013.

Defendants Magnolia Bluffs, Casino Holding, and Premier Gaming
filed a Notice of Removal to this Court on March 28, 2013.
Defendant Cameron joined in the removal on April 1, 2013.

Also on

April 1, 2013, Magnolia Bluffs, Casino Holding, and Premier Gaming
filed their Answer to the First Amended Complaint.
motion by the plaintiffs was filed on June 6, 2013.

The present

There has been

no response by any of the defendants.
The plaintiffs’ First Amended Complaint is brought pursuant to
the

Lanham

Act,

15

U.S.C.

§§

1051,

et

seq.

(trademark

infringement), and Miss. Code Ann. § 75-25-25 (state law trademark
infringement). Plaintiffs Fambrough and Smith allege that they are
the only living members of the original recording and performing
group “The Spinners,” and that they continue to perform and conduct
their business activities through SPA.

Defendant Cameron is

alleged to be a resident citizen of Natchez, Mississippi.
plaintiffs allege that Cameron
has performed, is performing, and/or will continue to
publicly perform as a member of groups styling themselves
as “Legendary Lead Singer of The Spinners,” and/or as
“The Spinners Reunion Show,” “The Spinners, featuring
G.C. Cameron,” or under other names which incorporate the
name and mark “The Spinners,” and that said Defendant has
2

The

profited from, and unless enjoined, will continue to
profit from, the unauthorized use of Plaintiffs’ trade
name and service mark, “The Spinners,” in violation,
infringement and misappropriation of Plaintiffs’ right to
exclusive use of the name and mark, “The Spinners,” for
such performances ....
First Amended Complaint, ¶ 9.

The plaintiffs further allege that

Cameron
books, advertises, owns, manages, controls, and/or
otherwise participates in the booking, advertising,
management, control and/or ownership of those groups
styling themselves as “The Spinners,” and/or as “The
Motown Spinners,” or similar derivative names, and that
said defendant has profited from, and unless enjoined
will continue to profit from, the unauthorized use of
Plaintiffs’ trade name and service mark, “The Spinners.”
First Amended Complaint, ¶ 10.
Plaintiff Fambrough is a resident citizen of the state of
Michigan.

Smith is a resident citizen of the state of Florida.

SPA is a corporation organized pursuant to the laws of the state of
Michigan with its principal place of business in Troy, Michigan.
Natchez
liability

Casino

company

is

alleged

managed

by

to

Casino

be

a

Mississippi

Holding,

also

a

limited
limited

liability company, both doing business in Natchez, Mississippi.
Premier Gaming is alleged to be a Kentucky corporation qualified to
do business in Mississippi.
unclear.

The status of defendant L&G is

The original Complaint was filed against defendant

Cameron “d/b/a L&G Productions.” The First Amended Complaint names
L&G Productions as a separate defendant but does not allege its
status as a business entity nor its agent for service of process.

3

Defendant Cameron answered both the original Complaint and the
First Amended Complaint as “G.C. Cameron, individually and d/b/a
L&G Productions.” Concerning defendant L&G, the plaintiffs allege,
in their First Amended Complaint:
Defendant, L&G Productions (L&G) is an entity known to
Defendant G.C. Cameron and the Magnolia Defendants1,
Plaintiffs is [sic] informed and believe, and based on
such information and belief alleges [sic], that L&G is a
business affiliated with and located within the custody
and/or control of Defendant Cameron and/or Magnolia
Defendants and which is owned and/or controlled by
Defendant Cameron and/or Magnolia Defendants. Further
L&G figure [sic] prominently in the fraudulent
presentation of the knockoff fraudulent group presented
to the public in violation of Plaintiffs’ trademark, name
and business enterprise.
First Amended Complaint, ¶ 13.
The John Doe defendants are alleged to be
alter egos of Defendant Cameron and [...] said
Defendant[s] inter alia, have promoted themselves to
venues, styling themselves as “Legendary Lead Singers of
The Spinners” and/or as “The Spinners Review[,”] and have
performed, and are currently performing, or are scheduled
to perform, and that said Defendants have profited from
such performances, including having done so with the
Magnolia Defendants, or will continue to profit from such
performances, unless enjoined.
First Amended Complaint, ¶ 14. The plaintiffs also allege that one
of the John Doe defendants is
an individual of Unknown domicile, who books, advertises,
owns, manages, controls, and/or otherwise participates in
the booking, advertising, management, control and/or
ownership of those groups styling themselves as
“Legendary Lead Singers of the Spinners,” and/or as “The

1

The plaintiffs refer to defendants Natchez Casino, Casino
Holding, and Premier Gaming as “the Magnolia Defendants.”
4

Spinners Reunion Show,” or similar derivative names, and
that said defendant has profited from, and unless
enjoined will continue to profit from, the unauthorized
use of Plaintiff[s’] trade name and service mark, “The
Spinners.”
First Amended Complaint, ¶ 15.
The plaintiffs allege false and misleading advertising by all
defendants,

including

internet

advertising

by

Defendants.

First Amended Complaint, ¶¶ 54-56.

the

Magnolia

The plaintiffs

also allege that “The Magnolia Defendants advertised, sold tickets
to, and presented a show by ‘The Spinners’ on Saturday January 26,
2013, which falsely indicated that the show being thus presented
was a show to be performed by Motown Spinners and ... also ‘The
Spinners’.”
The

First Amended Complaint, ¶ 57.

First

Amended

Compliant

seeks

injunctive

relief

for

alleged violations of 15 U.S.C. § 1125(a) (False Designation of
Origin and False Description), 15 U.S.C. § 1125(a) and Miss. Code
Ann. § 75-25-25 (Trade Dress Infringement), and 15 U.S.C. § 1125(c)
(Federal Trademark Dilution), as well as 15 U.S.C. § 1116 and
Miss.R.Civ.P. 65 (Preliminary and Permanent Injunction).

The

plaintiffs also seek damages and treble damages under 15 U.S.C. §§
1125(a) and 1125(c).

Finally, the plaintiffs seek declaratory

relief to quiet their title and exclusive right to use the name
“The Spinners” for public performances, pursuant to 15 U.S.C. §
1125 and Miss. Code Ann. § 75-25-25.
The plaintiffs’ Motion for Ex Parte Restraining Order and

5

Order of Preliminary Injunction is brought pursuant to Fed.R.Civ.P.
65, which provides: “The court may issue a preliminary injunction
only on notice to the adverse party.” Fed.R.Civ.P. 65(a)(1). Rule
65 further provides:
The court may issue a temporary restraining order without
written or oral notice to the adverse party or its
attorney only if:
(A) specific facts in an affidavit or a verified
complaint clearly show that immediate and irreparable
injury, loss, or damage will result to the movant before
the adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any
efforts made to give notice and the reasons why it should
not be required.
Fed.R.Civ.P. 65(b)(1)(A)&(B).
“A temporary restraining order relates only to restraints
sought without written or oral notice to the adverse party or his
attorney, whereas the application is properly treated as one for a
preliminary injunction where the adverse party was given notice.”
Tolliver v. Collins, 2009 WL 2168321, *1 (S.D. Ohio July 17, 2009)
(citations omitted).
of

the

plaintiffs’

In this action, the defendants were notified
motion

through

the

court’s

ECF

system

simultaneously with the filing of the motion. Therefore, the Court
will

treat

the

injunction.

Id.

“[I]n

the

plaintiffs’

motion

context

Rule

of

as

one

65(a),

for

notice

opportunity to be heard and to present evidence.”

a

preliminary

implies

the

Hatchett v.

Eich, 2010 WL 1286883, *2 (E.D. Wis. March 30, 2010)(citing Medeco
6

Security Locks, Inc. v. Swiderek, 680 F.2d 37, 38 (7th Cir. 1982)).
“The Court must ‘allow [the adverse] party sufficient time to
marshal his evidence and present his arguments against the issuance
of the injunction,’ i.e., the adverse party must be afforded a
‘fair opportunity’ to oppose the preliminary injunction.”

Id.

(citing Garcia v. Yonkers Sch. Dist., 561 F.3d 97, 105 (2nd Cir.
2009)(quoting Rosen v. Siegel, 106 F.3d 28, 31 (2nd Cir. 1997)).
The Court shall therefore allow the defendants fourteen (14)
days from the date of entry of this Order to file their responses
to the motion for preliminary injunction.

The plaintiffs shall

have seven (7) days to file rebuttals.
On June 13, 2013, the plaintiffs filed a Rule 15(a)(2) motion
for leave to file a Second Amended Complaint.

The plaintiffs seek

to add four additional defendants “who heretofore were unknown John
Does”:

Linda Dixon a/k/a Linda Thomas, a/k/a Lady L; Winfred

Black; Jerome Jackson; and Steven Keith Smith.

This motion is

presently pending before Magistrate Judge Parker. In their motion,
the plaintiffs allege that defendant Cameron, the proposed four
additional defendants, “and others have scheduled another concert
for August 24, 2013, using the property rights, the name of the
Plaintiffs, ‘The Spinners’ and all manner of likeness and promotion
perpetrating upon the public, they are the Spinners, when they are
not.”

Memorandum, ¶ 3.
In order to assure a prompt hearing on the plaintiffs’ motion

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for preliminary injunction, the Court orders the following briefing
schedule:
(1) The present named defendants shall file their responses to
the plaintiffs’ motion within fourteen (14) days from the date of
entry of this Order;
(2) The plaintiffs shall file their rebuttals within seven (7)
days from the date they receive the defendants’ responses;
(3) If the plaintiffs are allowed to file a Second Amended
Complaint adding the proposed four additional defendants, and
assuming the plaintiffs also plan to file a motion for preliminary
injunction against these four defendants; then, along with the
Summons and Second Amended Complaint, the plaintiffs shall serve
such motion for preliminary injunction, along with a copy of this
Order, on said newly added defendants.

The newly added defendants

shall file their responses to the motion for preliminary injunction
within the time allowed for service of their Answer to the Second
Amended Complaint (21 days);
(4) The plaintiffs shall file their rebuttals within seven (7)
days from the date they receive the newly added defendants’
responses.
Once specific dates for these deadlines have been established,
the Court will set the hearing on the plaintiffs’ motion for
preliminary injunction.
Accordingly,

8

IT IS HEREBY ORDERED that the plaintiffs’ motion for temporary
restraining order (docket entry 20) is DENIED;
FURTHER ORDERED that the plaintiffs’ motion for preliminary
injunction (docket entry 20) shall be held in abeyance, shall be
briefed by the parties as outlined above, and shall be set for
hearing by the Court at the earliest possible date following the
conclusion of briefing.
SO ORDERED, this the 19th day of June, 2013.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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