Calzone King, LLC v. Midwest Dough Guys, LLC et al

Filing 13

TEMPORARY RESTRAINING ORDER - 1. Calzone King shall effect service on Defendants of the Complaint, the Motion for Temporary Restraining Order and all supporting documents, this Court's Memorandum and Order on Motion for Temporary Restraining, an d this Temporary Restraining Order and shall file proof of such service not later than Wednesday, September 4, 2024, or the deadlines below may have to be reset, the hearing rescheduled, and this Temporary Restraining Order extended for good cause be yond its initial 14-day term. See Fed. R. Civ. P. 65(b)(2). 2. Calzone King shall have to and including Wednesday, September 4, 2024, to file a Motion for Preliminary Injunction and any further submissions in support of such Motion. Defendants shall have to and including Monday, September 9, 2024, to file an opposition to Calzone King's Motion for Preliminary Injunction. Calzone King shall file any reply not later than 5:00 p.m. on Wednesday, September 11, 2024. All such briefs and support ing documents shall otherwise comply with NECivR 7.1.3. The Court will hold a hearing on Calzone King's Motion for Preliminary Injunction at 10:00 a.m. on Thursday, September 12, 2024, in Courtroom 5 of the Roman L. Hruska Federal Courthouse in Omaha, Nebraska. The Court will resolve the Motion for Preliminary Injunction on the parties written submissions and oral arguments, unless a party files a motion not later than 12:00 p.m. on Tuesday, September 10, 2024, demonstrating good cause for the presentation of witnesses.Ordered by Judge Brian C. Buescher. (E-mailed to finance)(TJM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CALZONE KING, LLC,
8:24CV335

Plaintiff,
vs.
MIDWEST DOUGH GUYS, LLC, NICKOLAS
ROWAN, and CORY ROWAN,

TEMPORARY RESTRAINING ORDER

Defendants.
The Court having considered the Verified Complaint filed by plaintiff Calzone King, LLC,
on August 27, 2024, Filing 1, and Calzone King’s Motion for Temporary Restraining Order, Filing
4, and supporting brief, Filing 5,
THE COURT FINDS for preliminary purposes,
•

that defendants Midwest Dough Guys, LLC, entered into Franchise
Agreements with Calzone King that were guaranteed by defendants
Nickolas Rowan a/k/a Nickolas Seevers (Seevers) and Cory Rowan
(Rowan) granting Midwest Dough Guys the right to operate a D.P. Dough
restaurant within 1.5 miles of the University of Nebraska in Lincoln,
Nebraska, the Kansas State University in Manhattan, Kansas, and the
University of Nebraska at Kearney, in Kearney, Nebraska, respectively,
each containing Non-Complete Provisions governing the conduct of
Defendants during the term of the Franchise Agreements and upon
termination of the Franchise Agreements for any reason;

•

that Defendants are in breach of the Lincoln Franchise Agreement’s NonCompetition Provision because Defendants filed for bankruptcy, abandoned
the Franchise Agreements, and began operating a competing business called
Misfits on O or Misfits Calzones on O Street at the location of the former
franchise;

•

that Defendants have also continued to use the D.P. Dough service mark in
commerce after termination of their license to do so in violation of 15
U.S.C. § 1125(a);

•

that Calzone King has shown a threat of irreparable harm to its business
from violations of the Non-Competition Provisions in the Franchise
Agreements and consumer confusion from unlicensed use of the D.P. Dough
service mark;
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•

that the balance of harms favors Calzone King while any harm to
Defendants of temporarily restraining their actions is only self-inflicted
from violations of their obligations; and

•

that the public interest favors enforcement of the contractual obligations in
the Non-Compete Provisions of the Franchise Agreements.

IT IS THEREFORE ORDERED that pending a hearing on Calzone King’s application for
a preliminary injunction under Federal Rule of Civil Procedure 65, Defendants are temporarily
restrained as follows:
1.

Defendants, and all persons or entities acting in concert with them, are prohibited

from using D.P. Dough’s service mark, and Defendants shall immediately remove the D.P. Dough
service mark from the Misfits on O Facebook page.
2.

Defendants, and all persons or entities acting in concert with them, are restrained

and enjoined from operating a business in Lincoln, Nebraska, offering or advertising calzones or
pizza.
3.

Defendants, and all persons or entities acting in concert with them, are prohibited

from offering or advertising calzones for sale at Misfits on O.
AND IT IS FURTHER ORDERED that this Temporary Restraining Order shall expire
fourteen (14) days from the date and time it is issued unless within such time, for good cause
shown, the Order is extended for an additional period not to exceed fourteen (14) calendar days,
or unless it is further extended under Federal Rule of Civil Procedure 65.
AND IT IS FURTHER ORDERED that, under Federal Rule of Civil Procedure 65(c), this
Temporary Restraining Order shall issue upon Calzone King posting a security in accordance with
NECivR 65.1.1 in the amount of $15,000 cash or bond as security for the payment of such costs
and damages as may be incurred or suffered by any party who is subsequently found to be
wrongfully enjoined or restrained hereby. This security or bond may be submitted to the Clerk of
the Court to be held in trust.
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FINALLY, IT IS FURTHER ORDERED that
1.

Calzone King shall effect service on Defendants of the Complaint, the Motion for

Temporary Restraining Order and all supporting documents, this Court’s Memorandum and Order
on Motion for Temporary Restraining, and this Temporary Restraining Order and shall file proof
of such service not later than Wednesday, September 4, 2024, or the deadlines below may have to
be reset, the hearing rescheduled, and this Temporary Restraining Order extended for good cause
beyond its initial 14-day term. See Fed. R. Civ. P. 65(b)(2).
2.

Calzone King shall have to and including Wednesday, September 4, 2024, to file a

Motion for Preliminary Injunction and any further submissions in support of such Motion.
Defendants shall have to and including Monday, September 9, 2024, to file an opposition to
Calzone King’s Motion for Preliminary Injunction. Calzone King shall file any reply not later than
5:00 p.m. on Wednesday, September 11, 2024. All such briefs and supporting documents shall
otherwise comply with NECivR 7.1.
3.

The Court will hold a hearing on Calzone King’s Motion for Preliminary Injunction

at 10:00 a.m. on Thursday, September 12, 2024, in Courtroom 5 of the Roman L. Hruska Federal
Courthouse in Omaha, Nebraska. The Court will resolve the Motion for Preliminary Injunction on
the parties’ written submissions and oral arguments, unless a party files a motion not later than
12:00 p.m. on Tuesday, September 10, 2024, demonstrating good cause for the presentation of
witnesses.
Dated this 30th day of August, 2024.

BY THE COURT: 

_________________________
Brian C. Buescher 
United States District Judge

Issued at _____ a.m./p.m. on _______________
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