Evergreen Research and Marketing, LLC v. Mystical Distributing Co.. Ltd

Filing 13

ORDER that 10 Second Ex Parte Application for a Temporary Restraining Order is DENIED. Signed by Judge Jennifer A. Dorsey on 2/27/15. (Copies have been distributed pursuant to the NEF - MMM)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
4

EVERGREEN RESEARCH AND
MARKETING, LLC, a California limited
liability company

5

Plaintiff,

No: 2:15-cv-00318-JAD-PAL
Order Denying Second Ex Parte
Application for Temporary
Restraining Order [Doc. 10]

6

vs.

7

MYSTICAL DISTRIBUTING CO., LTD, a
Canadian limited partnership, and DOES 1-10,

8

Defendants.

9
10
11

Plaintiff Evergreen Research and Marketing has filed a second ex parte motion

12

against defendant Mystical Distributing for an emergency temporary restraining order and

13

preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure and Local Rule

14

7-5. Evergreen’s first ex parte motion was denied without prejudice because, although it laid

15

out a potentially persuasive claim for trade dress infringement against Mystical, Evergreen

16

failed to “give[] security in an amount that the court considers proper to pay the costs and

17

damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed.

18

Rule of Civ. P. 65(c).1 Evergreen cured this defect in its second ex parte motion. But after

19

reviewing this second motion, I discovered that a more fundamental defect remains:

20

Evergreen has failed to provide “specific facts in an affidavit or a verified complaint clearly

21

show[ing] that immediate and irreparable injury, loss, or damage will result to [Evergreen]

22

before [Mystical] can be heard.” Fed. Rule of Civ. P. 65(c).

23

At one time, irreparable harm could be presumed from a showing of likelihood of

24

success on the merits in trade dress and trademark actions. See Marlyn Nutraceuticals, Inc.

25

v. Mucos Pharma GmbH & Co., 571 F.3d 873, 877 (9th Cir. 2009). Recently, however, the

26
27
28

1

To the extent my prior order (Doc. 8 at 1) suggested that Evergreen had made a persuasive case
for the issuance of injunctive relief and not merely the merits of its trade-dress claim, I vacate that
statement.
Page 1 of 3

1

Ninth Circuit recognized in Herb Reed Enterprises, LLC v. Florida Entertainment

2

Management, Inc., 736 F.3d 1239, 1249 (9th Cir. 2013), that the U.S. Supreme Court’s

3

decision in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 338 (2006), abrogated that

4

presumption. Evergreen, therefore, must show that the harm it will suffer cannot be

5

adequately compensated or corrected at a later date by legal remedies or monetary damages.

6

See Cal. Pharma Assn. Maxwell-Jolly, 563 F.3d 847, 852 (9th Cir. 2009).
Evergreen has not met this burden. To demonstrate irreparable harm, it submits only

7
8

the declaration of its “principal owner” who offers the fact-devoid, conclusory statement that

9

Evergreen “will lose approximately $500,000 in gross revenue” from an upcoming trade

10

show in Las Vegas, Nevada, if Mystical is not immediately—and without prior

11

notice—enjoined. Doc. 10-2 at ¶16. But Evergreen does not indicate how it arrived at this

12

very round damages estimate and, as the Ninth Circuit explained in Los Angeles Mem’l

13

Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1202 (9th Cir. 1980), “monetary

14

injury is not normally considered irreparable” because it may be compensable by a damages

15

award. Nor does Evergreen even begin to suggest why its anticipated $500,000 loss could

16

not be adequately remedied with a damages award.
“Evidence of loss of control over business reputation and damage to goodwill [also]

17
18

could constitute irreparable harm.” Herb Reed, 736 F.3d at 1250 (citing Stuhlbarg Int’l Sales

19

Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 841 (9th Cir. 2001)). But Evergreen

20

does not argue that Mystical’s trade-show activities will risk such intangible injury. See Doc.

21

10 at 9-10. In sum, Evergreen has not demonstrated that, absent the extraordinary relief of a

22

temporary restraining order, it will be irreparably harmed. Evergreen’s motion is therefore

23

denied.

24

...

25
26
27
28
Page 2 of 3

CONCLUSION

1
2
3
4

Accordingly, it is HEREBY ORDERED that Plaintiff’s Second Motion for Ex Parte
Application for a Temporary Restraining Order [Doc. 10] is DENIED.
DATED: February 27, 2015.

5
6
7

_________________________________
Jennifer A. Dorsey
United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 3 of 3