Future Motion, Inc. v. Changzhou First International Trade Co., Ltd.

Filing 11

ORDER GRANTING EX PARTE TEMPORARY RESTRAINING ORDER, SEZIURE ORDER AND SETTING HEARING DATE FOR MOTION FOR PRELIMINARY INJUNCTION. See order for specifics. Plaintiff to deposit with the Clerk of the Court the amount of $10,000.00 pursuant to L R 65.1-2 to serve as security. If additional security is required, Defendant shall file an application to the Court and provide notice to the Plaintiffs by 1/11/2016. Responses due by 1/11/2016. Replies due by 1/13/2016. A hearing on the Preliminary Injunction Motion is set for 1/14/2016 02:30 PM in LV Courtroom 4A before Judge Miranda M. Du. Signed by Judge Miranda M. Du on 1/6/2016. (Copies have been distributed pursuant to the NEF - PAV)

Case 2:16-cv-00013-MMD-CWH Document 8-20 Filed 01/06/16 Page 1 of 7

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3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996

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W. WEST ALLEN
Nevada Bar No.: 5566
LEWIS ROCA ROTHGERBER CHRISTIE LLP
3993 Howard Hughes Parkway, Suite 600
Las Vegas, Nevada 89169
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
KOLISCH HARTWELL, P.C.
SHAWN J. KOLITCH (Pro Hac Vice Pending)
Oregon State Bar No. 063980
200 Pacific Building
520 S.W. Yamhill Street
Portland, OR 97204
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff
Future Motion, Inc.

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FUTURE MOTION, INC.,

Case No.: 2:16-cv-00013-MMD-CWH

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Plaintiff,

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v.

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CHANGZHOU FIRST INTERNATIONAL
TRADE CO., LTD.,

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[PROPOSED] ORDER GRANTING
PLAINTIFF’S EMERGENCY MOTION
FOR AN EX PARTE TEMPORARY
RESTRAINING ORDER, SEIZURE
ORDER AND SETTING HEARING
DATE FOR MOTION FOR
PRELIMINARY INJUNCTION

Defendant.

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Plaintiff Future Motion, Inc. (“Future Motion”) has moved ex parte for a Temporary
Restraining Order, Seizure Order and a Preliminary Injunction, pursuant to Federal Rules of Civil

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Procedure, Rule 65, the Patent Act, 35 U.S.C. § 283, and Local Rule of Civil Practice 7-5. Future
Motion alleges that Defendant Changzhou First International Trade Co., Ltd. (“Changzhou”) is
distributing, promoting, and offering to sell products branded as “Surfing Electric Scooter,”

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including at the 2016 International Consumer Electronics Show (“CES”) in Las Vegas, Nevada,

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which infringe Future Motion’s U.S. Patent No. D746,928 (“the ‘928 patent”) and U.S. Patent No.

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9,101,817 (“the ‘817 patent”). Future Motion further alleges that Defendant has willfully copied
Future Motion’s patented technology and product design, and that Future Motion will be

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irreparably harmed if the Court does not provide immediate injunctive relief to stop Defendant’s
infringing activities.
FINDINGS AND CONCLUSIONS

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The Court, having duly considered Future Motion’s Complaint, Emergency Motion and

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3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996

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Supporting Memorandum for Entry of Temporary Restraining Order, Seizure Order and Preliminary

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Injunction, declarations and exhibits submitted therewith, makes the following preliminary findings

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and conclusions:
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1.

This Court has jurisdiction over this matter and over the Defendant. In addition, this

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Court is a proper venue for this action and the Defendant has been properly served or will be served

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as discussed more fully herein.

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2.

Future Motion is likely to succeed in showing that the ‘928 patent that is appended to

the Complaint as Exhibit A, is owned by Future Motion, is valid, and is enforceable, and that
Defendant has promoted and is making, offering for sale, selling and/or importing into the United

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States products that infringe the ‘928 patent.
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3.

Further, Future Motion is likely to succeed in showing that the ‘817 patent that is

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appended to the Complaint as Exhibit B, is owned by Future Motion, is valid, and is enforceable, and

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that Defendant has promoted and is making, offering for sale, selling and/or importing into the United

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States products that infringe the ‘817 patent.

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4.

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Specifically, Future Motion is likely to succeed on their patent infringement claims

against Defendant’s “Surfing Electric Scooter” products and colorable imitations thereof (the
“Accused Products”).

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5.

It appears to the Court that Defendant is a China-based manufacturer of commercial

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products and, with the exception of its temporary presence in the United States during the 2016 CES
show, does not have a regular place of business or assets in the United States. Further, Defendant is
likely to offer the infringing products for sale at the CES show, and then leave the United States. It

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also appears likely that, absent a grant of the requested relief, Defendant will use its efforts at CES to

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3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996

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fulfill orders, import the infringing products, and sell those products to customers in the United

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States.

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6.

Absent an ex parte temporary restraining order, Defendant’s promotion and offers for

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sale of the Accused Products will result in immediate and irreparable injury to Future Motion in the

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form of lost market share, loss of control over its valuable intellectual property rights, loss of

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consumer goodwill, and interference with Future Motion’s ability to exploit the ‘928 patent and the

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‘817 patent. Further, because Defendant has no apparent presence in the United States, it may be

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difficult or impossible for Future Motion to recover a monetary judgment against Defendant.

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7.

It appears to the Court based on Future Motion’s representations that Future Motion

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has made reasonable efforts to notify Defendant of its infringement and the likelihood that Future
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Motion would seek court intervention, but that Defendant has not responded to Future Motion’s

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communications.

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8.

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The harm to Future Motion in denying the requested temporary restraining order

outweighs the harm to the legitimate interests of Defendant from granting such relief.
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The public interest weighs in favor of granting Future Motion the requested temporary

restraining order.

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10.

Defendant is currently exhibiting products evidencing Defendant’s willful patent

infringement alleged in the Complaint at the CES show taking place Jan. 6-9 in Las Vegas, Nevada.
To prevent irreparable harm to Future Motion, the Court believes it is appropriate to prevent
Defendant from exhibiting and offering for sale these products at the CES show. Because of the

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timing of the show this week, this relief can only be granted immediately and on an emergency basis,
without delaying to provide formal notice and an opportunity to appear to Defendant.
TEMPORARY RESTRAINING ORDER

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IT IS HEREBY ORDERED that pending a decision by the Court on Future Motion’s

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3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996

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application for preliminary injunction, Defendant and its officers, agents, servants, employees, and

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attorneys, and all other persons acting in active concert or participation with any of them, are hereby

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immediately, temporarily restraining from infringing Future Motion’s ‘928 patent or ‘817 patent at
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the CES show in Las Vegas Nevada from January 6-9, 2016. Specifically, Defendant is hereby
temporarily restrained from:

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1. Making, using, selling, offering to sell, and importing into the United States commercial

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products that infringe U.S. Design Patent No. D746,928 or U.S. Patent No. 9,101,817, and

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colorable imitations thereof, including but not limited to Defendant’s “Surfing Electric

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Scooter” products, by (a) offering to sell or selling such products to customers in the United
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States in any manner, or (b) offering to sell or selling such products at CES in Las Vegas,
Nevada from January 6-9, 2016;
2. Processing any payment (regardless of how the payment is made) for the sale of any of the
accused products identified or encompassed by paragraph 1 above;
3. Transferring, moving, returning, destroying, or otherwise disposing of (a) any of the accused

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products identified or encompassed by paragraph 1 above, or (b) any other evidence of
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Defendant’s illegal activities, including, without limitation, documents in any form or format
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and any portable media device (such as, but not limited to, CDs, DVDs, flash drives, cell

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phones, PDAs, hard disk drives, laptop computers, and memory cards), relating to

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infringement of Future Motion’s U.S. Design Patent No. D746,928 or U.S. Patent No.
9,101,817, except pursuant to the Seizure Order below (collectively, “Evidence”).

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IT IS HEREBY FURTHER ORDERED that, in accordance with the Court’s inherent
equitable power to issue provisional remedies ancillary to its authority to provide final equitable
relief, any web hosting company, domain name registry, and/or domain name registrar having notice

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of the Court’s Order must (1) take any and all action necessary to remove the infringing products

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from websites having content controlled by Defendant, or alternatively to disable access to the

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website; and (2) provide notice of compliance to Future Motion’s counsel within ten (10) business

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days of receipt of notice of this Order.
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IT IS HEREBY FURTHER ORDERED that Defendant may, upon proper showing, appear
and move for the dissolution or modification of the provisions of this Order.
SEIZURE ORDER

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IT IS HEREBY ORDERED that Evidence (as defined above in paragraph 3 of the Court’s

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Temporary Restraining Order) shall be seized by the United States Marshals Service, assisted by one

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or more attorneys or representatives of Future Motion, at any booth rented or occupied by Defendant

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at CES as soon as practicable during the period of January 6-8, 2016. The United States Marshals
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Service may use all reasonable force in conducting the seizure and may open doors, locks, boxes,

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briefcases, and containers of any type or nature to locate and identify Evidence to be seized.

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Attorneys and other representatives of Future Motion must accompany the United States Marshals

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Service during the seizure to identify the Evidence to be seized. Future Motion counsel must itemize

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and take possession of the seized Evidence, provide a copy of the inventory to the United States
Marshals Service, and file the inventory with the Court. In addition, Future Motion’s counsel may

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record the contents of Defendant’s CES booth(s) and Evidence by photographic, audio, and/or

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videographic means during the seizure action. The United States Marshals Service shall not retain

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custody of seized Evidence but shall ensure that the Evidence is placed in the custody of Future
Motion’s counsel. Future Motion agrees to indemnify the United States Marshals Service and hold it

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3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996

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harmless from any suit, claim, cause of action, damage, loss or injury arising from the execution of
the seizure described in this Order. Additional official(s) representing Future Motion, Inc. may
effectuate or assist with this Order as may be required.
IT IS HEREBY FURTHER ORDERED that Defendant must provide any passwords
necessary to access any electronically stored documents or electronic devices containing Evidence.
IT IS HEREBY FURTHER ORDERED that access to any seized Evidence will be limited

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to Future Motion’s outside counsel and contractors retained by Future Motion’s outside counsel to
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copy, image and translate such evidence until five (5) days after entry of this Order, or as otherwise

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ordered by the Court, to enable Defendant the opportunity to respond and seek an appropriate

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protective order with respect to any confidential information or trade secrets.

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ADDITIONAL ORDERS
IT IS HEREBY FURTHER ORDERED that Future Motion shall deposit with the Clerk of
the Court the amount of TEN THOUSAND UNITED STATES DOLLARS ($10,000) pursuant to

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LR 65.1-2 to serve as sufficient security for the payment of any damages Defendant may be able to
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recover as a result of a wrongful seizure. To the extent Defendant believes that additional security is

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necessary pursuant to Rule 65(c), Defendant shall file an application to the Court and provide notice

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January 11, 2016
to counsel for Future Motion by ___________________________.

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IT IS HEREBY FURTHER ORDERED that a preliminary injunction hearing is set for

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4A
2:30 p.m.
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January, _____________, 2016, at the hour of _________________, in Courtroom _____ before the

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Miranda M. Du
Honorable ______________________________________________.

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Defendant shall file and serve any opposition to Future Motion’s motion for a preliminary
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injunction by January ____________, 2016.
Future Motion shall file and serve any reply in support of their motion for a preliminary
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injunction by ____________________________, 2016.

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IT IS HEREBY FURTHER ORDERED that this Order and the Summons and Complaint
(and all supporting documents) must be served upon Defendant in person, if found at the 2016
International CES show, and by other means reasonably calculated to give Defendant notice of this

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action, which shall include (a) via e-mail to the e-mail address provided by Defendant on its website

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Las Vegas, NV 89169-5996

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(http://cz-first.com/): [e-mail], and (b) via international FedEx to the postal address

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provided by Defendant on its website: Longyu Western Road No. 28, Wujin, Changzhou, China.

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IT IS SO ORDERED:
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______________________________________
UNITED STATES DISTRICT JUDGE

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January 6, 2016
Dated: _________________________

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LEWIS ROCA ROTHGERBER CHRISTIE LLP,

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/s/ W. West Allen
W. West Allen
Nevada Bar No.: 5566
3993 Howard Hughes Parkway, Suite 600
Las Vegas, Nevada 89169

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KOLISCH HARTWELL, P.C.
SHAWN J. KOLITCH (Pro Hac Vice Pending)
Oregon Bar No. 063980
200 Pacific Building
520 S.W. Yamhill Street
Portland, Oregon 97204

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Attorneys for Plaintiff
Future Motion, Inc.

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