Activation Products (CAN) Inc., et al v. Wecker, et al

Filing 10

ORDER: Denying Motion for a Temporary Restraining Order 6 . Plaintiffs' Application for a Temporary Restraining Order and Motion for an Order to Show Cause Why a Preliminary Injunction Should Not Issue 6 is DENIED. At plaintiffs' ; request,the Court will entertain a motion for a preliminary injunction after defendants have been served withnotice of this lawsuit. If plaintiffs file such a motion, they are free to request expedited consideration pursuant to L.R. 7-l(g). See, formal Order. Signed on 1/9/2017 by Judge Ann L. Aiken. (rdr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

ACTIVATION PRODUCTS (CAN) INC.
and IAN CLARK,

Case No. 6:16-cv-02182-TC
ORDER

Plaintiffs,
v.
ANDREAS WECKER, STEPHEN
HEUER, and TIME MACHINE, LLC,
Defendants.

AIKEN, Judge:
Plaintiffs Activation Products (CAN) Inc. ("Activation") and Ian Clark seek a temporary
restraining order prohibiting defendant Andreas Wecker from making false and defamatory
statements about Activation's products and Clark; selling, using, or destroying certain property

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currently in Wecker' s possession; and pursuing any claim, including any application to register a
trademark, related to Wecker's rights to intellectual propetiy owned by Activation. Plaintiffs also
move for an order to show cause why a preliminaty injunction should not issue. For the reasons set
fotih below, plaintiffs' motion for a temporaty restraining order and order to show cause is denied.
The same general legal standards govern temporary restraining orders and preliminary
injunctions. Fed. R. Civ. P. 65; New "1.fotor Vehicle Bd. ofCal. v. Orrin W. Fox Co., 434 U.S. 1345,
1347 n.2 (1977). A plaintiff seeking such relief must establish (1) a likelihood of success on the
merits; (2) a likelihood of irreparable harm in the absence of preliminaty relief; (3) the balance of
equities tips in the plaintiffs favor; and (4) a preliminary injunction is in the public interest. Winter
v. Nat 'l Resources Def Council, 555 U.S. 7, 21 (2008). A court may not enter a preliminary
injunction without first affording the adverse patiy notice and an opportunity to be heard. Fed. R.
Civ. P. 65(1)(2); People ofState ofCal. ex rel. Van De Kamp v. Tahoe Regional Planning Agency,
766 F.2d 1319, 1322 (9th Cir. 1985). By contrast, in an emergency a temporaty restraining order
may be entered without notice. See Fed R. Civ. P. 65(b)(l)(A) (restricting availability of ex parte
temporary restraining orders to situations in which "immediate and irreparable injmy, loss, or
damage will result to the movant before the adverse party can be heard in opposition.")
A temporary restraining order is not justified here for three reasons. First, the amended
complaint does not show the type of emergent harm required by Rule 65(b)(l)(A). The business
relationship between Activation and Wecker ended more than a year ago, in November 2015. The
amended complaint does not provide specific dates but suggests Wecker began making false
statements about plaintiffs shortly after that relationship ended. The exhibits attached to Clark's
affidavit, purportedly statements defendants made on websites, are dated June 2016 and October (no

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year specified, but presumably also 2016). Plaintiffs filed this lawsuit November 17, 2016, but did
not move for a temporary restraining order until more than a month later. Plaintiffs have not
explained why they waited until now to request preliminary relief, and there is no allegation that
Wecker's conduct has increased in severity or frequency such that immediate relief is necessary.
Moreover, plaintiffs' conduct after filing the motion further suggests there is no emergency.
Plaintiffs filed the motion on December 21, 2016, but later informed the Court that there was no
need for a ruling on the motion until sometime in January. On the record currently before the Court,
there is no emergency justifying issuance of a temporary restraining order.
Second, two of plaintiffs' requests for the relief- that Wecker be eajoined from making
false statements about plaintiffs and Activation products, and that Wecker be prohibited from
claiming he owns certain intellectual property and be directed to withdraw his application to register
trademarks -

raise serious First Amendment concerns.

Prior restraints on expression are

presumptively unconstitutional. Neb. Press Ass 'n v. Stuart, 427 U.S. 539, 561 (1976). Preliminary
relieflimiting a party's speech is, by definition, a prior restraint on expression. Alexander v. United
States, 509 U.S. 544, 550 (1993). Although the prohibition against prior restraint is not absolute,

"the gagging of publication has been considered acceptable only in 'exceptional cases."' CBS, Inc.
v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (quoting Near v. Minnesota, 283

U.S. 697, 716 (1931)).
If Wecker's speech is, as plaintiffs allege, defamatory, then it is not protected by the First

Amendment. United States v. Alvarez, 617 F.3d 1198, 1207 (9th Cir. 2010). But at this stage, the
question is not whether the First Amendment protects Wecker's speech "or even whether it probably
does." 1\1cDermott v. Ampersand Publ'g, LLC, 593 F.3d 950, 957 (9th Cir. 2010). So long as there
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is "at least some risk that constitutionally protected speech will be enjoined," preliminaty relief may
be awarded only on a "particularly strong showing" of both likely success on the merits and of
irreparable harm. Id. at 957-58. In view of the importance of free speech, Wecker must be given
an opportunity to respond before I can detetmine whether plaintiffs have met this demanding
standard.
Finally, regai·ding the third request for relief, plaintiffs have not shown irreparable harm.
Plaintiffs request that Wecker be enjoined from selling, using, or destroying certain property in his
possession. But they have not explained why money damages would be inadequate to compensate
them for any loss in connection with that property. See eBay Inc. v. MercExchange, LLC, 547 U.S.
388, 391 (2006).

CONCLUSION
Plaintiffs' Application for a Temporaty Restraining Order and Motion for an Order to Show
Cause Why a Preliminaty Injunction Should Not Issue (doc. 6) is DENIED. At plaintiffs' request,
the Comt will entettain a motion for a preliminaty injunction after defendants have been served with
notice of this lawsuit. 1

IT IS SO ORDERED.

··'/'/1'

Dated this

.!i_ day of Januaiy 2017.

(L,#rlL0

Ann Aiken
United States District Judge

1

If plaintiffs file such a motion, they are free to request expedited consideration pmsuant

to L.R. 7-l(g).
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