Texas Precious Metals, LLC v. United States Reserve, LLC
MEMORANDUM OPINION AND ORDER denying 2 MOTION for Temporary Restraining Order (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
UNITED STATES RESERVE, LLC D/B/A §
June 21, 2017
David J. Bradley, Clerk
TEXAS PRECIOUS METALS, LLC,
CIVIL ACTION NO. 6:17-CV-37
MEMORANDUM OPINION AND ORDER
On June 19, 2017, at 9:00 PM, Texas Precious Metals, (“TPM”) a private LLC
based in Shiner, Texas, filed a trademark infringement lawsuit in this Court against a
single defendant—US Reserve, LLC (“USR”), an Ohio-based LLC. Both TPM and USR
make and sell commemorative bars and coins. TPM alleges that USR has recently begun
making and selling a series of products that are deceptively similar to a series of products
that TPM makes, and for which TPM has a registered US trademark. Hours later, TPM
filed an Application for a Temporary Restraining Order, seeking an ex parte temporary
restraining order (“TRO”) from this Court. For the reasons set out below, TPM’s
application for an ex parte TRO is DENIED.
“To obtain a temporary restraining order or preliminary injunction, a plaintiff must
establish the following elements by a preponderance of the evidence: (1) there is a
substantial likelihood of success on the merits; (2) there is a substantial threat that
irreparable injury will result if the injunction is not granted; (3) the threatened injury
outweighs the threatened harm to the defendant; and (4) granting the preliminary
injunction will not disserve the public interest.” Khan v. Fort Bend Independent School
District, 561 F. Supp. 2d 760, 763 (S.D. Tex. 2008) (citing Karaha Bodas Co. v.
Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir.
The verification for the Application comes from the Chief Operating Officer of
TPM. His verification is one paragraph, and it simply states that he has read the
Complaint and Application for TRO and that “the facts stated in paragraphs 8 through 44
are within his personal knowledge and/or based upon information provided to him in the
performance of his duties and are true and correct to the best of his knowledge,
information, and belief.” Dkt. 2-2, pg. 1. However, the “facts stated in paragraphs 8
through 44” are themselves mainly allegations and legal conclusions, and they do not
show a substantial threat that irreparable injury will result if the injunction is not granted.
By the same token, the “facts stated in paragraphs 8 through 44” fail to discuss, with any
degree of particularity, whether the threatened injury to TPM outweighs the threatened
harm to the defendant, or whether granting the preliminary injunction will not disserve
the public interest. In other words, even if the Court were inclined at this stage to grant
the TRO, there is nothing in the Application upon which the Court could base a ruling in
favor of TPM, and there is no way for the Court to evaluate the appropriate amount of
security that TPM should post under Rule 65(c).
Even more fatal is the fact that there is no support for TPM’s request that the TRO
be issued ex parte, without notice to the Defendant. The Federal Rules of Civil Procedure
plainly state that a court may issue a temporary restraining order without notice to the
other 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). Further, the Court’s order must “describe the
injury and state why it is irreparable [and] state why the order was issued without
notice[.]” FED. R. CIV. P. 65(b)(2).
Other courts have voiced similar concerns and “skepticism” about similar requests
for ex parte TROs. As United States Judge Sim T. Lake recently stated, “A TRO is an
equitable remedy, and one who seeks equity must do equity, which in this instance
includes fulfilling one's obligation to communicate with adverse parties.” Camber
Energy, Inc., Plaintiff, v. Discover Growth Fund, & Fifth Third Securities, Inc.,
Defendants., CV H-17-1436, 2017 WL 1969682, at *1 (S.D. Tex. May 11, 2017) (Lake,
J.) (considering “the timing of the motion, the relationship between the parties, the threat
that Camber describes, and whether any alleged injury is irreparable,” and noting,
“Camber filed a fifty-page Petition supported by an affidavit signed on May 5, 2017.
These filings required time to prepare, yet there is no evidence that Camber attempted to
notify Defendants in an attempt to avert the alleged disaster.”); see also Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, 172 L.Ed. 2d 249 (2008) (noting,
“[i]njunctive relief [is] an extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.”).
Here, TPM has made no effort to comply with the requirements of Federal Rule
65(b)(1)(B). Nor is there any certificate of conference or service accompanying the
Application for a TRO, which might indicate to the Court that TPM is making good faith
efforts to comply with its obligations to do equity when seeking an extraordinary
Accordingly, TPM’s current application for an ex parte TRO is DENIED.
SIGNED this 21st day of June, 2017.
George C. Hanks Jr.
United States District Judge
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