1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PTG, INC., No. 2:23-cv-00840-DAD-JDP 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S EX PARTE APPLICATION AND MOTION FOR A 14 REPTILIAN NATION EXPO, et al. TEMPORARY RESTRAINING ORDER 15 Defendants. (Doc. No. 4) 16 17 This matter is before the court on an ex parte application for a temporary restraining order 18 filed by plaintiff PTG, Inc. on May 12, 2023. (Doc. No. 4.) For the reasons explained below, that 19 application will be denied. 20 BACKGROUND 21 On May 4, 2023, plaintiff filed its complaint against defendants Reptilian Nation Expo 22 and Ryan Minardi, seeking to enjoin them from using any words or symbols that resemble 23 plaintiff’s trademark. (Doc. No. 1 at 18.) In its complaint, plaintiff asserts the following seven 24 causes of action: (1) a claim brought pursuant to 15 U.S.C. §§ 1114–1117 for trademark 25 infringement; (2) a claim brought pursuant to 15 U.S.C. § 1125(a) for federal unfair competition; 26 (3) a claim brought pursuant to 15 U.S.C. § 1125(c) for trademark dilution; (4) a claim brought 27 pursuant to California Business & Professions Code §§ 14245, 14247, and 14250 for dilution and 28 trademark infringement; (5) a claim brought pursuant to California Business & Professions Code 1 § 17200 for unfair competition; (6) a claim for unjust enrichment; and (7) a claim for conspiracy 2 to violate the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. 3 § 1962(c). (See id. at 11–14.) 4 In its complaint, plaintiff alleges as follows. Plaintiff has a registered trademark in the 5 mark “Sacramento Reptile Show,” and defendants have violated its trademark by using the mark 6 “Reptilian Nation Expo.” (Id. at ¶¶ 2–3.) According to plaintiff, the use of Reptilian Nation 7 Expo in offering products and services that are nearly identical or equivalent to those of plaintiff 8 creates a false impression that the two expos are somehow associated, affiliated, connected, 9 approved, authorized, or sponsored by plaintiff when, in fact, they are not. (Id. at ¶ 10.) On or 10 about November 8, 2021 and April 18, 2023, plaintiff issued cease and desist letters to 11 defendants. (Id. at ¶ 4.) Plaintiff alleges that defendants have nonetheless continued to willfully 12 and knowingly infringe, without legal justification, on plaintiff’s trademark rights. (Id. at ¶ 5.) 13 On May 12, 2023, plaintiff filed the pending ex parte application for a temporary 14 restraining order. (Doc. No. 4.) Plaintiff filed a declaration from its counsel in support of the 15 pending application, and in that declaration, plaintiff’s counsel states the following: “On May 10, 16 and May 11, 2023, my office called Defendant of Plaintiff’s intention to appear ex parte to obtain 17 a temporary restraining order against Defendants from using the same or similar trademark,” and 18 “I have not received any response from Defendant. Defendant has been actively avoiding 19 Plaintiff and Plaintiff’s counsel.” (Doc. No. 4-2 at ¶¶ 5, 6.) 20 Defendants have not yet appeared in this action, and although the summons was issued on 21 May 5, 2023, there has not been an executed summons filed on the docket of this case reflecting 22 that defendants have been served with the summons and complaint. 23 LEGAL STANDARD 24 The standard governing the issuing of a temporary restraining order is “substantially 25 identical” to the standard for issuing a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. 26 John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “The proper legal standard for 27 preliminary injunctive relief requires a party to demonstrate ‘that he is likely to succeed on the 28 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 1 balance of equities tips in his favor, and that an injunction is in the public interest.’” Stormans, 2 Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter v. Nat. Res. Def. Council, 3 Inc., 555 U.S. 7, 20 (2008)); see also Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th 4 Cir. 2011) (“After Winter, ‘plaintiffs must establish that irreparable harm is likely, not just 5 possible, in order to obtain a preliminary injunction.’”); Am. Trucking Ass’n, Inc. v. City of Los 6 Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). A plaintiff seeking a preliminary injunction must 7 make a showing on all four of these prongs. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 8 1135 (9th Cir. 2011). The Ninth Circuit has also held that “[a] preliminary injunction is 9 appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were 10 raised and the balance of hardships tips sharply in the plaintiff’s favor.” Id. at 1134–35 (citation 11 omitted). The party seeking the injunction bears the burden of proving these elements. Klein v. 12 City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009); see also Caribbean Marine Servs. Co. 13 v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (citation omitted) (“A plaintiff must do more than 14 merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate 15 immediate threatened injury as a prerequisite to preliminary injunctive relief.”). Finally, an 16 injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the 17 plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. 18 DISCUSSION 19 A. Procedural Issues 20 Before turning to the merits of plaintiff’s application for a temporary restraining order, the 21 court finds that denial of plaintiff’s application is appropriate on procedural grounds alone. 22 First, plaintiff has not articulated why it could not have sought the injunctive relief it now 23 seeks at an earlier date. Local Rule 231(b), which governs the timing of motions for temporary 24 restraining orders, states in full: 25 In considering a motion for a temporary restraining order, the Court will consider whether the applicant could have sought relief by 26 motion for preliminary injunction at an earlier date without the necessity for seeking last-minute relief by motion for temporary 27 restraining order. Should the Court find that the applicant unduly delayed in seeking injunctive relief, the Court may conclude that 28 the delay constitutes laches or contradicts the applicant’s 1 allegations of irreparable injury and may deny the motion solely on either ground. 2 3 L.R. 231(b). In its motion, plaintiff represents that it sent cease and desist letters to defendants on 4 November 8, 2021 and April 18, 2023. (Doc. No. 4-1 at 3.) Thus, by plaintiff’s own 5 representation, plaintiff learned of defendants’ alleged trademark infringement no later than 6 November 8, 2021.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PTG, INC., No. 2:23-cv-00840-DAD-JDP 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S EX PARTE APPLICATION AND MOTION FOR A 14 REPTILIAN NATION EXPO, et al. TEMPORARY RESTRAINING ORDER 15 Defendants. (Doc. No. 4) 16 17 This matter is before the court on an ex parte application for a temporary restraining order 18 filed by plaintiff PTG, Inc. on May 12, 2023. (Doc. No. 4.) For the reasons explained below, that 19 application will be denied. 20 BACKGROUND 21 On May 4, 2023, plaintiff filed its complaint against defendants Reptilian Nation Expo 22 and Ryan Minardi, seeking to enjoin them from using any words or symbols that resemble 23 plaintiff’s trademark. (Doc. No. 1 at 18.) In its complaint, plaintiff asserts the following seven 24 causes of action: (1) a claim brought pursuant to 15 U.S.C. §§ 1114–1117 for trademark 25 infringement; (2) a claim brought pursuant to 15 U.S.C. § 1125(a) for federal unfair competition; 26 (3) a claim brought pursuant to 15 U.S.C. § 1125(c) for trademark dilution; (4) a claim brought 27 pursuant to California Business & Professions Code §§ 14245, 14247, and 14250 for dilution and 28 trademark infringement; (5) a claim brought pursuant to California Business & Professions Code 1 § 17200 for unfair competition; (6) a claim for unjust enrichment; and (7) a claim for conspiracy 2 to violate the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. 3 § 1962(c). (See id. at 11–14.) 4 In its complaint, plaintiff alleges as follows. Plaintiff has a registered trademark in the 5 mark “Sacramento Reptile Show,” and defendants have violated its trademark by using the mark 6 “Reptilian Nation Expo.” (Id. at ¶¶ 2–3.) According to plaintiff, the use of Reptilian Nation 7 Expo in offering products and services that are nearly identical or equivalent to those of plaintiff 8 creates a false impression that the two expos are somehow associated, affiliated, connected, 9 approved, authorized, or sponsored by plaintiff when, in fact, they are not. (Id. at ¶ 10.) On or 10 about November 8, 2021 and April 18, 2023, plaintiff issued cease and desist letters to 11 defendants. (Id. at ¶ 4.) Plaintiff alleges that defendants have nonetheless continued to willfully 12 and knowingly infringe, without legal justification, on plaintiff’s trademark rights. (Id. at ¶ 5.) 13 On May 12, 2023, plaintiff filed the pending ex parte application for a temporary 14 restraining order. (Doc. No. 4.) Plaintiff filed a declaration from its counsel in support of the 15 pending application, and in that declaration, plaintiff’s counsel states the following: “On May 10, 16 and May 11, 2023, my office called Defendant of Plaintiff’s intention to appear ex parte to obtain 17 a temporary restraining order against Defendants from using the same or similar trademark,” and 18 “I have not received any response from Defendant. Defendant has been actively avoiding 19 Plaintiff and Plaintiff’s counsel.” (Doc. No. 4-2 at ¶¶ 5, 6.) 20 Defendants have not yet appeared in this action, and although the summons was issued on 21 May 5, 2023, there has not been an executed summons filed on the docket of this case reflecting 22 that defendants have been served with the summons and complaint. 23 LEGAL STANDARD 24 The standard governing the issuing of a temporary restraining order is “substantially 25 identical” to the standard for issuing a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. 26 John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “The proper legal standard for 27 preliminary injunctive relief requires a party to demonstrate ‘that he is likely to succeed on the 28 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 1 balance of equities tips in his favor, and that an injunction is in the public interest.’” Stormans, 2 Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter v. Nat. Res. Def. Council, 3 Inc., 555 U.S. 7, 20 (2008)); see also Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th 4 Cir. 2011) (“After Winter, ‘plaintiffs must establish that irreparable harm is likely, not just 5 possible, in order to obtain a preliminary injunction.’”); Am. Trucking Ass’n, Inc. v. City of Los 6 Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). A plaintiff seeking a preliminary injunction must 7 make a showing on all four of these prongs. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 8 1135 (9th Cir. 2011). The Ninth Circuit has also held that “[a] preliminary injunction is 9 appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were 10 raised and the balance of hardships tips sharply in the plaintiff’s favor.” Id. at 1134–35 (citation 11 omitted). The party seeking the injunction bears the burden of proving these elements. Klein v. 12 City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009); see also Caribbean Marine Servs. Co. 13 v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (citation omitted) (“A plaintiff must do more than 14 merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate 15 immediate threatened injury as a prerequisite to preliminary injunctive relief.”). Finally, an 16 injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the 17 plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. 18 DISCUSSION 19 A. Procedural Issues 20 Before turning to the merits of plaintiff’s application for a temporary restraining order, the 21 court finds that denial of plaintiff’s application is appropriate on procedural grounds alone. 22 First, plaintiff has not articulated why it could not have sought the injunctive relief it now 23 seeks at an earlier date. Local Rule 231(b), which governs the timing of motions for temporary 24 restraining orders, states in full: 25 In considering a motion for a temporary restraining order, the Court will consider whether the applicant could have sought relief by 26 motion for preliminary injunction at an earlier date without the necessity for seeking last-minute relief by motion for temporary 27 restraining order. Should the Court find that the applicant unduly delayed in seeking injunctive relief, the Court may conclude that 28 the delay constitutes laches or contradicts the applicant’s 1 allegations of irreparable injury and may deny the motion solely on either ground. 2 3 L.R. 231(b). In its motion, plaintiff represents that it sent cease and desist letters to defendants on 4 November 8, 2021 and April 18, 2023. (Doc. No. 4-1 at 3.) Thus, by plaintiff’s own 5 representation, plaintiff learned of defendants’ alleged trademark infringement no later than 6 November 8, 2021. However, plaintiff offers no explanation for its delay in seeking a temporary 7 restraining order for over a year and a half thereafter, and plaintiff has made no showing to 8 suggest that it could not “have sought relief by motion for preliminary injunction at an earlier date 9 without the necessity for seeking last-minute relief by motion for temporary restraining order.” 10 L.R. 231(b); see also Occupy Sacramento v. City of Sacramento, 2:11-cv-02873-MCE, 2011 WL 11 5374748, at *4 (E.D. Cal. Nov.4, 2011) (denying an application for a temporary restraining order 12 due to twenty-five-day delay in seeking that relief); Farmers Ins. Exch. v. Steele Ins. Agency, Inc., 13 No. 2:13-cv-00784-MCE, 2013 WL 1819988, at *7 (E.D. Cal. Apr. 30, 2013) (denying an 14 application for a temporary restraining order due to a six-month delay in seeking that relief). 15 Plaintiff’s failure to seek injunctive relief for over one year and a half contradicts its claim that it 16 will suffer irreparable harm, which is imminent in nature, if the requested temporary restraining 17 order does not issue. Under the circumstances of this case, the court finds that plaintiff’s 18 unexplained delay of over one year and six months in seeking emergency relief constitutes an 19 “undue delay” under Local Rule 231(b). 20 The court also notes that plaintiff has not complied with Local Rule 231(c), which 21 requires that a motion for a temporary restraining order include “a proposed temporary restraining 22 order with a provision for a bond” and “a proposed order with blanks for fixing the time and date 23 for hearing a motion for preliminary injunction, the date for the filing of responsive papers, the 24 amount of the bond, if any, and the date and hour of issuance.” L.R. 231(c)(6)–(7). Plaintiff has 25 not met either of these requirements. This failure, on its own, may not have led the court to deny 26 plaintiff’s motion for a temporary restraining order, but when combined with the other 27 deficiencies of plaintiff’s pending motion, it provides a further basis for denial. 28 ///// 1 B. Substantive Issues 2 Finally, the court concludes that the plaintiff has failed to meet its burden under the 3 Winter standard. Plaintiff’s motion for a temporary restraining order fails to demonstrate 4 satisfaction of even the first factor—its likelihood of success on the merits. In its pending 5 motion, plaintiff provides only a cursory argument as to why it is likely to succeed on the merits 6 of this action. Specifically, plaintiff simply offers the following: 7 Plaintiff is entitled to relief if it appears from the complaint that she is entitled to the relief demanded. Code Civ. Proc. § 526(a). Here, 8 by all appearances, Plaintiff is entitled to relief. 9 Plaintiff is likely to prevail on Trademark Infringement claims as Defendants are impermissibly using the same or similar trademark 10 to market their business. Defendants are aware of this and have been on notice of the same. The effects of any damage to 11 Plaintiff’s reputation could be catastrophic not only to the brand that it built over nearly thirty years but also to its aspiration of 12 expanding its business nationwide. It is unfair and unjust to allow Defendants to retain control over the same or similar trademark via 13 false representations and unauthorized use, which would potentially damage Plaintiff’s reputation permanently. Plaintiff has a high 14 probability of success on its claims and thus a temporary restraining order and preliminary injunction are appropriate. 15 16 (Doc. No. 4-1 at 6.) These conclusory statements are clearly insufficient to support the issuance 17 of a temporary restraining order. Plaintiff omits any reference to the relevant law or elements of 18 its seven causes of action, let alone why it is likely to succeed on the merits of those claims. 19 Temporary injunctive relief will not be granted “unless the movant, by a clear showing, carries 20 the burden of persuasion” of showing a likelihood of success on the merits. Mazurek v. 21 Armstrong, 520 U.S. 968, 972 (1997). Because plaintiff’s arguments are devoid of the factual 22 and legal analysis necessary to establish its likelihood of success on the merits, plaintiff has 23 clearly not met its burden. Accordingly, plaintiff’s application for a temporary restraining order 24 will be denied.1 25
1 Should it determine it is appropriate to do so, plaintiff may file a properly noticed motion for 26 preliminary injunctive relief. The court notes, however, that plaintiff must provide more than 27 conclusory assertions to carry its burden of demonstrating that preliminary injunctive relief is warranted, and a simple repackaging of its ex parte application for a temporary restraining order 28 will be plainly insufficient. 1 CONCLUSION 2 For the reasons explained above, plaintiff's ex parte application for a temporary 3 | restraining order (Doc. No. 4) is denied. 4 IT IS SO ORDERED. > | Dated: _May 22, 2023 Dal A. 2, el 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28