Thursday, September 6, 2018

Does The Labor Day Holiday's Mattress Sale Weekend Warrant a Temporary Restraining Order?

No.

The owner of the TEMPUR-PEDIC bedding brand ("Plaintiff") has sued a number of defendants, including a former retailer as well as the owner of the THERAPEDIC bedding brand.  Through that lawsuit, Plaintiff seeks to enjoin sales of the THERAPEDIC bedding.

To that end, on August 28, 2018, the Tuesday before the labor day holiday, Plaintiff filed suit.   Along with its complaint, Plaintiff also filed a motion for a temporary restraining order, as well as a motion for a preliminary injunction.  The next day, the Court denied the motion for TRO for failure to comply with Fed. R. Civ. P. 65(b)(1)(B)'s obligation that the filing lawyer certify what efforts she has made to give notice to the defending party, and why notice should not be required.  Notably, the Court also referred the motion for preliminary injunction the magistrate judge to conduct an evidentiary hearing and issue a report and recommendation.

After its motion was denied, Plaintiff's general counsel emailed the retailer defendant's general counsel demanding defendant cease sales, and provided a copy of the motion for TRO as well as the Court's order denying it.  Plaintiff's letter gave defendant one day to comply.  Defendant did not respond.

Plaintiff next renewed its motion for TRO on the evening of August 30, 2018 (the Thursday before the labor day holiday).  Plaintiff included a copy of its letter to the defendant in an attempt to satisfy Fed. R. Civ. P. 65(b)(1)(B).  The next day, Friday, around 11:50am Defendant's counsel contacted the Court and indicated that it wanted to oppose Plaintiff's motion for TRO.  The Court gave defendant until 3pm that day to file its response, which defendant did.

Plaintiff's argument for a TRO was based, in part, on the labor day sales weekend being "one of the bedding industry's biggest sales weekends."  Permitting defendant to sell the allegedly infringing products through this weekend would result in "significant irreparable harm to [Plaintiff's] brand and goodwill."  In response, defendant explained that its limited sales in a single test market, as well as its long standing trademark rights -- predating Plaintiff's trademark rights -- cautioned against the extraordinary remedy of an ex parte temporary restraining order.   The Court agreed with defendant:
The Court is mindful that “[a]n ex parte temporary restraining order is an extreme remedy to be used only with the utmost caution.” Levine v. Comcoa Ltd., 70 F.3d 1191, 1194 (11th Cir. 1995). Given the contested nature of the allegations underpinning Plaintiffs’ argument for a temporary restraining order, as well as Mattress Firm’s request that it be given an opportunity to respond fully before any injunctive relief is granted, the Court denies the Renewed Motion for Temporary Restraining Order. The Court finds that Plaintiffs have not carried their burden for the issuance of a temporary restraining order pursuant to Federal Rule of Civil Procedure 65 and Local Rule 4.05.
While absent from the Court's order, defendant also explained another interesting angle in its responsive brief.  Apparently, the parties have been engaged in separate litigations in Texas state and federal court, where the Texas state litigation is due to begin trial later this month.  According to defendant, Plaintiff has filed a number of motions seeking preliminary injunctions against defendant.  And defendant notes that the Texas state court denied a request for a temporary restraining order against defendant more than a year ago. 

Renewed motion for temporary restraining order, denied.
Tempur-Pedic North America, LLC v. Mattress Firm, Inc., Case No. 8:18-CV-2147-VMC-SPF (M.D. Fla. Aug. 31, 2018) (J. Covington)

Monday, August 27, 2018

Are Fees Recoverable Automatically When You Make a "Good" Offer of Judgement?

Nope.  The party seeking fees pursuant to a rejected Rule 68 Offer of Judgment still has the burden of showing a proper offer was made, was served, and was not accepted.

After what appears to have been 3+ years of contentious copyright infringement litigation, Plaintiffs were awarded $1,015.20 in damages against Defendants.  Plaintiffs owned copyrights in certain artwork, and Defendants had used this artwork in connection with certain "paint parties."  After this damage award, the parties engaged in various motion practice seeking sanctions and costs against each other.  The Court summarized the case's posture as follows:

Although this case presented fairly straightforward issues of copyright infringement, the case proceeded in anything but a straightforward manner. The nearly 400 docket entries in this case contain a plethora of motions for extensions of time and modification of deadlines, and other filings before the Court that can be best described as unprofessional and unnecessary squabbling between the parties. The tone of the parties’ papers was so poor, that early in the litigation the Magistrate Judge admonished the parties to “confine their presentations to facts and law that are relevant to the Court’s determination of the issues presented in the parties’ papers. Counsel shall refrain from caustic comments and characterizations of the motive of any party or counsel.” (Doc. 90, pp. 2–3). Unfortunately, this advice went unheeded, and the case dragged on for another three years.
After deciding neither sides' behavior rose to the level warranting sanctions, the Court addressed Defendants' argument that it was entitled to recover its fees and costs because Defendants had allegedly served an Offer of Judgment pursuant to Fed. R. Civ. P. 68 to settle the case for $2,500 -- more than Plaintiffs recovered at trial.  Problem is, Defendants did not  attach a copy of the offer of judgment that was purportedly served.

Instead, Defendants referenced an "Exhibit 1" in their briefing.  But Defendants did not attach an exhibit to the brief.  Instead, Defendants filed a brief that exceeded the page limits set by local rules and was admonished by the Court for doing so.  (The Court struck a few portions of the brief and refused to consider them in order to bring the brief's page count back into the 25-page limit set by the rules.)

The Court noted that it was not responsible for hunting for the evidence a moving party seeks to use to support its position:
The burden does not fall on this Court to ferret through the ballooned docket in this case to find evidence supporting Bloomington’s claims for fees and costs.  By failing to attach a Rule 68 offer to its Motion for fees, or to otherwise direct the Court where to find the document in the record, Bloomington has not carried its burden of establishing it is entitled to fees under Rule 68. 
Notwithstanding this admonition, the Court did search through the various docket entries and find something labeled "offer of judgment."  But there was not sufficient evidence showing such a document was served in accordance with the rules.   As such, the request for fees pursuant to Rule 68 were denied.

The Court then went through an analysis of Plaintiffs' request for recoverable costs, and awarded $4,482.95 as recoverable costs.

Motions for sanctions, denied.  Motion for fees, denied.  Motion for taxation of costs, granted.

Duncanson v Bloomington, Case No. 6:14-cv-704-PGB-KRS (M.D. Fla. Aug. 23, 2018) (J. Byron)

Monday, August 6, 2018

Are "Nationwide" Sales on Amazon Sufficient to Show Injury in M.D.Fla. for Venue Purposes?

Yes.

Thursday, LLC and Klhip, Inc. are both retailers that use Amazon to sell nail clippers online.  Klhip filed a number of claims with Amazon about Thursday.  In response, Amazon would take Thursday down and investigate.  Each time, Klhip's allegations have been found baseless (and Thursday's Amazon presence has been restored). 

Thursday, a Florida corporation located in Clearwater, sued Klhip for unfair competition, tortious interference, and violations of Florida's Deceptive and Unfair Trade Practices Act (FDUPTA) (among other claims).  Klhip, whose CEO lives in Idaho, sought to transfer the case there pursuant to either 28 U.S.C. 1391(b) (arguing that venue in M.D. Fla. was entirely improper) or 28 U.S.C. 1404(b) (arguing that it would be more convenient to litigate in Idaho).

Concerning the propriety of venue (28 U.S.C. 1391(b)), the Court quickly disposed of Klhip's challenge.  Thursday notes that it sells thousands of its nail clippers in this district, and Klhip's statements about Thursday (to Amazon) have hurt Thursday in this district, thus supporting jurisdiction  The Court agreed.

Concerning transfer for convenience of the parties, the Court rejected Klhip's argument that Idaho would be more convenient.  The analysis followed the typical analysis in a 1404 decision, but notably noticed the importance of the FDUPTA claim, explaining that: "[a] district judge in Florida indisputably has the advantage in an action based on Florida law and is most adept at applying Florida law.  As a result [familiarity with the governing law] distinctly disfavors transfer."

Motion to transfer, denied.
Thursday, LLC v. Klhip, Inc., Case No. 8:17-cv-1587-T-36AEP (M.D. Fla. July 11, 2018) (J. Honeywell)

Monday, July 30, 2018

Is it a good idea to ignore the Court's orders?

No.

Taser International, Inc. sued Phazzer Electronics, Inc. for patent infringement.  The discovery history appears tortured.  Taser pursued a number of motions to compel discovery responses.  Phazzer produced some documents (and apparently no emails), but the documents conflicted with representations Phazzer had made about its corporate structure and relationships with third parties. 

Then came the attempts to schedule depositions of "the handful of critical witnesses associated with Phazzer."  Apparently these critical witnesses for this closely-held company "are represented to be on vacation, out of the country, in surgery, or convalescing."  Taser had been attempting to schedule these depositions for 5 months.

With a Technology Tutorial scheduled in court, the Court ordered the parties and their counsel to attend in person, and cautioned that failure to do so could result in sanctions (including default judgment).  The day the Court entered that order, Phazzer's counsel filed a motion to withdraw.  That same day, the Court denied the motion to withdraw, and specifically ordered counsel to continue to represent Phazzer, notwithstanding counsel's representation of "irreconcilable differences."   The next day, Phazzer's counsel filed a "Notice of Termination of Legal Representation."   The Court struck that notice the same day because "because it is not a motion or a filing that is otherwise authorized by the Federal Rules of Civil Procedure or this Court’s Local Rules."

Phazzer's corporate representative did not attend the Technology Tutorial, failed to attend the corporate deposition of Phazzer, and a number of other Phazzer witnesses did not attend their court ordered depositions. 

The court then set a hearing on Phazzer's counsel's renewed motion to withdraw, specifically ordering a representative of Phazzer to attend.  No corporate representative attended.  Denying Phazzer's motion to stay the case, the Magistrate Judge observed: "it appears that Phazzer, with the assistance of its counsel, is attempting in bad faith to further delay this litigation."

In light of this abusive practice, the Court granted Taser's request for sanctions, and imposed the following relief:

  • Striking of Phazzer's motion to dismiss;
  • default entered in favor of Taser and against Phazzer on all claims;
  • compensatory damages;
  • treble damages for "Defendant's willful infringement" and "willful false advertisement";
  • attorneys' fees and costs; and
  • a permanent injunction.

Notably, while the Court could not name the third-party manufacturers in the injunction (for due process concerns), the Court did note: "it is clear that nonparties who assist the enjoined party in violating the injunction may be held in contempt by this Court."

The injunction should be helpful with ceasing importation of these infringing devices (electroshock cartridges).  Whether Taser will ever see any money from this judgment is another question entirely.  Moral of the story, Court orders are not something to be ignored.

Motion for Sanctions, granted.
Taser International, Inc. v. Phazzer Electronics, Inc., Case No. 6:16-cv-366-Orl-40KRS (M.D. Fla. July 21, 2018) (J. Byron)
 

Tuesday, July 10, 2018

Request for 2 Day Extension To Oppose Summary Judgment Motion?

Denied.  Ouch.

Commodores Entertainment Corporation has sued Thomas McClary, a former Commodores band member, for various trademark claims.  Commodores sought summary judgment.  Procedurally, McClary's attorney requested a first extension of 8 days for McClary to respond to the dispositive summary judgment motion.  The Commodores did not oppose the request and the Court granted it.

During that 8-day period, McClary's counsel attended a hearing in California state court in San Diego.  During that hearing, the California state court set a case for jury trial where McClary's counsel is lead trial.  That jury trial was set to begin on July 6 - the day after McClary's summary judgment response was due.

On the day of the summary judgment response deadline (July 5), McClary's counsel sought a 2-day extension of time to respond to the summary judgment motion.   Again, the Commodores did not oppose the request.    The next day (after the deadline has passed), the Court denied the motion with the following docket entry:
ENDORSED ORDER denying 415 Motion. Counsel has not demonstrated good cause for the requested second extension. Defendants have other counsel of record who could have assisted. Signed by Judge Roy B. Dalton, Jr. on 7/6/2018. (ZRR) (Entered: 07/06/2018)
Ouch.  Later that day, McClary submitted its summary judgment response brief.  And a few days later, McClary filed an unopposed motion requesting the brief be accepted as timely.  The Court has not yet ruled on that request.

As a practice pointer, it is difficult for the Courts to rule on requested extensions on the day of a particular deadline, and I have not studied the history of this case to see how well it has progressed.  But I presume the merits of the case will get resolved.

*** Update 7/10/2018 ***
The Court resolved McClary's request to accept the summary judgment
ENDORSED ORDER granting in part and denying in part 418 Motion Relief From Order, And To Accept Opposition To Motion For Summary Judgment As Timely Filed. The Response in Opposition will be considered as timely filed. In all other respects the motion is denied. Signed by Judge Roy B. Dalton, Jr. on 7/10/2018. (Dalton, Jr., Roy) (Entered: 07/10/2018)

Commodores Entertainment Corporation v McClary, Case No. 6:14-cv-01335-RBD-GJK (M.D. Fla. July 6, 2018) (J. Dalton, Jr.)