The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ON PLAINTIFF'S EXPEDITED DISCOVERY MOTION FOR TEMPORARY RESTRAINING ORDER AND
On August 31, 2011, Plaintiff Acolyte Technologies Corporation filed a complaint for patent infringement and unfair competition against corporate Defendant Jeja International Corporation, Ltd. ("Jeja") and individual Defendants Evelyn Kim, Inho Kim, Choong Bin Lim, Sook Ja Lim, and Ceong Lim-doing business as La Bonita-collectively, "Individual Defendants." [Doc. No. 1.] Plaintiff is in the business of developing and designing innovative LED lighting products to adorn and lighten decor and floral arrangements. [Id. ¶¶17-18.] Plaintiff owns the two patents in suit-U.S. Patent No. D633,232 ("'232 Patent") and U.S. Patent No. D642,299 ("'299 Patent")-which teach an "ornamental design for lighting device." [Id. ¶¶27-28.] Plaintiff asserts Defendants are manufacturing, marketing, advertising, importing and selling lighting devices that infringe the '232 and '299 Patents.
On September 2, 2011, Plaintiff filed an ex parte application for a temporary restraining order ("TRO") and order to show cause why a preliminary injunction should not issue to enjoin Defendants' allegedly infringing conduct. [Doc. No. 4.] Plaintiff's ex parte application also requests expedited discovery to determine the identities of certain Doe Defendants whom Plaintiff believes are "responsible for a large shipment of infringing LED lighting devices scheduled to arrive in the U.S. in or around September 2011." [Id. ¶4.] On September 2, the Court issued a briefing schedule on Plaintiff's ex parte application; Defendants' opposition to Plaintiff's request for ex parte relief was due by September 7, and a hearing was set for September 9 at 8:00 a.m. Defendants did not file an opposition. On September 9, the Court was unexpectedly closed due to a widespread power outage in San Diego. Accordingly, the Court vacated the hearing on Plaintiff's ex parte application and took Plaintiff's unopposed motion under submission.*fn1 [Doc. No. 12.] For the reasons set forth herein, the Court GRANTS Plaintiff's request for a temporary restraining order to enjoin certain conduct by the named Defendants.
To prevail on a motion for temporary restraining order or to receive preliminary injunctive relief, the moving party bears the burden of demonstrating either: (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions as to success on the merits and irreparable injury along with a sharp tipping of the balance of hardships in favor of the moving party. These alternative standards are "not separate tests but the outer reaches of a single continuum." Int'l Jensen, Inc. v. Metrosound U.S.A., 4 F.3d 819, 822 (9th Cir. 1993).
"Because injunctive relief prior to trial is a harsh and extraordinary remedy, it is to be granted sparingly and only in cases where the issues are clear and well defined and the plaintiff has established a reasonable certainty of prevailing at trial." Watermark, Inc. v. United Stations, Inc., 219 U.S.P.Q. (BNA) 31, 32-33 (C.D. Cal. 1982) (citing Dymo Industries, Inc. v. Tapeprinter, Inc., 326 F.2d 141 (9th Cir. 1964)). "[P]laintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction." Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citing Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008)). Moreover, "on application for preliminary injunction the court is not bound to decide doubtful and difficult questions of law or disputed questions of fact." Dymo Industries, 326 F.2d at 143; see also Mayview Corp. v. Rodstein, 480 F.2d 714, 719 (9th Cir. 1973) (reversing grant of preliminary injunction based on existence of disputed factual issues).
Accordingly, at an "irreducible minimum," the moving party must demonstrate "a fair chance of success on the merits" or "questions . serious enough to require litigation." Sports Form, Inc. v. United Press Intern., Inc., 686 F.2d 750, 753 (9th Cir. 1982) (citations omitted). If the moving party fails to show any chance of success on the merits, a court need not determine whether there is potential injury or balance the hardships. Id. Serious questions going to the merits and a hardship balance that tips sharply towards the plaintiff, however, can support issuance of an injunction so long as the plaintiff also shows a likelihood of irreparable injury and that the injunction is in the public interest. Cottrell, 632 F.3d at 1131-32.
Plaintiff's pending motion requests two forms of relief: (1) an
injunction against Defendants, and (2) limited expedited discovery.
Plaintiff seeks to restrain and enjoin Defendants from making, using,
selling or offering for sale any infringing products, including the
following devices identified and sold by Defendant Jeja*fn2
on its website: (i) 9 led submersible; (ii) 9 led submersible
LD901_M; (iii) full color 9 led submersible; (iv) waterproof 9 led
lights for floral design; (v) 14 led submersible LD14_M; and (vi) sub-14. [Doc. No.
4-1.] Plaintiff avers that if its products are visually compared to
Defendants' infringing devices they are virtually identical to
Plaintiff's technology protected by the '232 and '299 Patents.
Plaintiff requests immediate injunctive relief because it was recently
informed by one of its customers that one or more unidentified Doe
Defendants are expecting a large shipment of infringing devices in
September 2011. Accordingly, in connection ...