United States District Court, Central District of California
ORDER RE: EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER
HONORABLE GARY ALLEN FEESS
INTRODUCTION & BACKGROUND
The Court is in receipt of Plaintiff NuScience Corp.’s (“NuScience” or “Plaintiff”) ex parte application for a Temporary Restraining Order (“TRO”) against Defendants Robert Henkel, and Michael Henkel (“Defendants” or “Henkels”). (Docket No. 239 [Application for TRO (“Mem.”)].) Originally, Plaintiff brought suit against Defendants alleging violations of NuScience’s Trademark and trade secret formula for CELLFOOD (“Formula”), an oxygen and nutrient supplement. (See Docket No. 7 [First Amended Complaint (“FAC”)].) The Court subsequently entered default judgment for Plaintiff. (Docket No. 32 [4/14/09 Judgment].) Later, this Court held Defendants in contempt of the 4/14/09 Judgment, in June 2012 (Docket No. 58 [6/15/12 Order] (holding Defendants in contempt of violating 4/14/09 Judgment)) and again in March 2014 (Docket No. 230 [3/31/14 Order] (same)). Despite the Court’s findings of contempt, Defendants have failed to comply with the Court’s order. (See Docket No. 237 [Declaration of Michael J. Saltz (“Saltz Decl.”) at Exs. 1-3 [Social Media Postings (“Postings”)] (among other things, threatening release of the entire Formula and releasing select ingredients of the Formula in violation of the Court’s order).) Plaintiff is now seeking a TRO to halt Defendants’ potentially ruinous imminent dissemination of the Formula. (See Mem.)
The Court finds that notice is not required here and that Plaintiff has established grounds for a TRO. Accordingly, the Court GRANTS, in part, Plaintiff’s ex parte application for a Temporary Restraining Order. As the Court believes the relief sought is too drastic at this time and thus DECLINES to issue bench warrants at this time, Plaintiff’s ex parte application is DENIED, in part. However, as this is essentially a contempt proceeding, the Defendants are ORDERED TO SHOW CAUSE why further sanctions, including issuance of bench warrants should not be ordered in this case. The response to the OSC is due by the close of business on November 18, 2014. The OSC will be heard at 9:30 a.m. on November 21, 2014. If Defendants fail to respond to or comply with this order, the Court WILL GRANT Plaintiff’s request in full and WILL ISSUE bench warrants for Defendants’ incarceration until such time as they comply with the Court’s order. The Court’s reasoning is set forth in detail below.
A. Legal Standards
1. Obtaining a Temporary Restraining Order
The standard for a temporary restraining order is identical to the standard for a preliminary injunction. Frontline Med. Assocs., Inc. v. Coventry Healthcare Workers Comp., Inc., 620 F.Supp.2d 1109, 1110 (C.D. Cal. 2009) (citing Lockheed Missile & Space Co. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D. Cal. 1995)). A plaintiff seeking preliminary relief must establish “ that he is likely to succeed on the merits,  that he is likely to suffer irreparable harm in the absence of preliminary relief,  that the balance of equities tips in his favor, and  that an injunction is in the public interest.” Doe v. Reed, 58 F.3d 671, 676 (9th Cir. 2009) (quoting Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008)). The elements of this test are “balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1049–50 (9th Cir. 2010). Accordingly, a court may grant temporary relief where a plaintiff demonstrates “that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff’s favor.” Id. at 1052 (internal quotations omitted).
2. The Notice Requirement
Rule 65(b) provides that:
The court may issue a temporary restraining order without written or oral notice to the adverse 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 ...