United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION FOR A TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND DENYING
DEFENDANT'S ADMINISTRATIVE MOTION TO FILE UNDER
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE
and Counterclaimant Wine Marketing Group, LLC, also known as
Wines ‘Til Sold Out (“WTSO”) has moved for
a temporary restraining order (“TRO”) and a
preliminary injunction to enjoin Plaintiff and
Counter-Defendant Johndrow Vineyards, LLC
(“Plaintiff”) “from communicating, by any
means, to third-parties regarding or related to WTSO
(including its principals, employees, agents), WTSO's
business practices, or any facts or matters related the
transaction and dispute presently before this Court.”
Mot. for TRO and Prelim. Inj. (Dkt. 31). Defendant also filed
a Motion to File Documents Under Seal in Support of its
Motion for Temporary Restraining Order and Preliminary
Injunction (Dkt. 32). With the leave of the Court, Scheduling
Order (Dkt. 33), Plaintiff has opposed both motions (Dkts.
35, 36). The Court now DENIES both motions.
case arises out of a dispute between a winemaker, Plaintiff,
and IWLC, a wine distributor, and WTSO, a “flash sale
site” which “offers wine to retail customers at
discount prices.” Compl. ¶¶ 8, 10. The
Complaint alleges that Defendants contracted to purchase over
10, 000 bottles of wine from Plaintiff, but that Defendants
failed to pay for some of that wine. Id. ¶
11-19. Plaintiffs bring claims for breach of contract and
conversion. Id. ¶¶ 20-32.
instant motions, WTSO alleges that, since this action has
been filed, Plaintiff sent emails to other people working in
the wine business “disparaging WTSO with the intent of
harming WTSO's business reputation and/or harming its
business relations with vendor.” Mem. of Points and
Authorities in Support of Mot. for TRO and Prelim. Inj. At 3
(Dkt. 31-1). These emails, Plaintiff now contends, were false
and defamatory and amount to tortious interference with
WTSO's relationship with vendors that Plaintiff
contacted. Id. at 5. WTSO thus seeks an order
enjoining Plaintiff or its “servants, employees and
attorneys and all those in active concert or participation
with [WTSO]” from “communicating, by any means,
to third-parties regarding or related to WTSO (including its
principals, employees, agents), WTSO's business
practices, or any facts or matters related the transaction
and dispute presently before this court.” Mot. for a
TRO and Prelim. Inj. Prop. Order (Dkt. 31-6).
MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY
plaintiff seeking a preliminary injunction 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.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008). The same standard applies to motions for TROs.
Stuhlbarg Int'l Sales Co. v. John D. Brush &
Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001).
the injunction sought is, as here, an injunction against
certain types of speech, see Mot. for a TRO and
Prelim. Inj. Prop. Order, the Ninth Circuit has further
cautioned that “an injunction issued ‘before an
adequate determination that it is unprotected by the First
Amendment' presents the ‘special vice of a prior
restraint.'” Overstreet v. United Bhd. of
Carpenters & Joiners of Am., Local Union No. 1506,
409 F.3d 1199, 1218 (9th Cir. 2005) (quoting Pittsburgh
Press Co. v. Pittsburgh Comm'n on Human Relations,
413 U.S. 376, 390 (1973)). Further, a “‘heavy
presumption' exists against finding such prior restraints
constitutionally permissible.” Id. (citing
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70
fails on the first prong of the Winter test. WTSO
alleges that the emails that Plaintiff sent to the other wine
merchants “created interference” between WTSO and
the other wine merchants with which it works because, in
WTSO's view, those emails “included false factual
assertions that WTSO engages in improper or fraudulent
business practices, and insinuating/recommending that the
recipients of the e-mail avoid doing business with
WTSO.” Mem. of Points and Authorities at 5. This, WTSO
states, cause WTSO “irreparable harm” because, in
Johndrow's perfidious e-mail campaign was a concerted
effort to convince or dissuade wineries and distributors from
conducting business with WTSO. As a wine marketing company,
WTSO's business is founded on its relations with the
vendors that Johndrow targeted with its emails. Johndrow is
sending e-mails to WTSO-critical vendors, in a calculated,
unwarranted, and improper effort to paralyze WTSO's
ability to conduct business.
Id. at 7.
taking on face that this conclusory allegation is sufficient
as to Plaintiff's motivations, Plaintiff has failed to
show that it will suffer irreparable harm that would
necessitate a TRO. See Winter, 555 U.S. at 20. WTSO
merely asserts, without citation to any record evidence, that
Plaintiff was attempting to injure WTSO's business
interests. See Mem. of Points and Authorities at 7.
Even if true-and the Court takes no view on Plaintiff's
intent-that is a far cry from demonstrating that WTSO
actually suffered any injury, let alone an irreparable one.
Especially given the “heavy presumption” against
prior restraints on speech, see Sullivan, 372 U.S.
at 70, WTSO's unsupported statement that it suffered an
irreparable injury is wholly inadequate to satisfy the first
prong of Winter, 555 U.S. at 20.
WTSO has failed to show that it will suffer irreparable harm,
the Motion for a Temporary Restraining Order and Preliminary
Injunction is DENIED.
MOTION TO FILE ...