United States District Court, N.D. California
The California Beach Co. LLC, Plaintiff,
Han Xian Du, Defendant.
ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING
ORDER; ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION RE: DKT.
GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE
The California Beach Co., LLC (“CBC”) has filed a
motion for a temporary restraining order and request for an
order to show cause and set a hearing on a preliminary
injunction to restrain defendant Han Xian Du from filing
copyright takedown notices with internet platforms against
CBC. (Dkt. No. 4.) The Court set a briefing schedule,
ordering that any response be filed by January 3, 2020, and
that any reply be filed by January 7, 2020. Du did not file
any response with the Court as to the motion. CBC filed a
reply updating the Court on the context of its request. (Dkt.
for temporary restraining orders are governed by the same
general standards that govern the issuance of a preliminary
injunction. See New Motor Vehicle Bd. v. Orrin W. Fox
Co., 434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg
lnt'l Sales Co., Inc. v. John D. Brush & Co.,
Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001).
Preliminary injunctive relief, whether in the form of a
temporary restraining order or a preliminary injunction, is
an “extraordinary and drastic remedy, ” that is
never awarded as of right. Munaf v. Geren, 553 U.S.
674, 689-690 (2008) (internal citations omitted). In order to
obtain such relief, plaintiffs must establish four factors:
(1) they are likely to succeed on the merits; (2) they are
likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in their
favor; and (4) an injunction is in the public interest.
Winter v. Natural Resources Defense Council. Inc.,
555 U.S. 7, 20 (2008).
respect to the success on the merits and balance of harms
factors, courts will permit a plaintiff making a strong
showing on one factor to offset a weaker showing on the
other, so long as all four factors are established.
Alliance for Wild Rockies v. Cottrell, 632 F.3d
1127, 1135 (9th Cir. 2011). In other words, “serious
questions going toward the merits and a hardship balance that
tips sharply towards the plaintiff 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.” Design Furnishings, Inc. v. Zen
Path, LLC, No. CIV. 2:10-CV-2765-WB, 2010 WL 5418893, at
*4 (E.D. Cal. Dec. 23, 2010) (quoting Alliance for Wild
Rockies, 622 F.3d at 1053).
Court, having duly considered CBC's Complaint, motion,
and the declarations and exhibits submitted therewith, hereby
makes the following findings of fact and conclusions of law:
Based on the limited record before the Court, CBC is likely
to succeed on the merits of its claim under 17 U.S.C. §
512(f) that Du has “knowingly materially
misrepresent[ed] under this section . . . that material or
activity is infringing” thereby damaging CBC “as
the result of a service provider” (here, Facebook, and
Instagram) “removing or disabling access to the
material or activity claimed to be infringing.” 2. CBC
has established a likelihood of irreparable harm if the
service providers (Facebook, and Instagram) continue to
comply with Du's takedown requests in the form of
permanently lost customers, reputational harm, and/or loss of
customer good will toward CBC.
balance of hardships favor entering this restraining order
because if this restraining order were not issued the impact
to CBC's business could be severe enough to impact
CBC's ability to continue as a business; whereas, if Du
is able to establish that, in fact, CBC has violated Du's
legitimate copyright interests, Du can obtain money damages.
the extent it is implicated, the public interest favors
entering this restraining order because the public has an
interest in avoiding the misuse of intellectual property laws
by market competitors to wrongfully harm competition.
on the foregoing, the Court Grants the motion for temporary
Du and all persons in active concert or participation with
Du, are temporarily restrained from taking down, based on any
alleged copyright infringement, from Facebook and Instagram,
or any other service provider's website, CBC's online
content or product line. Du is temporarily not permitted to
file any further takedown notices with Facebook, Instagram,
or any other service provider's website as to CBC's
online content or product line. Any current and operative
takedown notices in effect that were filed by Du as to CBC
are restrained, and are to be disregarded by the online
service provider. Accordingly, and specifically, Facebook
(Report #2576187715997707) and Instagram (Report
#1407615876061304) are directed to disregard Du's
takedown notice and to reinstate CBC's online content
during the period of this Order.
temporary restraint is effective immediately. The Court
determines that no security bond is necessary as contemplated
under Fed.R.Civ.P. 65(c). See Connecticut Gen. Life Ins.
Co. v. New Images of Beverly Hills, 321 F.3d 878, 882
(9th Cir. 2003) (“The district court is afforded wide
discretion in setting the amount of the bond, and the bond
amount may be zero if there is no evidence the party will
suffer damages from the injunction.”); Walls v.
Wells Fargo Bank, N.A., No. 17-CV-02199-HSG, 2017 WL
1478961, at *4 (N.D. Cal. Apr. 25, 2017) (“The district
court may dispense with the filing of a bond when it
concludes there is no realistic likelihood of harm to the
defendant from enjoining his or her conduct.”).
Ordered to serve Du in the same manner it served Du with the
motion, and file proof of same, within 24 hours of the
issuance of this Order. This Order will become permanent
effective Wednesday, January 22, 2020 unless: (a) an
opposition is received from Du by Wednesday, January 15,
2020, any response from CBC to an opposition from Du is due
no later than 9 a.m. January 21, 2020, and with a hearing to
be held as noted below; or (b) to the extent that CBC seeks
to change the scope of the injunction, CBC should file a
response by Monday, January 13, 2020 with any supporting
evidence. The Court will resolve the matter on the papers if
no objections are filed, or, if a hearing on the matter is
objections are filed or a hearing is requested, the hearing
will be held at 10:00 a.m. on Wednesday, January 22, 2020 in
Courtroom 1 of the United States Courthouse located at 1301
Clay Street in Oakland, California.
light of this Order, the hearing on the motion for temporary
restraining order scheduled for 10:00 a.m. on ...