United States District Court, S.D. California
AMETEK CTS US, Inc. and AMETEK CTS GmbH, Plaintiffs,
Advanced Test Equipment Corp., Defendant.
ORDER DENYING PLAINTIFFS' MOTIO9N FOR PRELIMINARY
INJUNCTION AND A TEMPORARY RESTRAINING ORDER [DOC. NO.
MARILYNL. HUFF, DISTRICT JUDGE UNITED STATES DISTRICT COURT.
December 9, 2019, Plaintiffs AMETEK CTS US, Inc. and AMETEK
CTS GmbH (“Plaintiffs” or “AMETEK”)
filed a complaint alleging violations of the Lanham Act among
other state law causes of action. (Doc. No. 1.) Presently
before the Court is Plaintiffs' Motion for Preliminary
Injunction filed December 9, 2019. (Doc. No. 2.) The Court
held a telephonic hearing on the Motion for a Temporary
Restraining Order on December 18, 2019 at 10:30 am. Jason
White along with other representatives, appeared for the
Plaintiffs. John M. Billy made a special appearance to
request a continuance so that ATEC could obtain counsel for
the corporation. James P. Berg and Jamison Berg, nonlawyer
representatives for ATEC, also were telephonically present
for the hearing. At the hearing Mr. Berg represented to the
Court that “the press release with the allegedly false
statements at issue in the complaint had been taken down from
ATEC's website and that ATEC would not disseminate
similar statements.” (Doc. No. 19 at 2.) The Court
granted Defendant's request for a continuance and
continued the hearing on the Motion for a Preliminary
Injunction and Temporary Restraining Order to January 10,
2020 at 11am. On January 6, 2020, Defendant opposed the
motion. (Doc. No. 20.) On January 9, 2020, Plaintiffs
replied. (Doc. No. 21.) The Court held a hearing on the
motion on January 10, 2020. Jacon C. White appeared for
Plaintiffs and Jacob T. Spaid appeared for the Defendant. For
the following reasons the Court denies the motion for a
preliminary injunction and temporary restraining order
AMETEK CTS US, Inc. and AMETEK CTS GmbH (collectively,
“AMETEK”) seek a preliminary injunction and a
temporary restraining order against Defendant Advanced Test
Equipment Corp. (“ATEC”).
is a manufacturer of sophisticated electronic instruments in
the automotive, telecommunications, energy, aerospace, power,
research, medical and industrial markets. (Doc. No. 2, Ex. 2.
¶ 1.) AMETEK sells directly to consumers and also
distributes its products through commercial partners.
(Id. ¶ 4.) Defendant ATEC has been a
distributor of AMETEK's products. (Id.)
Specifically ATEC has been a purchaser of AMETEK's
TESTEQ, IFI, Milmega and EM Test lines of products for use in
rental pools. Id. AMETEK and ATEC have been doing
business in this manner for nearly 15 years with
approximately $17 million in sales between the two companies.
(Doc No. 20-4 at 2.)
September 7, 2019, AMETEK informed ATEC that it would have to
“decline the opportunity for non-warranty service
requests on behalf of ATEC going forward.” (Doc. No. 2,
Ex. 3.) Defendant responded negatively to this development.
(Id. at 4.) In a September 17, 2019 email, Jim Berg,
CEO of ATEC, wrote that it “is very clear that Ametek
is no longer going to support the many millions of dollars of
equipment that ATEC has purchased from them over the
years.” (Id.) The same day, Rick Powell,
Director of Sales for the Americas, wrote back to Mr. Berg,
informing him that AMETEK would “continue to repair
anything that is still under warranty.” (Id.)
December 4, 2019, Defendant issued a press release titled
“AMETEK CTS No Longer Calibrating or Repairing
Equipment After The Warranty Expires.” (Id. at
Ex. 1.) This press release was also simultaneously
disseminated over ATEC's LinkedIn, Facebook, and Twitter
accounts as well as Defendant's website and through
email. (Id.) The body of the press release stated
that “AMETEK CTS has notified them [ATEC] that they
would no longer be supporting their products after the
warranty period has expired.” (Id.) Following
the issuance of this press release, AMETEK began to receive
inquiries from its various customers and distributors about
whether AMETEK would continue to support its products after
the end of their warranty. (Doc. Nos. 10. Ex.7, 8, and 12.)
December 4, 2019, AMETEK, through its counsel, sent a letter
to Mr. Berg demanding that “ATEC immediately remove the
press release from its website, as well as all other
locations . . . .” (Id. Ex. 17.) Two days
later, on December 6, 2019, Mr. Berg responded indicating
that ATEC would deliver “an appropriate response to
your request” within 10 business days. (Id.
Ex. 18.) On December 9, 2019, ATEC offered to publish a
retraction, prepared by AMETEK, of the press release. (Doc.
No. 20 at 3.) Instead, later that same day, December 9, 2019,
AMETEK filed their complaint with this Court. (Doc. No. 1.)
December 18, 2019 the Court held a telephonic hearing on the
motion for a Temporary Restraining Order. At the hearing Mr.
Berg represented to the Court that “the press release
with the allegedly false statements at issue in the complaint
had been taken down from ATEC's website and that ATEC
would not disseminate similar statements” during the
course of this litigation. (Doc. No. 19 at 2.)
preliminary injunction is “an extraordinary remedy
never awarded as of right.” Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 24 (2008); see Earth
Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir.
2010) (“[P]laintiffs seeking a preliminary injunction
face a difficult task in proving that they are entitled to
this ‘extraordinary remedy.'”) (quoting
Winter, 555 U.S. at 24). It is “a device for
preserving the status quo and preventing the irreparable loss
of rights before judgment.” Sierra On-Line, Inc. v.
Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.
1984). “The grant or denial of a motion for a
preliminary injunction lies within the discretion of the
district court.” Johnson v. California State Bd. of
Accountancy, 72 F.3d 1427, 1429 (9th Cir. 1995).
Winter, the Supreme Court held that a 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, 555 U.S. at 20. The Ninth
Circuit balances these “Winter factors” using a
“sliding scale” approach, where “a stronger
showing of one element may offset a weaker showing of
another.” All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). However,
Winter “requires the plaintiff to make a
showing on all four prongs.” Id. at 1135.