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River Services Co. LLC v. Peer

United States District Court, E.D. Louisiana

April 20, 2017

RIVER SERVICES CO. LLC ET AL.
v.
STEPHEN PEER ET AL.

         SECTION: “H” (1)

          ORDER AND REASONS

          JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiffs Motion for Preliminary Injunction (Doc. 2). For the following reasons, the Motion is GRANTED.

         BACKGROUND

         On March 30, 2017, Plaintiffs River Services Co. LLC, Budwine & Associates, LLC, Neptune Diving, LLC, and Natures Escape, LLC moved for a temporary restraining order against Defendants Stephen Peer and Peer Partners Interactive, LLC. Plaintiffs allege that Defendants, their former website support company and its owner, have refused to turn over control of certain domain names, websites, social media accounts, and email services associated with Plaintiffs (collectively, “websites”) after Plaintiffs decided to terminate Defendants' services. Defendants purportedly claimed that they are owed an additional amount for their services and refused to turn over the information required to transfer control of the websites until such was paid. Defendants also threatened to terminate Plaintiffs' website services on March 31, 2017 at midnight.

         On March 31, this Court entered a temporary restraining order prohibiting Defendants from changing, terminating, or otherwise interfering with the service of Plaintiffs' websites. A preliminary injunction hearing was held on April 19 during which Plaintiffs sought an order requiring Defendants to transfer control over its websites and take all necessary actions required to effectuate such a transfer without interruption to Plaintiffs' services.

         At the preliminary injunction hearing, however, it was revealed to the Court that Defendants have not yet been served. Plaintiffs contend that service was attempted on Defendants' known addresses on three different occasions to no avail. They also contend that this Court's orders were emailed and texted to Defendants both by Plaintiffs and by the Clerk of Court. Plaintiffs argue that Defendants have received adequate notice of their motion for preliminary injunction and the hearing date and have chosen not to respond or participate. Plaintiffs contend that despite the lack of service they are entitled to a preliminary injunction either because (1) adequate notice was received, or (2) the Anticybersquatting Consumer Protection Act authorizes an in rem civil action against a domain name when a defendant cannot be found. Because this Court ultimately holds that Defendants received actual notice, it need not address Plaintiffs' second argument.

         LEGAL STANDARD

         An applicant for preliminary injunctive relief must show: (1) a substantial likelihood that he will prevail on the merits; (2) a substantial threat that he will suffer irreparable harm if the injunction is not granted; (3) his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin; and (4) granting the preliminary injunction will not disserve the public interest.[1] A preliminary injunction is an extraordinary remedy.[2] Accordingly, a preliminary injunction should only be granted when the party seeking it has clearly carried the burden of persuasion on all four requirements.[3] In the end, a preliminary injunction is treated as an exception rather than the rule.[4]

         LAW AND ANALYSIS

         A. Notice Required for Issuance of Preliminary Injunction

         Federal Rule of Civil Procedure 65(a) requires that “[t]he court may issue a preliminary injunction only on notice to the adverse party.” Plaintiffs argue that “notice” does not require service of process. This Court agrees. “Rule 65(a) does not specify the particular type of notice required in order properly to bring defendants in an injunction proceeding before the trial court.”[5] The Fifth Circuit has held that “[t]he Rule's notice requirement necessarily requires that the party opposing the preliminary injunction has the opportunity to be heard and to present evidence.”[6] “The sufficiency of the written and actual notice is a matter for the trial court's discretion.”[7]

         Plaintiffs present evidence showing that Defendants received actual notice of the Complaint, Temporary Restraining Order, Motion for Preliminary Injunction, and hearing date. Plaintiffs show that as recently as March 30, 2017, Defendants used the email address stevepeer@peerpartners.com to communicate with Plaintiffs. Plaintiffs sent copies of its pleadings and the orders of the Court to this address from March 30 to April 5. Counsel for Plaintiffs received notification that his emails were received. On April 4, 2017, the Clerk of Court also used this email address to provide Defendants with notice of this Court's order setting a preliminary injunction hearing.

         Plaintiffs also show that they have attempted to call and text Defendants to no avail. Plaintiffs show that while Defendant failed to respond to a picture of the temporary restraining order that was texted to him, he ...


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