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ICF Technology, Inc. v. Google, Inc.

United States District Court, Ninth Circuit

December 20, 2013

ICF TECHNOLOGY, INC., Plaintiff,
v.
GOOGLE, INC., Defendant.

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

JAMES L. ROBART, District Judge.

Before the court is Plaintiff ICF Technology, Inc.'s ("ICF") motion for a temporary restraining order ("TRO"). (Mot. (Dkt. # 15).) ICF is a company that hosts websites. (Am. Compl. (Dkt. # 18) ¶ 4.) ICF claims that Defendant Google, Inc. ("Google"), a multinational corporation that controls the world's most-used internet search engine ( id. ¶ 5), is interfering with ICF's business relations by restricting access to its customers' websites ( id. ¶¶ 11.1-12.6). ICF asks the court to order Google to cease these actions immediately. ( See Mot.) Google argues that a TRO is not warranted at this time. The court agrees with Google, concluding that a TRO should not issue because ICF has not demonstrated a likelihood of success on the merits of its claims, or indeed even serious questions going to the merits of its claims.

I. BACKGROUND

ICF is a "web host" for several thousand subscription websites. (Am. Compl. ¶ 4.) ICF uses hard drive space and bandwidth on its servers to host websites, thus allowing companies to offer services on the internet without having to invest in the hosting technology and infrastructure themselves. ( Id. ) The websites involved in this case are pornography websites hosted by ICF. (Engrav Decl. (Dkt. # 1-4) Ex. A at 7-31.) They include sites such as "www.hotxxx.com, " "www.lotzawebcams.com, " "cams.youjizzpremium.com, " and hundreds more. ( Id. )

Google recently took adverse action against these websites. (Am. Compl. ¶ 6.) Google notified ICF and its clients that the websites in question violate Google's "Webmaster or Quality Guidelines." ( Id. ) Specifically, Google warned the sites not to engage in "thin content, " i.e., providing internet content that has little or no value to endusers. ( Id. ¶ 9.) Google applied a "manual spam action" to these pornography websites, which ICF alleges makes it "nearly impossible" for users to access the websites through the Google search engine or any Google-affiliated browser or operating system such as Chrome, Firefox, or Android. ( Id. ¶ 6-7.) Specifically, ICF alleges that if a user seeks to access the websites in question through a Google-affiliated platform, the user is directed not to the requested website, but to links containing information on how to hack into that website without a subscription. ( Id. )

ICF sued Google. ICF claims Google tortiously interfered with a prospective advantage, business expectancy, or contractual relation of ICF by limiting access to its clients' websites. ( Id. ¶¶ 11.1-12.6.) ICF also alleges defamation and a claim under Washington's Consumer Protection Act ("CPA"), RCW chapter 19.86. ( Id. ¶ 13.) ICF claims that if Google is not ordered to cease and desist its "manual spam action" immediately, ICF will suffer irreparable harm. (Mot. at 3-4.) Accordingly, ICF moved for a TRO. ( See Mot.)

II. ANALYSIS

A. Legal Standard for Issuing a TRO

The standard for issuing a TRO is identical to the standard for issuing a preliminary injunction. Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F.Supp.2d 1320, 1323 (N.D. Cal. 1995). The court must consider (1) whether the plaintiff is likely to succeed on the merits; (2) whether the plaintiff is likely to suffer irreparable harm absent a TRO; (3) whether the balance of hardships tips in the plaintiff's favor, and (4) whether the injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

In the Ninth Circuit, courts also apply the so-called "serious questions" test. See Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011). The Ninth Circuit has held that the serious questions test is consistent with Winter and that courts may still apply that test. Id. at 1134 ("[T]he serious questions' version of the sliding scale test remains viable after the Supreme Court's decision in Winter. "). Thus, the Ninth Circuit has held that a district court may grant injunctive relief if there are serious questions going to the merits of the plaintiff's claims and the balance of hardships tips sharply towards the plaintiff, "so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Id. at 1134-35.

B. ICF Has Not Shown Likelihood of Success on the Merits

Neither of the above standards is met here because ICF has not shown likelihood of success on the merits of its claims, or indeed even serious questions going to the merits of its claims. The court applies well-settled principles governing preliminary injunctive relief. Preliminary injunctive relief is "customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits." Cf. Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). At the TRO stage, a "party is not required to prove his case in full..., " and "it is generally inappropriate for a federal court at the preliminary-injunction stage to give a final judgment on the merits." Id. A party seeking preliminary relief has the initial burden of proving likelihood of success on the merits. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1158 (9th Cir. 2007).

ICF has not met this initial burden. On each of ICF's claims, there is at least one element for which, at this stage, success seems unlikely.

This is most apparent with respect to ICF's tortious interference claims. To prove a claim for tortious interference with contractual relations or a business expectancy, a plaintiff must show: (1) the existence of a valid contractual relationship or business expectancy; (2) that defendants had knowledge of that relationship; (3) an intentional interference inducing or causing a breach or termination of the relationship or expectancy; (4) that defendants interfered for an improper purpose or used improper means; and (5) resulting damages. Commodore v. Univ. Mech. Contractors, Inc., 839 P.2d 314, 322 (Wash. 1992). ICF fails with respect to element (4)-improper purpose or improper means. ICF makes only a formulaic allegation of improper purpose: "Google's interference was for an improper purpose or made by improper means." (Am. Compl. ¶¶ 11.5, 12.5, 13.4.) In its briefing, ICF confirms that it does not know what Google's improper purpose might be: "Google's intent is a question of fact and as of yet Plaintiff does not know Google's intent behind the manual spam action." (ICF Suppl. Br. (Dkt. # 18) at 8.) This is insufficient to meet ICF's burden of showing that it is likely to succeed on its tortious interference claims. See Commodore, 839 P.2d at 322. ICF presents only ...


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