United States District Court, W.D. Washington, Seattle
ORDER GRANTING WEYERHAEUSER'S MOTION FOR A
TEMPORARY RESTRAINING ORDER
L. ROBART UNITED STATES DISTRICT JUDGE
the court is Plaintiff Weyerhaeuser Company's
("Weyerhaeuser") motion for a temporary restraining
order ("TRO"). (Mot. (Dkt. # 4).) Weyerhaeuser
requests that the court enter a TRO precluding Defendants
Novae Syndicate 2007; Apollo Liability Consortium 9984; ANY
Casualty Consortium 9148; Scor UK Company Ltd.; Starstone
Syndicate 1301; Hiscox Syndicate 33; Star Underwriting Agents
Ltd.; and Lloyd's Syndicate CVS 1919 (collectively,
"TRO Defendants") from seeking or obtaining, in any
other forum, an injunction against Weyerhaeuser's instant
action. (Id. at 5.) The court has considered
Weyerhaeuser's motion, as well as all the attached
declarations and exhibits, the appropriate portions of the
record, and the relevant law. Considering itself fully
advised, the court GRANTS the motion for a TRO and RESTRAINS
the TRO Defendants from seeking, in any other forum, an
injunction against Weyerhaeuser as related to this matter.
filed this declaratory judgment action on April 20, 2018,
disputing whether the various policies-at-issue contain an
arbitration clause. (See Compl. (Dkt. # 1) ¶
1.) On April 30, 2018-four days after being served with the
instant action- Defendant XL Catlin Syndicate 2003 ("XL
Catlin") filed a competing action in the English High
Court in London, alleging that its policy is subject to
mandatory arbitration in London. (Cordell Decl. (Dkt. # 6)
¶ 3.) The London court issued an Interim Order
precluding Weyerhaeuser from proceeding against XL Catlin in
this court, subject to fines, asset seizure against
Weyerhaeuser, and imprisonment of its directors and counsel.
(Id. ¶ 5.) XL Catlin sent this Interim Order to
Weyerhaeuser on May 3, 2018-the first time Weyerhaeuser was
informed of the competing London action. (Id. ¶
4.) The Interim Order requires Weyerhaeuser to argue the
merits of the arbitrability dispute at a hearing scheduled
for May 18, 2018. (Id. ¶ 5.)
the policies issued by the TRO Defendants contain essentially
the same relevant language as the XL Catlin policy
(id. ¶ 6), Weyerhaeuser filed the instant
motion to prevent the TRO Defendants from proceeding as XL
Catlin did-that is, making a similar request to the English
courts, receiving a similar injunction preventing
Weyerhaeuser from taking further action here, and compelling
Weyerhaeuser to argue the issue in England (see Mot.
at 4-5, 12-13). The court now considers the motion.
court is authorized to issue this TRO pursuant to Federal
Rule of Civil Procedure 65(b). See Fed. R. Civ. P.
65(b). Generally, a plaintiff seeking a TRO in federal court
must meet the standards for issuing a preliminary injunction:
(1) that 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.
See Stuhlbarg Int'l Sales Co. v. John D. Brush &
Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001); Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
However, in cases involving an anti-suit injunction, the
movant "need not meet the usual test of a likelihood of
success on the merits of the underlying claim .... Rather,
[the movant] need only demonstrate that the factors specific
to an anti-suit injunction weigh in favor of granting the
injunction." E. & J. Gallo Winery v. Andina
Licores S.A., 446 F.3d 984, 991 (9th Cir. 2006).
court finds that Weyerhaeuser has demonstrated a sufficient
likelihood of success on the merits. Specifically, the court
finds that the three factors for an anti-suit injunction set
forth in Gallo have been met. First, the parties and
issues in the two proceedings are identical. See Id.
Second, the foreign court orders enjoining proceedings before
this court would frustrate important policies of this forum
and are likely vexatious and inequitable. See id.; see
also MicrosoftII, 696 F.3d at 886 (finding that the
timing and location of the foreign action "raise[d]
concerns of forum shopping and duplicative and vexatious
litigation"). And third, an injunction against foreign
court orders in this private contractual dispute will not
intolerably harm the interests of international comity.
See Microsoft II, 696 F.3d at 887.
court may grant a TRO "only if the movant gives security
in an amount that the court considers proper to pay the costs
and damages sustained by any party found to have been
wrongfully ... restrained." Fed.R.Civ.P. 65(c). However,
a 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."
Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir.
2003). The only prejudice to TRO Defendants is the minimal
burden caused by the delay. See supra n. 1. The
court therefore finds that any potential costs and damages to
TRO Defendants are de minimis and declines to impose a bond
court may issue the TRO without written or oral notice to the
adverse party if "specific facts in an affidavit or a
verified complaint clearly show that immediate and
irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition" and
"the movant's attorney certifies in writing any
efforts made to give notice and the reasons why it should not
be required." Fed.R.Civ.P. 65(b)(1); see also
Local Rules W.D. Wash. LCR 65(b)(5) ("If the movant
meets the requirements of Fed.R.Civ.P. 65(b), the court may
grant the motion without awaiting a response.").
Weyerhaeuser has shown, through its declaration and exhibits,
that TRO Defendants may take a similar course of action as XL
Catlin, thus subjecting Weyerhaeuser to immediate,
substantial and irreparable harm of being unable to proceed
in its first-filed suit, and being forced to argue its case
instead in a foreign court. (See Cordell Decl.
¶¶ 3-6.) Should Weyerhaeuser face injunctions
similar to the one obtained by XL Catlin, Weyerhaeuser is
placed in the "severely prejudicial position" of
forfeiting its choice of forum or facing significant
penalties. (Id. ¶ 6; see also Id.
¶ 5.) Indeed, because of XL Catlin's injunctive
order, Weyerhaeuser omitted XL Catlin from its present TRO
motion for fear of potential liability in the English court,
choosing instead to contest the Interim Order at the May 18,
2G18, hearing in England. (Id. ¶ 6.)
also certifies its efforts to give notice to TRO Defendants.
It emailed notice of the instant motion and copies of all
attached documents immediately after filing. (Id.
¶ 7.) It additionally served copies of all filed
documents via Federal Express to counsel for TRO Defendants.
(Id.) But because of the ease with which any one of
the TRO Defendants can obtain an injunction from the English
court-as evidenced by XL Catlin's ability to secure an
Interim Order with no argument or notice to Weyerhaeuser
(see Id. ¶ 4)-Weyerhaeuser aptly argues that
the requested TRO "must be issued immediately if it is
to preserve the status quo and prevent immediate and
irreparable harm to Weyerhaeuser" (id. ¶
6). Because Weyerhaeuser has shown that "immediate and
irreparable injury, loss, or damage will result to the movant
before the [TRO Defendants] can be heard" and certifies
its efforts to give notice, see Fed. R. Civ. P.
65(b)(1), the court finds it appropriate to impose the TRO
without first considering a response from TRO Defendants.
to Federal Rule of Civil Procedure 65(b)(2), the TRO
instituted by this order expires 14 days from the date of
filing unless the court issues an extension.See Fed.
R. Civ. P. 65(b)(2). In addition, the court will consider
Weyerhaeuser's motion and supporting documents as a
motion for preliminary injunction and RENOTES the motion for
May 23, 2018. See Fed. R. Civ. P. 65(b)(3) ("If
the [TRO] is issued without notice, the motion for a
preliminary injunction must be set for hearing at the
earliest possible time ...."). TRO Defendants'
response is due no later than Friday, May 18, 2018, and
Weyerhaeuser's reply, if any, is due no later than
Wednesday, May 23, 2018. A hearing on the motion for
preliminary injunction will be held on Friday May 25, ...