United States District Court, W.D. Washington, Seattle
ORDER RE: REQUEST FOR EX PARTE TEMPORARY RESTRAINING
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
November 19, 2019, Plaintiff Aquarian Foundation filed a
Motion for a Temporary Restraining Order (“TRO”)
against Defendants Bruce Kimberly Lowndes, several members of
the Lowndes family, organizations affiliated with that
family, organizations doing business with those
organizations, and numerous unknown individuals. Dkt. #2. The
Aquarian Foundation is a spiritual nonprofit/church located
in Washington State. Dkt. #1 at 2-3. Bruce Lowndes and many
of the other Defendants appear to reside in Tasmania,
Australia. See, e.g., Dkt. #1-11. The TRO seeks an
order enjoining Defendants from “[s]elling, marketing,
uploading, downloading, publishing, distributing, posting,
saving or using onto or from the Cloud, or using in any way
Works [for which Plaintiff claims copyright and trademark
protection].” Dkt #2-1 at 5. The TRO further seeks to
restrain Defendants from “representing, implying,
claiming, or in any way stating a relationship with or
authorization by Aquarian Foundation, Keith Milton Rhinehart,
the Church of Higher Spiritualism, or any other image or icon
that would lead an average consumer to perceive that there is
any relationship to or sponsorship by Aquarian
requests this Motion be heard without notice to Defendants.
Dkt. #2 at 5. In support of this request, Plaintiff asserts
that “[t]here is no probability that use and
publication of Aquarian's property will stop unless there
is ex parte court action. The foreign site being
used by defendants has not fully cooperated to recognize the
rights of Aquarian, so that the account is merely suspended.
Defendants in Australia will be allowed up to 90 days to
answer this lawsuit, and have evidenced the intent to post
and distribute the works on as many media as will allow
it…. It would be futile for counsel to further
communicate with defendants since they have now broken their
promises and agreements to stop publishing and violating
Aquarian's property.” Id. at 9. Plaintiff
has provided no evidence of service.
Court may issue a temporary restraining order without written
or oral notice to the adverse party or its attorney only 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). The Court's Local Rules otherwise allow for the
adverse party or parties to file a Response to a TRO.
See LCR 65(b)(5). The adverse party must file a
notice “indicating whether it plans to oppose the
motion within twenty-four hours after service of the motion,
” and “file its response, if any, within
forty-eight hours after the motion is served.”
Id. No reply is permitted from Plaintiff.
the requirements of Fed.R.Civ.P. 65(b) for issuance without
notice are satisfied, the moving party must serve all motion
papers on the opposing party before or contemporaneously with
the filing of the motion and include a certificate of service
with the motion.” LCR 65(b)(1).
Court has reviewed Plaintiff's Motion and finds it has
failed to demonstrate that immediate and irreparable injury
will result before Defendants can be heard in opposition.
Plaintiff's Motion admits it was able to obtain the
suspension of a website hosting the allegedly infringing
content. This would seem to indicate that continuing injury
has been halted to some degree. Plaintiff asserts in a
conclusory fashion that millions of individuals are viewing
infringing content, that there is no probability that this
infringement will stop unless there is ex parte
court action, and that it would be futile for counsel to
further communicate with Defendants. None of this has been
satisfactorily established. Furthermore, the TRO Motion
indicates that Plaintiff first became aware that Defendants
were allegedly infringing five years ago and sent a cease and
desist letter to them on November 5, 2014. Dkt. #2 at 3. If
the infringement has been going on for five years, a delay of
a few days for Defendants to respond will not significantly
add to Plaintiffs alleged injuries or lead to irreparable
harm. Accordingly, the Court will not grant ex parte
relief and Defendants may file a response pursuant to Local
Court will order Plaintiff to serve Defendants immediately.
Because many of Defendants appear to be located in Australia,
the Court will give Plaintiffs several days to serve. If
Plaintiffs are unable to serve within this time frame, the
Court will deny this Motion and Plaintiffs may refile after
service of all Defendants is complete.
the Court DIRECTS Plaintiff to serve a copy of all filings in
this case on all named Defendants, including this Order, by
no later than noon on Friday, November 22, 2019, and to
provide the Court with proof of service no later than 3 p.m.
that same day.
because Defendants will not receive timely notice of the TRO
Motion, the Court will extend the deadlines for Defendants to
file notices of intent to respond and to respond. Defendants
shall have until noon on November 25, 2019, to file ...