3M Company v. Rx2Live, LLC ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 3M COMPANY, No. 1:20-cv-0523-NONE-SAB 12 Plaintiff, 13 v. ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER; 14 RX2LIVE, LLC, and RX2LIVE, INC., AND ORDERING DEFENDANTS TO SHOW CAUSE RE PRELIMINARY INJUNCTION 15 Defendants. (Doc. No. 14) 16 17 18 19 On April 10, 2020, plaintiff 3M Company (“3M”) filed a complaint against defendant 20 RX2Live, LLC. (Doc. No. 1.) On April 19, 2020, plaintiff filed an amended complaint, adding 21 RX2Live, Inc. as a defendant. (Doc. No. 8.) On April 27, 2020, plaintiff filed a motion for a 22 temporary restraining order (“TRO”) and preliminary injunction as to its federal and state claims 23 for trademark infringement and dilution, unfair competition, false endorsement, false association, 24 false designation of origin, and unlawful, unfair, and fraudulent business acts and practices. 25 (Doc. No. 14-1.) 3M seeks temporary injunctive and preliminary relief to prevent defendants 26 RX2Live, LLC and RX2Live, Inc. from using 3M’s trademarks in connection with defendants’ 27 promotion of goods or services, including plaintiff’s 3M-brand N95 respirators. (Id.) As of the 28 date and time of entry of this order, no defendant has filed an opposition to the pending motion or 1 otherwise attempted to communicate with the court.1 Having reviewed the record and the 2 relevant authorities, the court grants the motion for a TRO and orders defendants to show cause 3 why a preliminary injunction should not issue. 4 IT IS HEREBY ORDERED that 3M’s Motion for a TRO is GRANTED in its entirety. 5 It is hereby further ORDERED that: 6 1. Defendants appear before The Honorable Dale A. Drozd, District Judge, United 7 States District Court for the Eastern District of California, on Tuesday, May 12, 2020, at 10:00 8 a.m. (Pacific Time), via telephone conference pursuant to General Order No. 612 issued on 9 March 16, 2020, and show cause (the “Show Cause Hearing”) as to why the court should not 10 enter an Order, pursuant to Federal Rule of Civil Procedure 65(a), that: 11 a. Preliminarily enjoins defendants, their agents, servants, employees, officers and all 12 persons and entities in active concert and participation with them from using the “3M” trademarks 13 (the “3M Marks”) and any other word, name, symbol, device, or combination thereof that is 14 confusingly similar to the 3M Marks, for, on, and/or in connection with the manufacture, 15 distribution, advertising, promoting, offering for sale, and/or sale of any goods or services, 16 including, without limitation, plaintiff’s 3M-brand N95 respirators, during the pendency of this 17 action, and 18 b. Preliminarily enjoins defendants, their agents, servants, employees, officers and all 19 persons and entities in active concert and participation with them from engaging in any false, 20 misleading, and/or deceptive conduct in connection with 3M and its products, including, without 21 limitation, representing themselves as being authorized distributors, vendors, agents, 22 1 The court finds that plaintiff has made reasonable attempts to provide defendant notice of its 23 motion for a TRO and this court’s April 28, 2020 minute order via telephone, e-mail, and overnight delivery. (Doc. No. 14-2 at 2–3; Doc. No. 14-3 at 2; Doc. Nos. 16, 17.) Plaintiff 24 indicates that all relevant documents were delivered on April 27 and April 29, 2020 to the home 25 of defendants’ CEO Brian Hazelgren in Mesa, Arizona (Doc. No. 14-2; Doc. No. 14-41; Doc. No. 17), the same address where plaintiff personally served its Complaint, First Amended Complaint, 26 and summons upon defendant. (Doc. No. 15.) The court notes that defendants did not retain attorney Joe Lipari of The Sultzer Law Group as counsel and that plaintiff has been diligent in 27 attempting to determine whether defendants have retained counsel and whether defendants would stipulate to a resolution of plaintiff’s motions. (Doc. No. 17.) 28 1 representatives, retailers, and/or licensees of 3M and/or any of 3M’s products (including, without 2 limitation, 3M-brand N95 respirators); falsely representing to have an association or affiliation 3 with, sponsorship by, and/or connection with, 3M and/or any of 3M’s products; falsely 4 representing that 3M has increased the price(s) of its 3M-brand N95 respirators; and offering to 5 sell any of 3M’s products at a price and/or in a manner that would constitute a violation 6 California Penal Code § 396 and/or California Business and Professions Code §§ 17200 et seq., 7 during the pendency of this action. 8 2. Sufficient reason having been shown therefor, from the date of this Order, through 9 and including the date of the Show Cause Hearing, Defendants, their agents, servants, employees, 10 officers and all persons and entities in active concert and participation with them, are hereby 11 temporarily restrained, pursuant to Federal Rule of Civil Procedure 65(b), from engaging in any 12 of the acts and/or conduct described in Paragraphs 1(a) and 1(b) of this Order. 13 3. Pursuant to this court’s equitable powers and discretion, 3M need not post a bond. 14 4. 3M and/or its authorized representative(s) shall serve defendants with copies of 15 this Order and all pleadings and other papers in support of the Order on or before Monday, May 16 4, 2020, by overnight courier service with verification of receipt. 17 5. Defendants shall file an Opposition, if any, to the Order to Show Cause on or 18 before Thursday, May 7, 2020. Defendants are forewarned that failure to timely file an 19 opposition waives any right to be heard in opposition at the hearing on the pending motion for 20 preliminary injunction and may result in the hearing being vacated and the matter submitted for 21 decision on the papers. See Local Rule 230(c); see also Goldberg v. Barreca, 720 F. App’x 877, 22 878 (9th Cir. 2018) (holding district court did not abuse its discretion by failing to hold 23 evidentiary hearing when initially ruling on preliminary injunction motion because it did not need 24 to resolve any factual disputes).2 25 6. Plaintiff shall file and serve its reply to defendant’s opposition, if any, on or before 26 Friday, May 8, 2020. 27 2 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). □□□ LOU EYVUEYEUUINY INE SN BO PO TOT Ee AY ST UT 1 7. Defendants are further notified of their right to apply to the court for modification 2 | or dissolution of this Temporary Restraining Order on two (2) days’ notice or such shorter notice 3 | as the court may allow. See Fed. R. Civ. P. 65(b) and Local Rule 231(c)(8). 4 This court shall retain jurisdiction to hear and determine all matters arising out of, relating 5 | to, and/or otherwise concerning the interpretation and/or enforcement of this Order. 6 | ITIS SOORDERED. si am 7 Li. wh F Dated: _ April 30, 2020 wea rE 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28