Convergent Mobile, Inc. v. JTH Tax, Inc. ( 2019 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CONVERGENT MOBILE, INC., Case No. 19-cv-6484-YGR 8 Plaintiff, ORDER DENYING WITHOUT PREJUDICE v. DEFENDANT’S EX PARTE MOTION FOR 9 TEMPORARY RESTRAINING ORDER AND 10 JTH TAX, INC. DBA LIBERTY TAX SERVICE, O RDER TO SHOW CAUSE Defendant. Dkt. No. 32 11 12 Defendant JTH Tax, Inc. dba Liberty Tax Service (“JTH”) has filed an ex parte motion 13 (Dkt. No. 32) for temporary restraining order and request for an order to show cause and set a 14 hearing on a preliminary injunction to: (1) enjoin plaintiff Convergent Mobile, Inc. 15 (“Convergent”) from the destruction or deletion of JTH’s Customer Confidential Information 16 throughout the pendency of this action, including but not limited to, JTH’s current Google My 17 Business (“GMB”) account (libertytax.gmb@gmail.com); and (2) mandate that Convergent 18 relinquish access and control over JTH’s GMB account and access and control to any and all other 19 GMB accounts Convergent has services on JTH’s behalf within three business days of the 20 issuance of any order. 21 Requests for temporary restraining orders are governed by the same general standards that 22 govern the issuance of a preliminary injunction. See New Motor Vehicle Bd. v. Orrin W. Fox Co., 23 434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg lnt'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 24 F.3d 832, 839 n. 7 (9th Cir. 2001). Preliminary injunctive relief, whether in the form of a 25 temporary restraining order or a preliminary injunction, is an “extraordinary and drastic remedy,” 26 that is never awarded as of right. Munaf v. Geren, 553 U.S. 674, 689-690 (2008) (internal 27 citations omitted). In order to obtain such relief, a party must establish four factors: (1) they are 1 preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the 2 public interest. Winter v. Natural Resources Defense Council. Inc., 555 U.S. 7, 20 (2008). 3 JTH has not satisfied the aforementioned requirements. Specifically, JTH does not and 4 cannot establish a likelihood of success on the merits, because, as conceded multiple times in the 5 motion, the subject matter of this particular dispute is outside the scope of this litigation — here, 6 || litigation revolving around a contractual dispute between Convergent and JTH. (See Dkt. No. 32 4 at 5 “Moreover, the GMB account and the content contained therein is not a subject of this g litigation .... The GMB account and JTH’s content . . . is solely the property of JTH, and its fate 9 is not at issue in this litigation.”), 10 (‘As noted above, the first factor a Court will consider in 10 determining whether injunctive relief is warranted is whether the party seeking relief can demonstrate a likelihood of success on the merits at trial. However, in this instance, the first factor is somewhat irrelevant.”), 11-12 (“In essence, whether or not JTH breached the agreement is irrelevant to the question of ownership of the GMB account and content .... JTH is quite = 8 confident it will successfully defend this action at trial, if necessary. But its right to the content M4 Convergent is holding hostage is not dependent on a favorable outcome at trial. As such, JTH’s Z 15 likelihood of success on the merits should not factor into the instant dispute.”).) A 16 Accordingly, the motion is DENIED WITHOUT PREJUDICE based upon the record presently 2 17 before the Court. 18 This terminates Docket No. 32. 19 IT Is SO ORDERED. 20 || Dated: December 20, 2019 21 Layrone Magtff lees YVONNE GONZALEZ ROGERS 22 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28