Future Motion, Inc. v. Changzhou First International Trade Co., Ltd., No. 2:2016cv00013 - Document 11 (D. Nev. 2016)

Court Description: ORDER GRANTING EX PARTE TEMPORARY RESTRAINING ORDER, SEZIURE ORDER AND SETTING HEARING DATE FOR MOTION FOR PRELIMINARY INJUNCTION. See order for specifics. Plaintiff to deposit with the Clerk of the Court the amount of $10,000.00 pursuant to L R 65.1-2 to serve as security. If additional security is required, Defendant shall file an application to the Court and provide notice to the Plaintiffs by 1/11/2016. Responses due by 1/11/2016. Replies due by 1/13/2016. A hearing on the Preliminary Injunction Motion is set for 1/14/2016 02:30 PM in LV Courtroom 4A before Judge Miranda M. Du. Signed by Judge Miranda M. Du on 1/6/2016. (Copies have been distributed pursuant to the NEF - PAV)
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Future Motion, Inc. v. Changzhou First International Trade Co., Ltd. Doc. 11 Case 2:16-cv-00013-MMD-CWH Document 8-20 Filed 01/06/16 Page 1 of 7 1 2 3 4 5 6 7 8 9 3993 Howard Hughes Pkwy, Suite 600 Las Vegas, NV 89169-5996 10 11 W. WEST ALLEN Nevada Bar No.: 5566 LEWIS ROCA ROTHGERBER CHRISTIE LLP 3993 Howard Hughes Parkway, Suite 600 Las Vegas, Nevada 89169 Telephone: (702) 949-8230 Facsimile: (702) 949-8364 E-mail: wallen@lrrlaw.com KOLISCH HARTWELL, P.C. SHAWN J. KOLITCH (Pro Hac Vice Pending) Oregon State Bar No. 063980 200 Pacific Building 520 S.W. Yamhill Street Portland, OR 97204 Telephone: (503) 224-6655 Facsimile: (503) 972-9115 E-mail: shawn@khpatent.com Attorneys for Plaintiff Future Motion, Inc. 12 UNITED STATES DISTRICT COURT 13 14 DISTRICT OF NEVADA FUTURE MOTION, INC., Case No.: 2:16-cv-00013-MMD-CWH 15 Plaintiff, 16 v. 17 18 CHANGZHOU FIRST INTERNATIONAL TRADE CO., LTD., 19 [PROPOSED] ORDER GRANTING PLAINTIFF’S EMERGENCY MOTION FOR AN EX PARTE TEMPORARY RESTRAINING ORDER, SEIZURE ORDER AND SETTING HEARING DATE FOR MOTION FOR PRELIMINARY INJUNCTION Defendant. 20 21 22 23 Plaintiff Future Motion, Inc. (“Future Motion”) has moved ex parte for a Temporary Restraining Order, Seizure Order and a Preliminary Injunction, pursuant to Federal Rules of Civil 24 25 26 27 Procedure, Rule 65, the Patent Act, 35 U.S.C. § 283, and Local Rule of Civil Practice 7-5. Future Motion alleges that Defendant Changzhou First International Trade Co., Ltd. (“Changzhou”) is distributing, promoting, and offering to sell products branded as “Surfing Electric Scooter,” 28 7192876_1 Dockets.Justia.com Case 2:16-cv-00013-MMD-CWH Document 8-20 Filed 01/06/16 Page 2 of 7 1 including at the 2016 International Consumer Electronics Show (“CES”) in Las Vegas, Nevada, 2 which infringe Future Motion’s U.S. Patent No. D746,928 (“the ‘928 patent”) and U.S. Patent No. 3 4 9,101,817 (“the ‘817 patent”). Future Motion further alleges that Defendant has willfully copied Future Motion’s patented technology and product design, and that Future Motion will be 5 6 7 irreparably harmed if the Court does not provide immediate injunctive relief to stop Defendant’s infringing activities. FINDINGS AND CONCLUSIONS 8 The Court, having duly considered Future Motion’s Complaint, Emergency Motion and 10 3993 Howard Hughes Pkwy, Suite 600 Las Vegas, NV 89169-5996 9 Supporting Memorandum for Entry of Temporary Restraining Order, Seizure Order and Preliminary 11 Injunction, declarations and exhibits submitted therewith, makes the following preliminary findings 12 and conclusions: 13 14 1. This Court has jurisdiction over this matter and over the Defendant. In addition, this 15 Court is a proper venue for this action and the Defendant has been properly served or will be served 16 as discussed more fully herein. 17 18 19 2. Future Motion is likely to succeed in showing that the ‘928 patent that is appended to the Complaint as Exhibit A, is owned by Future Motion, is valid, and is enforceable, and that Defendant has promoted and is making, offering for sale, selling and/or importing into the United 20 21 22 States products that infringe the ‘928 patent. 3. Further, Future Motion is likely to succeed in showing that the ‘817 patent that is 23 appended to the Complaint as Exhibit B, is owned by Future Motion, is valid, and is enforceable, and 24 that Defendant has promoted and is making, offering for sale, selling and/or importing into the United 25 States products that infringe the ‘817 patent. 26 27 28 7192876_1 Case 2:16-cv-00013-MMD-CWH Document 8-20 Filed 01/06/16 Page 3 of 7 4. 1 2 3 Specifically, Future Motion is likely to succeed on their patent infringement claims against Defendant’s “Surfing Electric Scooter” products and colorable imitations thereof (the “Accused Products”). 4 5. It appears to the Court that Defendant is a China-based manufacturer of commercial 5 6 7 products and, with the exception of its temporary presence in the United States during the 2016 CES show, does not have a regular place of business or assets in the United States. Further, Defendant is likely to offer the infringing products for sale at the CES show, and then leave the United States. It 9 also appears likely that, absent a grant of the requested relief, Defendant will use its efforts at CES to 10 3993 Howard Hughes Pkwy, Suite 600 Las Vegas, NV 89169-5996 8 fulfill orders, import the infringing products, and sell those products to customers in the United 11 States. 12 6. Absent an ex parte temporary restraining order, Defendant’s promotion and offers for 13 14 sale of the Accused Products will result in immediate and irreparable injury to Future Motion in the 15 form of lost market share, loss of control over its valuable intellectual property rights, loss of 16 consumer goodwill, and interference with Future Motion’s ability to exploit the ‘928 patent and the 17 ‘817 patent. Further, because Defendant has no apparent presence in the United States, it may be 18 difficult or impossible for Future Motion to recover a monetary judgment against Defendant. 19 7. It appears to the Court based on Future Motion’s representations that Future Motion 20 21 22 has made reasonable efforts to notify Defendant of its infringement and the likelihood that Future Motion would seek court intervention, but that Defendant has not responded to Future Motion’s 23 communications. 24 8. 25 26 27 The harm to Future Motion in denying the requested temporary restraining order outweighs the harm to the legitimate interests of Defendant from granting such relief. 9. The public interest weighs in favor of granting Future Motion the requested temporary restraining order. 28 7192876_1 Case 2:16-cv-00013-MMD-CWH Document 8-20 Filed 01/06/16 Page 4 of 7 1 2 3 4 10. Defendant is currently exhibiting products evidencing Defendant’s willful patent infringement alleged in the Complaint at the CES show taking place Jan. 6-9 in Las Vegas, Nevada. To prevent irreparable harm to Future Motion, the Court believes it is appropriate to prevent Defendant from exhibiting and offering for sale these products at the CES show. Because of the 5 6 7 timing of the show this week, this relief can only be granted immediately and on an emergency basis, without delaying to provide formal notice and an opportunity to appear to Defendant. TEMPORARY RESTRAINING ORDER 8 IT IS HEREBY ORDERED that pending a decision by the Court on Future Motion’s 10 3993 Howard Hughes Pkwy, Suite 600 Las Vegas, NV 89169-5996 9 application for preliminary injunction, Defendant and its officers, agents, servants, employees, and 11 attorneys, and all other persons acting in active concert or participation with any of them, are hereby 12 immediately, temporarily restraining from infringing Future Motion’s ‘928 patent or ‘817 patent at 13 14 15 the CES show in Las Vegas Nevada from January 6-9, 2016. Specifically, Defendant is hereby temporarily restrained from: 16 1. Making, using, selling, offering to sell, and importing into the United States commercial 17 products that infringe U.S. Design Patent No. D746,928 or U.S. Patent No. 9,101,817, and 18 colorable imitations thereof, including but not limited to Defendant’s “Surfing Electric 19 Scooter” products, by (a) offering to sell or selling such products to customers in the United 20 21 22 23 24 25 States in any manner, or (b) offering to sell or selling such products at CES in Las Vegas, Nevada from January 6-9, 2016; 2. Processing any payment (regardless of how the payment is made) for the sale of any of the accused products identified or encompassed by paragraph 1 above; 3. Transferring, moving, returning, destroying, or otherwise disposing of (a) any of the accused 26 27 28 products identified or encompassed by paragraph 1 above, or (b) any other evidence of Defendant’s illegal activities, including, without limitation, documents in any form or format 7192876_1 Case 2:16-cv-00013-MMD-CWH Document 8-20 Filed 01/06/16 Page 5 of 7 1 and any portable media device (such as, but not limited to, CDs, DVDs, flash drives, cell 2 phones, PDAs, hard disk drives, laptop computers, and memory cards), relating to 3 4 infringement of Future Motion’s U.S. Design Patent No. D746,928 or U.S. Patent No. 9,101,817, except pursuant to the Seizure Order below (collectively, “Evidence”). 5 6 7 IT IS HEREBY FURTHER ORDERED that, in accordance with the Court’s inherent equitable power to issue provisional remedies ancillary to its authority to provide final equitable relief, any web hosting company, domain name registry, and/or domain name registrar having notice 9 of the Court’s Order must (1) take any and all action necessary to remove the infringing products 10 3993 Howard Hughes Pkwy, Suite 600 Las Vegas, NV 89169-5996 8 from websites having content controlled by Defendant, or alternatively to disable access to the 11 website; and (2) provide notice of compliance to Future Motion’s counsel within ten (10) business 12 days of receipt of notice of this Order. 13 14 15 IT IS HEREBY FURTHER ORDERED that Defendant may, upon proper showing, appear and move for the dissolution or modification of the provisions of this Order. SEIZURE ORDER 16 17 IT IS HEREBY ORDERED that Evidence (as defined above in paragraph 3 of the Court’s 18 Temporary Restraining Order) shall be seized by the United States Marshals Service, assisted by one 19 or more attorneys or representatives of Future Motion, at any booth rented or occupied by Defendant 20 21 22 at CES as soon as practicable during the period of January 6-8, 2016. The United States Marshals Service may use all reasonable force in conducting the seizure and may open doors, locks, boxes, 23 briefcases, and containers of any type or nature to locate and identify Evidence to be seized. 24 Attorneys and other representatives of Future Motion must accompany the United States Marshals 25 Service during the seizure to identify the Evidence to be seized. Future Motion counsel must itemize 26 27 and take possession of the seized Evidence, provide a copy of the inventory to the United States Marshals Service, and file the inventory with the Court. In addition, Future Motion’s counsel may 28 7192876_1 Case 2:16-cv-00013-MMD-CWH Document 8-20 Filed 01/06/16 Page 6 of 7 1 record the contents of Defendant’s CES booth(s) and Evidence by photographic, audio, and/or 2 videographic means during the seizure action. The United States Marshals Service shall not retain 3 4 custody of seized Evidence but shall ensure that the Evidence is placed in the custody of Future Motion’s counsel. Future Motion agrees to indemnify the United States Marshals Service and hold it 5 6 7 8 9 3993 Howard Hughes Pkwy, Suite 600 Las Vegas, NV 89169-5996 10 11 harmless from any suit, claim, cause of action, damage, loss or injury arising from the execution of the seizure described in this Order. Additional official(s) representing Future Motion, Inc. may effectuate or assist with this Order as may be required. IT IS HEREBY FURTHER ORDERED that Defendant must provide any passwords necessary to access any electronically stored documents or electronic devices containing Evidence. IT IS HEREBY FURTHER ORDERED that access to any seized Evidence will be limited 12 to Future Motion’s outside counsel and contractors retained by Future Motion’s outside counsel to 13 14 copy, image and translate such evidence until five (5) days after entry of this Order, or as otherwise 15 ordered by the Court, to enable Defendant the opportunity to respond and seek an appropriate 16 protective order with respect to any confidential information or trade secrets. 17 18 19 ADDITIONAL ORDERS IT IS HEREBY FURTHER ORDERED that Future Motion shall deposit with the Clerk of the Court the amount of TEN THOUSAND UNITED STATES DOLLARS ($10,000) pursuant to 20 21 22 LR 65.1-2 to serve as sufficient security for the payment of any damages Defendant may be able to recover as a result of a wrongful seizure. To the extent Defendant believes that additional security is 23 necessary pursuant to Rule 65(c), Defendant shall file an application to the Court and provide notice 24 January 11, 2016 to counsel for Future Motion by ___________________________. 25 IT IS HEREBY FURTHER ORDERED that a preliminary injunction hearing is set for 26 4A 2:30 p.m. 14 January, _____________, 2016, at the hour of _________________, in Courtroom _____ before the 27 Miranda M. Du Honorable ______________________________________________. 28 7192876_1 Case 2:16-cv-00013-MMD-CWH Document 8-20 Filed 01/06/16 Page 7 of 7 1 2 3 4 Defendant shall file and serve any opposition to Future Motion’s motion for a preliminary 11 injunction by January ____________, 2016. Future Motion shall file and serve any reply in support of their motion for a preliminary 13 injunction by ____________________________, 2016. 5 6 7 IT IS HEREBY FURTHER ORDERED that this Order and the Summons and Complaint (and all supporting documents) must be served upon Defendant in person, if found at the 2016 International CES show, and by other means reasonably calculated to give Defendant notice of this 9 action, which shall include (a) via e-mail to the e-mail address provided by Defendant on its website 10 3993 Howard Hughes Pkwy, Suite 600 Las Vegas, NV 89169-5996 8 (http://cz-first.com/): leo@changzhou-first.com, and (b) via international FedEx to the postal address 11 provided by Defendant on its website: Longyu Western Road No. 28, Wujin, Changzhou, China. 12 IT IS SO ORDERED: 13 ______________________________________ UNITED STATES DISTRICT JUDGE 14 15 January 6, 2016 Dated: _________________________ 16 17 LEWIS ROCA ROTHGERBER CHRISTIE LLP, 18 /s/ W. West Allen W. West Allen Nevada Bar No.: 5566 3993 Howard Hughes Parkway, Suite 600 Las Vegas, Nevada 89169 19 20 KOLISCH HARTWELL, P.C. SHAWN J. KOLITCH (Pro Hac Vice Pending) Oregon Bar No. 063980 200 Pacific Building 520 S.W. Yamhill Street Portland, Oregon 97204 21 22 23 24 Attorneys for Plaintiff Future Motion, Inc. 25 26 27 28 7192876_1