Medical Communications Resources, Inc. et al v. Global Initiative for Asthma, Inc. et al, No. 3:2010cv05541 - Document 36 (W.D. Wash. 2010)
Court Description: ORDER Granting Plaintiffs' Motion for Reconsideration and Issuing Amended Temporary Restraining Order by Judge Benjamin H Settle re 25 MOTION for Reconsideration filed by Medical Communications Resources, Inc., US Health Network, Inc. (TG)
Download PDF
<![CDATA[
Medical Communications Resources, Inc. et al v. Global Initiative for Asthma, Inc. et al Doc. 36 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 9 MEDICAL COMMUNICATIONS RESOURCES, INC., et al., CASE NO. C10-5541BHS Plaintiffs, 10 11 12 v. GLOBAL INITIATIVE FOR ASTHMA, INC., et al., 13 Defendants. ORDER GRANTING PLAINTIFFS’ MOTION FOR RECONSIDERATION AND ISSUING AMENDED TEMPORARY RESTRAINING ORDER 14 15 This matter comes before the Court on Plaintiffs Medical Communications 16 Resources, Inc. and US Health Network, Inc.’s motion for reconsideration (Dkt. 25) of 17 the Court’s order granting Defendants Global Initiative for Asthma, Inc. (“GINA”) and 18 Global Initiative for Chronic Obstructive Lung Disease, Inc.’s (“GOLD”) motion for 19 temporary restraining order (“TRO”) and request for order to show cause why a 20 preliminary injunction should not issue (Dkt. 21). The Court has considered the 21 pleadings filed in support of and in opposition to the motions, oral arguments of counsel, 22 and the remainder of the file and hereby grants the motion for reconsideration and amends 23 the temporary restraining order for the reasons stated herein. I. PROCEDURAL AND FACTUAL HISTORY 24 25 On August 3, 2010, Plaintiffs filed the complaint in this action alleging claims 26 against Defendants for trademark infringement and violation of the Lanham Act, breach 27 of fiduciary duty, constructive trust, accounting, injunctive relief and copyright 28 ORDER - 1 Dockets.Justia.com 1 infringement. Dkt. 1 at 12-16. On August 30, 2010, Defendants filed their answer to the 2 complaint including counterclaims against Plaintiffs. Dkt. 12. Also on August 30, 2010, 3 Defendants filed a motion for TRO and request for order to show cause why a 4 preliminary injunction should not issue. Dkt. 13. Defendants represented that Plaintiffs 5 were given notice of their motion as they were served with an electronic version of the 6 motion at the time it was filed. Dkt. 13 at 21. Plaintiffs did not respond to the motion for 7 TRO or inform the Court that they intended to respond. On September 2, 2010, the Court 8 issued an order granting Defendants’ motion for TRO and scheduling a hearing on their 9 request for a preliminary injunction. Dkt. 21. On September 7, 2010, Plaintiffs filed the instant motion for reconsideration of the 10 11 Court’s order granting the TRO. Dkt. 25. On September 8, 2010, Defendants filed a 12 response. Dkt. 29. Also on September 8, 2010, the Court held oral argument on the 13 motion for reconsideration and Defendants’ motion for TRO. See Dkt. 28. During oral 14 arguments, the parties agreed that they would attempt to come to an agreement on the 15 issues presented in Defendants’ motion for TRO and that they would inform the Court if 16 there were issues that they were not able to resolve. On September 13, 2010, the parties informed the Court that they had come to an 17 18 agreement on all but one issue presented in the motion for TRO. See Dkts. 32 & 34. On 19 September 14, 2010, the Court held a telephone conference with the parties to discuss the 20 unresolved issue of whether Plaintiffs would deposit the entire amount of the sponsorship 21 checks into an escrow account or keep their allegedly earned 12.5% commission and 22 deposit the remaining funds. II. DISCUSSION 23 24 25 26 27 A. Motion for Reconsideration Motions for reconsideration are governed by Local Rule CR 7(h), which provides as follows: Motions for reconsideration are disfavored. The court will ordinarily deny such motions in the absence of a showing of manifest error in the prior 28 ORDER - 2 ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence. 1 2 Local Rule CR 7(h)(1). 3 The parties have stipulated that the Plaintiffs’ motion for reconsideration should be 4 granted to the extent that the Court should amend its September 2, 2010, order granting 5 the TRO. See Dkts. 32 & 34. As stated above, the remaining issue on which the parties 6 have not agreed is whether Plaintiffs are entitled to keep their 12.5% commission of the 7 sponsorship checks or whether they must deposit the entire amount of the checks into the 8 escrow account. During the September 14, 2010 hearing, the parties made oral arguments 9 on this issue and the Court orally ruled that Defendants had not met the requirements for 10 11 12 13 issuing a TRO to enjoin Plaintiffs from retaining the 12.5% commission. B. TRO The purpose of a TRO is “preserving the status quo and preventing irreparable 14 harm just so long as is necessary to hold a hearing [on the preliminary injunction 15 application], and no longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters & 16 Auto Truck Drivers, 415 U.S. 423 (1974); see also Reno Air Racing Ass’n v. McCord, 452 17 F.3d 1126, 1130-31 (9th Cir. 2006). To obtain preliminary injunctive relief, the moving 18 19 party must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable 20 harm to the moving party in the absence of preliminary relief; (3) a balance of equities 21 tips in the favor of the moving party; and (4) that an injunction is in the public interest. 22 Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S. Ct. 365, 376 (2008). 23 24 As stated above, the parties have come to an agreement on all but one issue involved in Defendants’ motion for TRO. The Court concludes that Defendants have not 25 26 27 shown a likelihood of success on the merits or irreparable injury regarding the deposit of the 12.5% commission into the escrow account where the remaining funds of those 28 ORDER - 3 1 checks will be held. Defendants have failed to submit evidence that they are likely to be 2 entitled to that commission or that they will be irreparably harmed if Plaintiffs are 3 allowed to keep the commission while depositing the remainder of the sponsorship checks 4 in an escrow account. Therefore, the Court concludes that the parties’ stipulated order 5 6 7 will be entered without the requirement that Plaintiffs deposit the 12.5% commission allegedly due Plaintiffs into the escrow account. 8 III. ORDER 9 Therefore, it is hereby ORDERED that Plaintiffs’ motion for reconsideration 10 (Dkt. 25) is GRANTED to the extent that the Court’s TRO (Dkt. 21) is AMENDED as 11 follows: 12 13 (1) Plaintiffs shall: (a) 14 Within 48 hours, restore Defendants’ access to and control over the 15 GINA and GOLD websites and to communications received from 16 visitors to those websites. Within ten (10) days, Plaintiffs will 17 provide Defendants with copies of all emails received from visitors 18 to the GINA and GOLD websites between July 29, 2010, and 19 September 7, 2010. If Defendants cannot provide these 20 communications within this timeframe, the parties will hold a meet 21 22 and confer to develop a protocol for providing GINA and GOLD 23 with the communications as expeditiously as possible; 24 (b) 25 Within 48 hours, restore control of communications regarding World Asthma Day and World COPD Day to Defendants; 26 27 28 ORDER - 4 1 (c) 2 Within ten (10) days, transfer into a joint third-party interest bearing escrow account any and all yearly sponsorship funds received by 3 Plaintiffs, which would ordinarily be due pursuant to the subject 4 2008 agreements between MCR, on the one hand, and Defendants on 5 the other hand (“the Agreements”). Such funds shall be transferred 6 7 into escrow without prejudice to any of the parties’ respective 8 positions as to whether the Agreements have terminated. Such funds 9 shall be held in escrow pending final determination of the issues in 10 this litigation, or until further order of the Court. In the event that 11 Plaintiffs receive any additional yearly sponsorship funds which 12 would ordinarily be due pursuant to the Agreements, such funds 13 14 shall be placed in the escrow account within ten (10) days of receipt 15 by Plaintiffs; 16 (d) 17 Provide Defendants with a copy of the subject escrow instructions, as well as regular periodic accountings of the yearly sponsorship 18 funds received by Plaintiffs, within ten (10) days after any yearly 19 sponsorship funds are deposited into the subject joint escrow 20 account; 21 (e) 22 As soon as possible, but not to exceed thirty (30) days, provide 23 Defendants with a copy of any and all agreements (inclusive of any 24 documents that contain restrictions on use of the sponsorship funds) 25 with sponsors relating to yearly sponsorship funds placed in escrow 26 under this order. Defendants shall not use the applications and 27 28 ORDER - 5 1 agreements, or the contents thereof, for any purpose other than this 2 litigation, or as necessary to ensure compliance with said 3 agreements. Defendants shall not disclose the subject agreements 4 with sponsors to anyone other than the attorneys, parties involved in 5 this litigation, and the specific sponsor with whom the agreement has 6 been made. 7 8 (2) further order of the Court. 9 10 The parties stipulate and agree that this order shall remain in effect until (3) 11 The parties stipulate and agree to early mediation of this matter, to be completed on or before December 3, 2010, which shall satisfy the parties’ 12 required alternative dispute resolution obligations under Local Civil Rule 13 39.1. The parties shall try and cooperatively agree on the selection of a 14 15 mediator. In the event the parties are unable to agree, and upon motion by 16 either party, selection of the mediator shall be made by the Court from the 17 register of qualified attorneys maintained by the Clerk of the Court. 18 DATED this 15th day of September, 2010. 19 A 20 21 BENJAMIN H. SETTLE United States District Judge 22 23 24 25 26 27 28 ORDER - 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
