The case of the day, 3M Co. v. Christian Investments LLC (E.D. Va. 2011), poses the question whether a foreign defendant who has not yet been served by process can be bound by a preliminary injunction.

3M, the multinational company headquartered in St. Paul, Minnesota, owns the “3M” trademark and has registered many domain names that incorporate “3M” (e.g., 3m.com, mmm.com, 3mtechnologies.com, and so forth). 3M alleged that several online gambling companies had registered domain names that were identical or confusingly similar to 3M’s trademarks. It sued the companies, several companies that provided web hosting service to them, and the “defendant domain names.” After filing the complaint, 3M sent copies of the complaint and the preliminary injunction motion papers to the gambling companies and the web hosting companies by email and by mail, but it did not make formal service of process before the preliminary injunction hearing. Could the court preliminarily enjoin them, despite the lack of formal service of process? The issue is within the Letters Blogatory scope of coverage because, as 3M noted, effecting service abroad can take months.

The court held that while a temporary restraining order can bind a defendant even before service of process, a preliminary injunction cannot, because the preliminary injunction is invalid in the absence of personal jurisdiction, and service of process is necessary to obtain jurisdiction.

I think the case is formalistic and wrongly decided. First, let’s look at the relevant rule. Under Fed. R. Civ. P. 65(a)(1), the court may issue a preliminary injunction “only on notice to the adverse party.” Under Rule 65(b)

The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A) 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

(B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

I have two basic criticisms of the court’s decision. First, Rule 65(a) requires “notice” to the adverse party, nothing more. Rule 65(b) also uses the language of “notice”, and adds the phrase “written or oral”, which suggests to me that the Rule uses “notice” to mean something other than service of process (service of process cannot be oral—the only example I know of where proceedings are initiated orally is the clameur de haro, which may work on Jersey or Guernsey but, sadly, has no place in federal civil procedure!) Second, if the court simply lacks the power to enjoin a defendant preliminarily unless the defendant has been served with the summons and complaint, why should the analysis be any different when the question is the court’s power to issue a TRO? Both a TRO and a preliminary injunction are meant to preserve the status quo against a threat of irreparable harm. The only real difference is that a TRO presupposes that the irreparable harm is more immediate. So the difference is really one of degree rather than of kind. If the objection to a preliminary injunction before service of process really is a jurisdictional objection going to the court’s power, then I don’t see how the immediacy of the threatened irreparable harm changes the analysis. But the Virginia court accepted that it was proper to issue a temporary restraining order even before service of process.

In the judge’s defense, however, I will say that he didn’t shy away from recognizing the contrary authority, which includes the two leading civil procedure treatises, Wright & Miller and Moore’s.