The case of the day is H-D Michigan, LLC v. Hellenic Duty Free Shops S.A. (E.D. Wis. 2011). HD-Michigan and Harley-Davidson Motor Co. sued Hellenic for breach of a trademark licensing agreement. The court issued a temporary restraining order effective for fourteen days, which enjoined Hellenic from using Harley-Davidson’s trademarks. In the case of the day, Harley-Davidson asked the judge to extend the order until it could effect service of process on Hellenic in Greece under the Hague Service Convention.
On the one hand, Rule 65(b)(2) provides:
[A temporary restraining] order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.
“A like period,” as the court noted, is generally held to mean a second fourteen days.
On the other hand, since the TRO is meant to prevent irreparable harm, it would seem intolerable if the plaintiff were to lose the protection of the injunction because of the time it takes to serve process abroad.
The judge solved this problem by citing some cases where the courts had granted extensions of a TRO beyond the time contemplated in the rule. I think the better answer is the answer I suggested in the post on 3M Co. v. Christian Investments LLC, the case of the day from September 7. The court should simply hold a hearing on a preliminary injunction. Although 3M is a case to the contrary, I think the court has jurisdiction to enter a preliminary injunction even before the defendant has been served with process, as long as the defendant receives sufficient notice and an opportunity to be heard to satisfy the Due Process Clause. I think that this approach would do less violence to the rules than the approach in today’s case, which more or less ignores the plain language of Rule 65(b).