Tag Archives: prejudgment remedies

More on Preliminary Relief Before Service Of Process

In recent posts on 3M Co. v. Christian Investments LLC and H-D Michigan, LLC v. Hellenic Duty-Free Shops, S.A., I opined that given that courts have jurisdiction to enter temporary restraining orders binding foreign defendants before service of process, they should also have jurisdiction to enter preliminary injunctions before service of process, as long as the defendant received constitutionally adequate notice and an opportunity to be heard. The basis for my view was that if we assume that a court may enter a TRO in such cases, there is no jurisdictional reason to treat preliminary injunctions differently.

I want to follow the train of thought a little farther and ask how a US plaintiff would go about providing constitutionally adequate notice to a foreign defendant in such cases. I’m assuming that the foreign defendant is located in a country that is a party to the Hague Service Convention. The Convention applies not just to service of summonses and complaints, but to “all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” Moreover, the Convention is mandatory. Let’s assume that the foreign defendant has no attorney or other agent in the United States to whom constitutionally adequate notice could be given. So to give notice, the plaintiff seemingly would have to comply with the Convention. If the state of destination does not allow transmission by postal channels, or alternate means of service under Article 19, the plaintiff may be in a difficult spot, since use of the central authority almost certainly would not result in adequate notice in sufficient time to be useful.

What is the answer from the plaintiff’s perspective? Would the US court permit the plaintiff to disregard the Convention for this limited purpose? Could the foreign state punish the plaintiff for violations of its judicial sovereignty if the US plaintiff simply mails the documents to the defendant? All good questions! I’m not sure there’s a clear answer.

Case of the Day: H-D Michigan, LLC v. Hellenic Duty Free Shops S.A.

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).

Case of the Day: 3M Co. v. Christian Investments LLC

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.