Start at Kovalenko v. Epik Holdings Inc.Judge Tana Lin (W.D.) ruled today in favor of the petition. Wash.):
This lawsuit is a result of Plaintiff’s defamation/invasion of privacy action against defendants Epik Holdings, Inc., and Anonymize, Inc. The plaintiff is a Ukrainian businessman who trades in coal products internationally. A website named 368.media published an article in January 2022 stating that Plaintiff had been involved in illegal plans to transport coal into Ukraine, with the help of corrupt Russian officers and Ukrainian officials. This resulted, in part in overpayments for electricity and coal by the consumers. The article was removed by 368.media at the request Plaintiff’s lawyer. In the same month, another website, www.weeklynewsreview.com, also published the article. A court in Cyprus issued a warrant for plaintiff directing that the article be removed. The order was then completed.
The article was published on or about January 29, 2022 by another website www.warsawpoint.com (the “Third Article”) Plaintiff’s attorney emailed this website asking for the removal of the third article on January 29. Plaintiff’s attorney received a reply from the website the next day. It contained a link to an encrypted, self-destructing message that demanded payment of 0.01 bitcoin. Plaintiff is unable to determine the ownership of www.warsawpoint.com. However, Plaintiff thinks that Defendant Epik has the domain. Defendant Anonymize offers services to hide the identity of website owner and the two Defendants share the responsibility for operating the website.
Plaintiff’s counsel sent an email to Epik and Anonymize on September 23rd 2022 requesting the removal of the third article and declaring that the Jan 30 message was unlawful blackmail. On September 26, a Customer Success Representative responded to the email by instructing that abuse complaints to Epik should be submitted to a different channel, and the Customer Success Representative further notified Plaintiff’s counsel that the “ticket” had been marked as resolved. Anonymize did not respond to Plaintiff’s Counsel.
Plaintiff filed the action on November 4th. Plaintiff filed this action on November 4. Plaintiff requested oral argument as well as an expedited hearing. Summons was issued later the same day, And no Defendant appears to have been served or have appeared in this action….
Importantly, given that the U.S. federal jurisprudence “runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute … , courts have recognized very few circumstances justifying the issuance of
an Ex parte TRO.” … [T]Without adequate notice of Defendants, or without a sufficient basis to issue an Order of Recognition (TRO), the Court will not grant Plaintiff’s request. Ex parte TRO can be made before the Defendants. Plaintiff has failed to make the requisite showing of either element….
Plaintiff first shows no evidence of any notice being given to defendants. The motion was filed along with this action on November 4, 2022. A summons was also issued that day. LCR: The supporting documents and the Motion contain no evidence or representations, nor any mention of notice of defendants. This should have happened “before or contemporaneously” with filing the motion. [Loc. Civ. R.]65(b), or the reason such notice was not provided. The action has been completed without the appearance of the defendant. There is also no evidence that any defendant was aware of the motion.
Plaintiff does not provide any reason for this dearth of notice. Plaintiff’s counsel does not have the authority to “certify”.[d]Fed. R. Civ. R. Civ.
Importantly, evidence is not available to support any of these claims. Instant Plaintiff may sustain injury Before Notice can be sent to Defendants. Plaintiff was informed of the existence of the Third Article in January 2022. He emailed the site publishing it on January 29 and received a reply the next day. Plaintiff waited nine months before he filed the action. He also requested a TRO by this Court. Plaintiff explained that many events including the Russian invasion in Ukraine delayed him from being able to file an action for injunctive relief. He also stated that the priority of the invasion was on his loved ones, friends and coworkers, rather than his own agenda. [According to the Complaint, “Kovalenko is a Ukrainian national who currently resides in Monaco.” -EV]The Court understands the impact the invasion had on Plaintiff’s personal life and doesn’t intend to minimise it. However, Plaintiff’s delay of nine months shows that Plaintiff has no intention of minimizing the damage. Instant Injuries sufficient to justify an Ex parte TRO HERE. At most, Plaintiff only alleges a continuation of injuries he has already suffered, or a speculative injury of an immediate loss of business or potential clients. However, this is not enough.
Although the Court sympathizes with Plaintiff’s situation and is concerned about Plaintiff’s January 30, 2022 request, Plaintiff hasn’t shown that he gave Defendants adequate notice or that he was entitled to reply. Ex parte TRO without notification. TRO denied without prejudice to Plaintiff’s request. However, the Court is prepared to consider Plaintiff’s request for a preliminary injunction once Defendants are provided with adequate notice and opportunity to respond….