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Venice PI, LLC v. Galbatross Technologies, LLP

United States District Court, D. Hawaii

December 31, 2019

VENICE PI, LLC, HEADHUNTER, LLC, MON LLC, COOK PRODUCTIONS, LLC, COLOSSAL MOVIE PRODUCTIONS, LLC, CLEAR SKIES NEVADA, LLC, BODYGUARD PRODUCTIONS, INC., I.T. PRODUCTIONS, LLC, COBBLER NEVADA, LLC, JUSTICE EVERYWHERE PRODUCTIONS, INC., GLACIER FILMS 1, LLC, MILLENNIUM FUNDING, INC., TBV PRODUCTIONS, LLC, Plaintiffs,
v.
GALBATROSS TECHNOLOGIES, LLP, HIMANSHU SAXENA, GAURAV JAGGI, Defendants.

          ORDER DENYING PLAINTIFFS' RENEWED APPLICATION FOR ENTRY OF TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

          Leslie E. Ksbayashi United States District Judge

         On August 16, 2019, Plaintiffs Venice PI, LLC; Headhunter LLC; MON LLC; Millennium Funding, Inc.; TBV Productions, LLC; Cook Productions, LLC; Glacier Films 1, LLC; Colossal Movie Productions, LLC; Clear Skies Nevada, LLC; Bodyguard Productions, Inc.; I.T. Productions, LLC; Cobbler Nevada, LLC; and Justice Everywhere Productions, Inc. (“Plaintiffs”) filed, ex parte, their Renewed Application for Entry of Temporary Restraining Order and Preliminary Injunction (“Motion”).[1] [Dkt. no. 87.] On September 5, 2019, Plaintiffs filed a supplemental memorandum in support of the Motion. [Dkt. no. 90.] The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.1(c) of the Local Rules of Practice for the United States District Court for the District of Hawaii (“Local Rules”). The Motion's request for a TRO is hereby denied for the reasons set forth below.

         BACKGROUND

         Some of the current Plaintiffs, along with other entities, initiated this action on May 23, 2018.[2] [Complaint (dkt. no. 1).] The operative pleading is Plaintiffs' Second Amended Complaint, filed on December 5, 2018. [Dkt. no. 54.] Plaintiffs each own one or more copyrights to various motion pictures listed in the Second Amended Complaint (collectively “the Works”). [Id. at ¶ 8.] “Each of the Works are motion pictures currently offered for sale in commerce.” [Id. at ¶ 90.] Plaintiffs allege Defendants Galbatross Technologies, LLP (“Galbatross”); Himanshu Saxena (“Saxena”); Gaurav Jaggi (“Jaggi”); DOE 5, doing business as show-box.en.uptodown.com/android (“Doe 5”); Rajat Kulshrestha (“Kulshrestha”); Ipathy Srinivas Rao (“Rao”), and Monitu Bansal (“Bansal” and collectively “Defendants”) utilize the Show Box software application (“Show Box app”) to engage in “massive piracy of” the Works. [Id. at pg. 1.] According to Plaintiffs, “Defendants misleadingly promote the Show Box app as a legitimate means for viewing content to the public, who eagerly install the Show Box app to watch copyright protected content, thereby leading to profit for the Defendants.” [Id. at ¶ 1.] Plaintiffs bring this action pursuant to the United States Copyright Act of 1976, as amended (“Copyright Act”), 17 U.S.C. § 101, et seq. [Id. at ¶ 2.] Plaintiffs allege the following claims: contributory copyright infringement, based on the inducement of third parties to stream the Works (“Count I”); contributory copyright infringement, based on the inducement of third parties to torrent the Works (“Count II”); contributory copyright infringement, based on Defendants' material contribution to the infringement upon Plaintiffs' rights under the Copyright Act (“Count III”); and direct copyright infringement (“Count IV”).

         Plaintiffs and Rao stipulated to a consent judgment, [filed 12/28/18 (dkt. no. 63), ] and Plaintiffs also did so with Doe 5 - who was identified as Lahoucine Ikous, [filed 2/1/19 (dkt. no. 66), ] Bansal, [filed 2/1/19 (dkt. no. 67), ] and Kulshrestha, [filed 5/23/19 (dkt. no. 78)]. Thus, the only defendants remaining in this action are Galbatross, Saxena, and Jaggi (“Remaining Defendants”). Plaintiffs have made multiple attempts to effectuate service upon the Remaining Defendants, but have been unsuccessful. See, e.g., Submission of Report of Service per Hague Convention of Def. Pebblebridge Technologies, LLP, [3] filed 12/12/19 (dkt. no. 98) (documents showing that attempted service on Galbatross at a Business Park address in India was unsuccessful); Decl. of Stephanie Kessner, filed 7/17/19 (dkt. no. 85) (with documents showing that attempted service on Jaggi at a Green Park address in India, in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (“Hague Convention”), was unsuccessful); summons returned unexecuted, filed 5/7/19 (dkt. no. 75) (similar Hague Convention documents as to attempted service upon Saxena at a Green Park address in India).[4] A new summons was issued for service upon Jaggi at a residential address in Gurgaon, India, [Summons in a Civil Case, filed 9/17/19 (dkt. no. 93), ] but no return has been filed.

         Plaintiffs previously filed two ex parte motions for authorization to utilize alternate service of process for the Remaining Defendants, but both motions were denied. [Ex parte motion, filed 5/23/19 (dkt. no. 79) (“5/23/19 Motion”); ex parte motion, filed 7/10/19 (dkt. no. 84) (“7/10/19 Motion”); order denying 5/23/19 Motion, filed 6/28/19 (dkt. no. 83) (“6/28/19 Order”); order denying 7/10/19 Motion, filed 8/30/19 (dkt. no. 89) (“8/30/19 Order”).]

         In the instant Motion, Plaintiffs seek a TRO requiring:

the registrar NameCheap, Inc. to immediately lock the following domains associated with [the Remaining Defendants] to prevent [them] from transferring said domains to a registrar outside of the United States:
galbatross.com; show-box.one; showboxmediagroup.org; showboxme.com; showboxforpcguide.com; showboxcomputer.com; showboxapp.me; showboxapkdownloads.com; showboxandroid.com; showbox360.com; downloadshowboxapps.com; downloadshowboxapp.co; app-showbox.com; showoxforpc.me; showboxforpc.xyz; showboxforpc.me; showboxforpc.io; showboxforpc.download; forpcdownload.com; downloadshowbox.co; downloadshowbox.app; cinemaboxhdi.com; cinemabox-hd.com; terrariumtv.org; terrariumtv.net; terrarium-tv.com[.]

[Motion at 1-2.]

         DISCUSSION

         The requirements to obtain a TRO or a preliminary injunction are well-established. See Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” (citations omitted)); Washington v. Trump, 847 F.3d 1151, 1159 n.3 (9th Cir. 2017) (per curiam) (“the legal standards applicable to TROs and preliminary injunctions are substantially identical” (citation and internal quotation marks omitted)). Further, under very limited circumstances, a district court may grant a plaintiff's request for a TRO without notice to the defendant. See Fed.R.Civ.P. 65(b)(1); Reno Air Racing Ass'n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). However, some threshold issues must be addressed before the requirements for a TRO can be examined.

         I. Service

         Plaintiffs assert they have completed service upon the Remaining Defendants by email, in accordance India's law regarding service - Order V, Rule 20(1) of the Code of Civil Procedure 1908 - and this satisfies Fed.R.Civ.P. 4(f)(2)(A). [Suppl. Mem. at 27 (citing Motion, Decl. of Sanjay Aggarwal (“Aggarwal Decl.”) at ¶¶ 7-11; Motion, Decl. of Counsel at ¶ 2).[5] Rule 4(f) states:

Serving an Individual in a Foreign Country.
Unless federal law provides otherwise, an individual - other than a minor, an incompetent person, or a person whose waiver has been filed -may be served at a place not within any judicial district of the United States:
(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:
(A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;
(B) as the foreign authority directs in response to a letter rogatory or letter of request; or
(C) unless prohibited by the foreign country's law, by:
(i) delivering a copy of the summons and of the complaint to the individual personally; or
(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a ...

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