United States District Court, E.D. Texas, Tyler Division
W. SCHROEDER III UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation of the Magistrate
Judge (the “Report”), which contains her
findings, conclusions and recommendations regarding
Plaintiff's Ex Parte Motion for Entry of a (1)
Temporary Restraining Order, (2) Asset Restraining Order, (3)
Expedited Discovery Order and (4) Service of Process by Email
(Docket No. 3), recommending that Plaintiff's Motion be
denied. Having made a de novo review of the written
objections filed by Plaintiff, the Court concludes that the
findings of the Magistrate Judge are correct and the
objections are without merit. For the reasons stated below,
Plaintiff's objections are OVERRULED and
Plaintiff's motion (Docket No. 3) is
DENIED. Accordingly, the Magistrate
Judge's Report (Docket No. 11) is
Standard of Review and Reviewability
Court reviews objected-to portions of the Magistrate
Judge's Report and Recommendation de novo.
See Fed. R. Civ. P. 72 and 28 U.S.C. §
636(b)(1) (“A judge of the court shall make a de
novo determination of those portions of the report or
specified proposed findings and recommendations to which
objection is made.”). In conducting a de novo
review, the Court examines the entire record and makes an
independent assessment under the law. Douglass v. United
Servs. Automobile Assn, 79 F.3d 1415, 1430 (5th Cir.
1996) (en banc), superseded by statute on other
grounds, 28 U.S.C. § 636(b)(1).
of this review, “[t]he judge may also receive further
evidence or recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b)(1)(C);
see Fed. R. Civ. P. 72(b)(3) (“The district
judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.”). “It
is clear that the district court has wide discretion to
consider and reconsider the magistrate judge's
recommendation. In the course of performing its open-ended
review, the district court need not reject newly-proffered
evidence simply because it was not presented to the
magistrate judge.” Performance Autoplex II. Ltd. v.
Mid-Continent Cas. Co., 322 F.3d 847, 862 (5th Cir.
2003) (quoting Freeman v. Cty. of Bexar, 142 F.3d
848, 852 (5th Cir. 1998)). The Fifth Circuit “suggested
several factors that a court should consider in deciding
whether to accept additional evidence after a magistrate
judge's recommendation has issued . . . .”
Id. (citing Freeman, 141 F.3d at 853).
These factors include:
(1) the moving party's reasons for not originally
submitting the evidence; (2) the importance of the omitted
evidence to the moving party's case; (3) whether the
evidence was previously available to the non-moving party
when it responded to the . . . motion; and (4) the likelihood
of unfair prejudice to the non-moving party if the evidence
initial matter, Plaintiff requests the Court receive
additional evidence in support of its ex parte
motion. Docket No. 15 at 2. Plaintiff offers additional
evidence that includes, but is not limited to, the affidavit
of Viahart's CEO, Molson L. Hart (Docket No. 15-3) and
its supporting exhibits (Docket Nos. 15-4, 15-5, 15-6).
factors identified by the Fifth Circuit generally weigh in
favor of allowing Plaintiff to supplement the record. First,
the affidavit of Molson L. Hart clarifies evidence previously
submitted, and Plaintiff states the “evidence was not
submitted previously because Plaintiff was not fully aware of
. . . the specific concerns” of the Court. Docket No.
15 at 2. Second, the additional information is relevant to
Plaintiff's Ex Parte Motion and addresses
personal jurisdiction concerns raised by the Magistrate
Judge. Finally, this is an ex parte proceeding, and,
as such, the third and fourth factors tend to also favor
admission because the Defendants have not responded nor will
the Defendants be prejudiced by the Court receiving the
additional evidence. Accordingly, all the factors favor
admission and the Court shall consider Plaintiff's
additional evidence as part of its de novo review.
objections, Plaintiff argues that: (1) the ongoing infringing
sales of counterfeit goods results in immediate and
irreparable injury to Plaintiff; (2) the Hague Convention is
inapplicable because Defendants' addresses are not known
or obtainable; and (3) service by email is reasonably
calculated to reach Defendants because Plaintiff has recently
purchased infringing products from each Defendant's
merchant account. See Docket No. 15. The Court
addresses each in turn.
of the Federal Rules of Civil Procedure authorizes the Court
to issue a temporary restraining order without written or
oral notice to the adverse party 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 ...