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Viahart, LLC v. Does 1-54

United States District Court, E.D. Texas, Tyler Division

May 15, 2019

VIAHART, LLC, Plaintiff,
DOES 1-54, Defendant.



         Before 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 ADOPTED.

         I. Standard of Review and Reviewability

         The 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 Automobile Assn, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).

         As part 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 is accepted.


         II. Additional Evidence

         As an 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).

         The 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.

         III. Plaintiff's Objections

         In its 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.

         Rule 65 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 ...

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