Case Information
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON
IMAGINE MEDISPA, LLC,
f/k/a MEDICAL WEIGHT LOSS CLINIC
OF CHARLESTON, LLC,
and DAVID A. RUBIO,
Plaintiffs,
v. Civil Action No. 2:13-26923
TRANSFORMATIONS, INC.
a West Virginia Corporation,
formerly doing business as
Transformations Weight Loss &
Skin Clinic, Inc., formerly doing
Business as Bariatric Medicine
of Huntington, Inc.,
and LIZA ANTOINETTE FREDERICK, M.D.
a/k/a TONI GALBRAITH, M.D.,
and JOSHUA P. GALBRAITH,
Defendants.
MEMORANDUM OPINION & ORDER
Pending is the plaintiffs’ motion for a preliminary injunction, filed January 8, 2014. The court conducted a
hearing on the motion on February 6, 2014, at which there
appeared Scott H. Kaminski for the plaintiffs and Karen Tracy
McElhinny for the defendants.
I. Factual and Procedural Background A. The Complaint and Motion to Dismiss
This case arises out of a dispute between two competitors in the medical weight-loss and skin care industry,
each of which provides “highly similar goods and services in
overlapping geographic areas.” See Compl. ¶¶ 13-14. Plaintiff
Imagine Medispa, LLC (“Imagine”), a West Virginia corporation
with its principal place of business in Charleston, West
Virginia, provides “medical weight loss and skin care services .
. . . through the provision of diet drug therapies[,]
exercise[,] and through nutritional counseling.” Id. ¶¶ 1, 9,
10. Plaintiff David Rubio is a West Virginia resident and the
owner of Imagine. Id. ¶ 2. Transformations, Inc.
(“Transformations”) is a West Virginia corporation with its
principal place of business in South Charleston, West Virginia.
Id. ¶ 3. Like Imagine, Transformations also provides “medical
weight loss and skin care services . . . . through the provision
of diet drug therapies[,] exercise[,] and through nutritional
counseling.” Id. ¶¶ 11, 12. Defendant Joshua Galbraith is a
West Virginia resident and “an incorporator and officer of
Transformations.” Id. ¶ 5. Defendant Liza Antoinette
Frederick, M.D., is also a West Virginia resident, and was “an
incorporator” of Bariatric Medicine of Huntington, Inc.,
Transformations’ predecessor-in-interest. Id. ¶ 4. She is now
alleged to be involved in the operation of Transformations. Id.
Both Imagine and Transformations operate in southern West
Virginia. Id. ¶¶ 9, 11.
In their complaint, the plaintiffs contend that the defendants have engaged in a variety of unfair business
practices over the course of several years.
First, the plaintiffs allege that the defendants knowingly published false advertisements touting
Transformations’ competitive prices for certain services in 2010
and 2011. Specifically, they claim that, beginning in November
of 2010 and continuing throughout 2011, the defendants
distributed promotional materials and advertisements through
Valpak [1] claiming that Transformations was “West Virginia’s Lowest
Price Weight Loss & Skin Care Clinic.” Id. ¶¶ 15-16. In April
of 2011, the defendants distributed a coupon through Kroger
which similarly claimed that Transformations had the “Lowest
Prices in WV!”. Id. ¶¶ 17-18. Both advertisements were
distributed in interstate commerce and received by “thousands of
persons.” Id. ¶¶ 19-21. The plaintiffs contend, however, that
each quoted statement was “literally false,” id. ¶¶ 31-32; that
Transformations’ prices are, in fact, “not the lowest in West
Virginia,” id. ¶ 29; and that “Imagine’s prices for
substantially identical products and services are lower than the
prices offered by” Transformations, id. ¶ 30. In addition to
these specific advertisements, the plaintiffs also allege that
the defendants have “produced and caused to be aired false and
misleading television and radio advertisements concerning their
services,” id. ¶ 22; and that the defendants “falsely advertised
that they offered three weight loss drugs for $65.00 when in
fact two of the so-called drugs offered were merely an over-the-
counter nutritional supplement and a diuretic,” id. ¶ 26. The
complaint does not disclose when these advertisements were made,
or how the advertisement for the weight loss drugs was
distributed.
Second, the plaintiffs claim that the defendants engaged in fraudulent or misleading use of online social media
websites such as Facebook and Craigslist. See generally id. ¶¶
23-24. According to the complaint, the defendants created a
fictitious or misleading Facebook Profile using Rubio’s name.
Id. ¶ 23. The Profile falsely stated that Rubio was a former
employee of Imagine, and indicated that Rubio “liked”
Transformations. [2] Id. The plaintiffs assert that the defendants
also created a fictitious advertisement for a 2010 Chevrolet
Camaro that was posted on the online marketplace Craigslist.
The listing named Rubio as the seller and included Rubio’s
office telephone number, resulting in Rubio receiving “scores of
calls from individuals inquiring about [a] Camaro that [wa]s not
owned or for sale by” Rubio. [3] Id. ¶ 24.
Finally, the plaintiffs allege that the defendants “contacted Imagine employees in an effort to learn trade secrets
or other confidential information and/or to lure some of those
employees away,” id. ¶ 25, and also “falsely told Imagine’s
clients and potential clients that Imagine used unlicensed
doctors and had to change its name due to issues with the
authorities,” id. ¶ 27. [4]
Plaintiffs assert that the false advertisements and fictitious Facebook Profile have directed clients and potential
customers away from Imagine and towards Transformations, and
“lessen[ed] . . . the good will associated with Imagine’s goods
and services.” Id. ¶¶ 23, 34. They similarly contend that the
Craigslist advertisement was “clearly and intentionally designed
to “be harassing to [Rubio] and disruptive to his personal life
and professional business as owner of [Imagine]. Id. ¶ 24. On
October 26, 2013, they commenced this suit, charging the
defendants with false advertising and unfair practices in
violation of the Lanham Act, 15 U.S.C. § 1125(a) (Count I),
tortious interference with contract or business relationship
(Count II), defamation (Count III), and invasion of privacy
(Count IV).
The defendants moved to dismiss on December 20, 2013, arguing that the well-pleaded facts in the complaint failed to
state any claim upon which relief could be granted;
alternatively, they argued that the plaintiffs’ claims were
time-barred by the applicable statutes of limitation.
In response to the motion to dismiss, the plaintiffs introduced a number of new factual allegations and exhibits that
were not included in the complaint. They clarified, for
example, that Rubio first discovered the fictitious Facebook
Profile in his name sometime after June 12, 2013, and that he
first began receiving telephone calls regarding the 2010 Camaro
in October of 2013. Plaintiffs’ Opposition to Defendants’
Motion to Dismiss (“Pls.’ Opp’n”) at 2.
The plaintiffs also alleged, for the first time, that the defendants created a second fictitious Facebook Page under
the name “Imagine Medispa.” See id. at 3-4. They claim that
the fictitious Page improperly used Imagine’s trademark, and
that the defendants used the Page to fraudulently induce
Facebook members, including an Imagine employee named Amy
Lively, as well as Imagine patients, to “Like” Transformations’
Facebook Page. Specifically, the plaintiffs assert that the
defendants used the fictitious Page to send “friend requests,”
to Facebook members that, once accepted, added the recipients to
the list of “friends” affiliated with Transformations’ Facebook
Page. Id.
Although the fictitious Imagine Medispa Facebook Page apparently became inactive sometime on or after November 5,
2013, id., the plaintiffs claim that Rubio undertook to place a
disclaimer on Imagine’s “true” Facebook Page in order to resolve
any lingering confusion and to clarify that Imagine was a
distinct entity from Transformations.
The plaintiffs did not amend their complaint to include these new allegations.
B. The Motion for Injunctive Relief
On January 8, 2014, the plaintiffs moved for a preliminary injunction pursuant to Federal Rule of Civil
Procedure 65. They request an order “enjoining [d]efendants
from use of any [I]nternet based advertising or communications
related in any way to their business or [p]laintiffs’ business
or Rubio personally[.]” [5] The motion incorporates all of the
allegations discussed above, but, like the plaintiffs’ response
to the motion to dismiss, contains new factual pleadings, and
also appears to assert two new causes of action that were not
pled in the complaint. For example, the motion states that the
defendants’ actions “are a blatant attempt to circumvent the
Settlement Agreement entered between” the parties on June 12,
2013, “which agreement envisioned the parties ceasing activities
designed to impede the other’s ability to legally operate[.]” [6]
Plaintiffs’ Motion for Injunction (“Pls.’ Mot.”) ¶ 11.
The plaintiffs also claim that the defendants’ alleged conduct may have violated West Virginia Code § 61-3C-14a, which
makes it unlawful to use computers, cell phones, and electronic
communication devices to harass or abuse another person, and may
be contrary to West Virginia Code § 30-3-14(c), which permits
the West Virginia Board of Medicine to deny a medical license to
anyone who solicits patients through the use of fraud. Id. ¶¶
14-15.
The court will not consider the plaintiffs’ belated allegations that the defendants violated West Virginia Code §§
61-3C-14a and 30-3-14I. “The purpose of interim equitable
relief is to protect the movant, during the pendency of the
action, from being harmed or further harmed in the manner in
which the movant contends it was or will be harmed through the
illegality alleged in the complaint.” Omega World Travel, Inc.
v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997). As a
result, new claims unrelated to the allegations contained in the
complaint cannot serve as the basis for a preliminary
injunction. See, e.g., Devose v. Herrington, 42 F.3d 470, 471
(8th Cir. 1994) (per curiam) (“Although these new assertions
might support additional claims against the same [defendants],
they cannot provide the basis for a preliminary injunction[.]”);
Faust v. Cabral, No. 12-11020, 2013 WL 3933021, at *10 (D. Mass.
July 30, 2013); Pourkay v. City of Phila., No. 06-5539, 2009 WL
1795814, at *11 n.1 (E.D. Pa. June 23, 2009). Section 61-3C-14a
is a criminal statute. Section 30-3-14I authorizes the Board of
Medicine to withhold licenses from healthcare providers who
solicit patients through fraud. Neither statute is a tool
designed to permit businesses and their owners to pursue civil
claims for unfair or deceptive advertising and business
practices, defamation, or invasion of privacy. Accordingly,
because these new claims do not relate to the “illegality
alleged in the complaint,” they cannot form the basis for a
preliminary injunction. Cf. Omega World Travel, 111 F.3d at 16.
II. Standard of Review “A preliminary injunction is an extraordinary remedy afforded prior to trial at the discretion of the district court
that grants[,] . . . . on a temporary basis, the relief that can
be granted permanently after trial[.]” The Real Truth About
Obama, Inc. v. FEC (“Real Truth I”), 575 F.3d 342, 345 (4th Cir.
2009), vacated on other grounds, Citizens United v. FEC, 558
U.S. 310 (2010), and reissued as to Parts I & II, The Real Truth
About Obama, Inc. v. FEC, 607 F.3d 355 (4th Cir. 2010) (per
curiam). The party seeking the preliminary injunction must
demonstrate:
“[1] [T]hat he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”
Id. at 346 (quoting and citing Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008)). All four elements must
be established by “a clear showing” before the injunction will
issue. Id.; see also Winter, 555 U.S. at 23 (stating that a
preliminary injunction “may only be awarded upon a clear showing
that the plaintiff is entitled to such relief”).
III. Discussion According to the plaintiffs, they are entitled to injunctive relief because: the evidence establishes that the
defendants created the Craigslist advertisement and Facebook
pages in question; those advertisements were false and
misleading; the fictitious Facebook pages are directing the
public to Transformations’ services, causing irreparable harm to
Imagine; nothing “could possibly be more inequitable than
targeting a competitor’s clients and employees with false
information”; and the injunction is necessary to protect the
public from the false information being disseminated through
Facebook by the defendants. See Plaintiffs’ Reply to
Defendants’ Opposition to Plaintiffs’ Motion for Injunction
(“Pls.’ Reply”) at 2-3.
The defendants, for their part, insist that they are not responsible for any of the disputed Craigslist or Facebook
activities, and maintain that the plaintiffs have failed to
establish any of the four elements required under Winter and
Real Truth I.
A. Evidence Considered; Finding of Facts
Before issuing a decision, the court must state the factual findings or conclusions that support granting or denying
the requested injunctive relief. Fed. R. Civ. P. 52(a); see
also Blackwelder Furniture Co. v. Seilig Mfg. Co., Inc., 550
F.2d 189, 192 n.1 (4th Cir. 1977) (“We observe sympathetically
that Rules 52(a) and 65(d) require findings of fact, albeit
tentative.”). The party seeking the injunction bears the burden
of providing a sufficient factual basis by offering some proof
beyond the unverified allegations in the pleadings. See 11A
Charles Alan Wright et al., Federal Practice & Procedure § 2949
(2d ed. 1995) (“Evidence that goes beyond the unverified
allegations of the pleadings and motion papers must be presented
to support or oppose a motion for a preliminary injunction.”);
Palmer v. Braun, 155 F. Supp. 2d 1327, 1331 (M.D. Fla. 2001)
(same).
The Supreme Court has explained that a preliminary injunction, if granted, is customarily issued “on the basis of
procedures that are less formal and evidence that is less
complete than in a trial on the merits.” Univ. of Tex. v.
Camenisch, 451 U.S. 390, 395 (1981). As a result, the movant
may satisfy its burden by submitting affidavits and other
evidence that might otherwise be inadmissible under the Federal
Rules of Evidence. See, e.g., Kos Pharm., Inc. v. Andrx Corp.,
369 F.3d 700, 718-19 (3d Cir. 2004); Heiderman v. South Salt
Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003) (“The Federal
Rules of Evidence do not apply to preliminary injunction
hearings.”); Levi Strauss & Co. v. Sunrise Int’l Trading, Inc.,
51 F.3d 982, 985 (11th Cir. 1995) (“At the preliminary
injunction stage, a district court may rely on affidavits and
hearsay materials which would not be admissible evidence for a
permanent injunction . . . .”).
Statements contained in an uncontroverted affidavit may be accepted as true, Elrod v. Burns, 427 U.S. 347, 350 n.1
(1976) (“For purposes of our review . . . uncontroverted
affidavits filed in support of the motion for a preliminary
injunction are taken as true.”), “but if there are genuine
issues of material fact raised in opposition to a motion for a
preliminary injunction, an evidentiary hearing is required,”
Cobell v. Norton, 391 F.3d 251, 261 (D.C. Cir. 2004);
Blackwelder Furniture Co., 550 F.2d at 192 n.1 (noting that if
“everything turns on what happened and that is in sharp
dispute,” the court should ordinarily hold an evidentiary
hearing and require live testimony, rather than rely on the
parties’ submissions (quoting Semmes Motors, Inc. v. Ford Motor
Co., 429 F.2d 1197, 1204 (2d Cir. 1970))). Moreover, the weight
to be accorded affidavit testimony is within the discretion of
the court, and statements based on belief rather than personal
knowledge may be discounted. Federal Practice & Procedure
§ 2949 (collecting authority).
The plaintiffs’ motion is supported by several exhibits. Briefly summarized, those exhibits include: (1) the
Affidavit of David A. Rubio (“Rubio Aff.”), describing the
allegedly improper use of Facebook and Craigslist; (2) a screen-
shot of the advertisement for the 2010 Camaro posted to
Craigslist on October 17, 2013 (“Craigslist Ad”), listing David
Rubio as the seller; (3) an undated image, presumably captured
from Facebook, apparently indicating that Rubio “LOve[s]”
Transformations (“Exhibit 4”); (4) the Affidavit of Michael S.
Haid (“Haid Aff.”), stating that Haid received a friend request
from the fictitious Imagine Medispa Facebook Page that, once
accepted, caused Haid to become a friend of Transformations’
Facebook Page; (5) a screen-shot of the friend request allegedly
sent to Haid; (6) the affidavit of Melissa Bailey (“Bailey
Aff.”), stating that Bailey received friend requests from the
fictitious Rubio Profile and fictitious Imagine Medispa Page;
(7) the affidavit of Amy Lively (“Lively Aff.”), stating that
Lively received friend requests from the fictitious Imagine
Medispa Facebook Page; (8) a screen-shot depicting a Facebook
friend request from the allegedly fictitious Imagine Medispa
Page, and displaying Rubio and Transformations as “friends” (the
“Friend Request”); and (9) a collection of Facebook comments and
messages from unidentified individuals stating that they had
received friend requests from the fictitious Imagine Medispa
Page that caused them to be added as friends of Transformations
(the “Facebook Responses”).
The defendants have submitted two affidavits of their own. In the first, defendant Galbraith swears that neither he,
nor any employee or agent acting on behalf of Transformations,
created the fictitious Facebook pages or the Craigslist
advertisement. Affidavit of Joshua P. Galbraith (“Galbraith
Aff.”) at 2-3. In the second, defendant Frederick swears that
she has had no affiliation with Transformations since 2010 and
that she is not involved in any way with Transformations’
advertising or marketing activities, or Transformations’ use of
social media. Affidavit of Liza Antoinette Arceo (“Arceo Aff.”)
at 2.
Neither party offered any additional evidence at the February 6, 2014 hearing.
Based on the uncontroverted portions of the affidavits and other exhibits submitted in support of the plaintiffs’
motion, the court finds as follows:
1. Sometime between June 12, 2013 and October 26, 2013, a Facebook Profile under the name David Rubio was created by someone other than Rubio. Rubio Aff. ¶ 5. The fictitious profile stated that Rubio was a former Imagine employee, and indicated that Rubio “liked” Transformations’ Facebook Page. Id.
2. An advertisement for a 2010 Chevrolet Camaro was posted to Craigslist on or around October 17, 2013. Id. ¶ 6; see also Craigslist Ad. The advertisement listed Rubio as the seller and included Rubio’s telephone number. Rubio Aff. ¶ 6. Rubio received numerous telephone inquiries about the Camaro, and those calls disrupted his personal and professional life. Id.
3. Sometime in October 2013, a “false” Facebook Page under the name Imagine Medispa was created and began sending “friend requests” to Imagine employees and patients. See Rubio Aff. ¶ 8; Haid Aff. ¶ 4; Lively Aff. ¶¶ 2-4. The fictitious Imagine Medispa Page listed Transformations’ Facebook Page and the fictitious Rubio Profile as “friends.” Lively Aff. ¶¶ 3-4. When the contacted individuals accepted the “friend requests” from the fictitious Imagine Medispa Page, they were instead added as “friends” of the Transformations Page. Haid Aff. ¶¶ 4-5. Several individuals believed that Transformations was responsible for the fictitious Imagine Medispa Page. See Haid Aff. ¶ 8; see also Rubio Aff. ¶ 11 (“I am not aware of any other person or business entity other than Transformations . . . that have . . . reason to create the . . . false and misleading Facebook pages[.]”).
None of the affiants testify to having personal knowledge that the defendants created the misleading Facebook
pages or the Craigslist advertisement, and, as noted, the
defendants strenuously deny any responsibility. See Galbraith
Aff. at 2-3; Arceo Aff. at 2; Defendants’ Opposition to
Plaintiffs’ Motion for Injunction (“Defs.’ Opp’n”) at 3
(“Plaintiffs’ assertions concerning Facebook and Craigslist
postings are blatantly false.”); id. (“Defendants never sent
Facebook friend requests under the guise of another business or
person. Defendants are unable to cease conduct that they are
not engaging in.”); id. at 12 (“Plaintiffs summarily claim that
the alleged Craigslist advertisement was placed by Defendants,
but they offer no factual support that would enable this [c]ourt
or a finder of fact to determine that claim’s veracity. In
fact, Defendants did not create a false Craigslist
advertisement.”). As a result, and in light of the fact that
the parties have not submitted any additional evidence or
testimony, the court cannot find at this time that the
defendants created the fictitious Facebook pages or the
Craigslist advertisement. Cf. Cobell, 391 F.3d at 261 (“[W]hen
a court must make credibility determinations to resolve key
factual disputes in favor of the nonmoving party, it is an abuse
of discretion for the court to settle the question on the basis
of documents alone, without an evidentiary hearing.”).
Moreover, although the plaintiffs allege in their complaint that the defendants’ conduct has directed clients and
potential customers away from Imagine and towards
Transformations, and “lessen[ed] . . . the good will associated
with Imagine’s goods and services,” Compl. ¶¶ 23, 34, they have
not offered any evidence to suggest that Imagine has suffered a
loss of clients or revenue as a result of the defendants’
conduct.
B. Analysis
Based on the foregoing finding of facts, the plaintiffs are not entitled to injunctive relief because they
cannot clearly establish that they are likely to succeed on the
merits of their claim, and cannot establish that they are likely
to suffer irreparable harm in the absence of preliminary relief.
1. Likelihood of Success In a separate memorandum opinion and order issued this day, the court granted in-part and denied in-part the
defendants’ motion to dismiss. Specifically, the court ruled
that the plaintiffs could not state a false advertising claim
under the Lanham Act, but had sufficiently alleged a false
endorsement Lanham Act claim. The court also concluded that
aspects of the plaintiffs’ tortious interference and defamation
claims survived the motion to dismiss, and that some variants of
the plaintiffs’ invasion of privacy claim were also sufficient
to state a claim.
Factual allegations that are sufficient to survive a motion to dismiss do not, however, necessarily entitle a party
to injunctive relief. Rather, to obtain a preliminary
injunction, the plaintiffs must first “make a clear showing that
[they] will likely succeed on the merits at trial.” Real Truth
I, 575 F.2d at 346-47. Merely showing that “grave or serious
questions are presented for litigation” will not suffice. Id.
In this case, the evidence submitted by the parties reveals a key factual dispute concerning the identity of the
party responsible for the creation of the fictitious Facebook
Pages and Craigslist advertisement. As noted, some of the
circumstantial evidence presented by the plaintiffs led several
individuals, largely associated with the plaintiffs, to believe
that the defendants were responsible for the fictitious Facebook
pages, but none of the plaintiffs’ affiants testify to having
any direct knowledge that the defendants are responsible, and
the defendants themselves strenuously deny any involvement. At
best, the evidence adduced thus far shows only that “grave or
serious questions” regarding liability “are presented for
litigation.” As a result, the plaintiffs have not clearly
established that they are likely to succeed on the merits of
their claims. Cf. Marshall Durbin Farms, Inc. v. Nat’l Farmers
Org., Inc., 446 F.2d 353, 357 (5th Cir. 1971) (stating that
district courts show an “appropriate reluctance” to issue
preliminary injunctions when “the moving party substantiates his
side of the factual dispute on information and belief.”);
Cobell, 391 F.3d at 261 (noting that affidavit evidence may be
insufficient to support a preliminary injunction when key
factual determinations turn on the credibility of the parties).
2. Irreparable Harm In light of the plaintiffs’ failure to meet their burden of demonstrating likelihood of success on the merits, the
court need not resolve “the parties’ arguments concerning the
remaining three [Real Truth I] factors.” Dewhurst v. Century
Aluminum Co., 731 F. Supp. 2d 506, 521 n.23 (S.D. W. Va. 2010),
aff’d, 649 F.3d 287 (4th Cir. 2011). Nevertheless, the
plaintiffs’ failure to show a likelihood of irreparable harm
further undermines their request for preliminary relief.
As a general matter, temporary, episodic injuries that can be compensated by the award of money damages are not
considered irreparable harms. A Helping Hand, LLC v. Baltimore
Cnty., 355 F. App’x 773, 776 (4th Cir. 2009) (holding that cost
of relocation “does not constitute irreparable (rather than
temporary) injury,” because “money damages could compensate any
cost” of relocation (citing Taylor v. Resolution Trust Corp., 56
F.3d 1497, 1507 (D.C. Cir. 1995) (“[I]n the absence of special
circumstances, . . . recoverable economic losses are not
considered irreparable.”))); Hughes Network Sys., Inc. v.
InterDigital Commc’ns Corp., 17 F.3d 691, 694 (4th Cir. 1994)
(“Monetary relief typically may be granted as easily at judgment
as at a preliminary injunction hearing, and a party does not
normally suffer irreparable harm simply because it has to win a
final judgment on the merits to obtain monetary relief.”).
In their motion for injunctive relief, the plaintiffs admit that the Imagine Medispa Facebook Page became inactive on
or after November 5, 2013, Pls.’ Mot. at 3, suggesting that the
fictitious Imagine Medispa Facebook Page is no longer directing
the public to Transformations’ services. At the hearing,
counsel for the plaintiffs clarified that the fictitious Rubio
Facebook Profile has also been inactive since early November
2013. Moreover, the plaintiffs have not submitted any evidence
indicating that Imagine has suffered a loss of clients or
revenue at any point as a result of the fictitious Facebook
Pages. In fact, at the hearing, plaintiffs’ counsel admitted
that, although some Imagine clients had “liked” the
Transformations Facebook Page, none of those clients had stopped
using Imagine’s services. Alternatively, plaintiffs’ counsel
argued at the hearing that the inactive Facebook Pages may be
causing ongoing confusion in the market about the relationship
between Imagine and Transformations, but the plaintiffs have not
submitted any evidence of ongoing confusion in support of their
motion. Rather, the evidence submitted thus far suggests that
the Imagine clients who received friend requests from the
fictitious Imagine Medispa Facebook Page recognized the
deception and either informed Rubio, see Rubio Aff. ¶ 10
(“[S]everal patients . . . notified me that they had received
“Friend” requests from the false Facebook page.”), or blamed
Transformations, see Facebook Responses (“I would like to know
why there is a fake Imagine Medispa page ya made that adds us to
your group? Kinda tacky if you ask me.”).
In sum, the fictitious Facebook Pages appear to have been inactive for several months, and the evidence adduced thus
far does not indicate that the plaintiffs will continue to
suffer from the loss of clients or from ongoing confusion in the
marketplace in the absence of injunctive relief.
John T. Copenhaver, Jr.United States District Judge
IV. Conclusion
Accordingly, because the plaintiffs have not shown a likelihood of success on the merits, and in addition, have not
shown a likelihood of irreparable harm, the motion for
preliminary injunctive relief must be, and is, denied.
The Clerk is directed to forward copies of this memorandum opinion and order to all counsel of record and any
unrepresented parties. DATED: February 26, 2014
[1] Valpak is a “direct marketing” company that mails coupons to households throughout the United States. See About Valpak, http://www.coxtarget.com/corp/about.html.
[2] The complaint does not explain when the fictitious profile was created.
[3] Later in the complaint, the plaintiffs allege that the advertisement caused “unknown, unsolicited individuals to call [Rubio’s] personal home number (which is publicly listed) at all hours of the day and night inquiring about [the] Camaro[.]” Compl. ¶ 59. It is unclear whether the advertisement listed Rubio’s home or office telephone number.
[4] In Paragraph 28 of the complaint, the plaintiffs claim that “[b]y the business arrangements herein, defendant Frederick is[,] and continues to be[,] in violation of an Amended Consent Order entered on June 7, 2013 by the West Virginia Board of Medicine.” The referenced consent order was not attached to the complaint, and the complaint provided no additional context for this assertion.
[5] Despite the apparent breadth of this language, the plaintiffs later clarified that they were not seeking to “enjoin [d]efendants from all [I]nternet advertising,” but, rather, “only seek to enjoin [d]efendants from engaging in . . . advertising and solicitation that . . . misinforms the public and intentionally misdirects the public to [d]efendants’ website by falsely posing as [p]laintiff.” Plaintiffs’ Memorandum of Law in Reply to Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion for Injunction (“Pls.’ Reply”) at 2.
[6] Under the settlement agreement, which was attached as an exhibit to the plaintiffs’ motion, Transformations and Imagine each agreed to withdraw all “requests for affected party status and requests for administrative hearing before the [West Virginia Health Care] Authority relating to certificate of need applications and letters of intent” that were then-pending. The parties also agreed not to revive their requests after the settlement agreement was executed. As Transformations has noted, both parties promised to keep the settlement agreement confidential when it was executed.