ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER AND DISMISSING CASE
THIS CAUSE comes before the Court upon Plaintiffs’ Ex Parte Emergency Motion for Order to Show Cause on Motion for Preliminary Injunction with Temporary Restraining Order (“TRO”) and Order of Seizure, filed May 21, 1998. Defendants, as they are unknown and have not been served, were unable to file a response. The Court entertained oral argument from Plaintiffs’ counsel on May 21, 1998. At the conclusion of the TRO hearing, the Court announced its decision denying Plaintiff’s motion and dismissing the case in open court. The dаy following the Court’s announcement of its ruling, Plaintiff sought and obtained a TRO from the U.S. District Court for the Middle District of Florida, prohibiting unnamed parties from selling souvenir merchandise in Florida, South Carolina, and North Carolina.
Factual Background
Plaintiffs are rock musicians and the companies licensed to sell their souvenir merchandise. Plaintiffs Plant and Page, former members of the rock and roll band Led Zeppelin, are currently on a nationwide music tour. As well as owning the intellectual property rights to their own names and likenesses, Plant and Page are co-owners of the Led Zeppelin trademark. Plaintiffs seek a nationwide injunction directed at as yet unknown “bootleggers” who sell t-shirts and souvenir items bearing Plant and Page likenesses or the Led Zeppelin logo. Plaintiffs ask this Court to authorize the U.S. Marshal or other law enforcement authorities to seize and impound any apparently infringing merchandise sold within a twenty-five mile radius of Page/Plant concerts.
This “emergency” motion was filed on Thursday, March 21, 1998, at 10:16 a.m. Plaintiffs’ counsel requested that the motion be ruled upon that same day because the Page/Plant concert was scheduled for Friday, March 22, 1998. The Court duly scheduled oral argument for 1:15 p.m. The Motion, Complaint, and supporting legal memorandum and exhibits total 297 pages.
Discussion
Initially, the Court must express its serious displeasure with the method in which Plaintiffs and Plaintiffs’ counsel chose to litigate this case. First, Plaintiffs elected to file their ease the day before the concert date, creating an artificial air of emergency. Plaintiffs’ counsel indicated at oral argument that Plaintiffs had known of their plans to perform in Miami for months, and Plaintiffs’ counsel had been retained for the purposes of filing this case weeks before the case was filed. Nonetheless, Plaintiffs expected this Court to read all 297 pages of documentation, entertain oral argumеnt, and sign their proposed show cause order in a matter of hours. These time restraints made it unlikely that the Court would have time to conduct legal research to determine if any published cases addressed the various problems presented when a private plaintiff petitions a court ex parte to engage the police powers of the U.S. government against unknown and unidentified individuals. In a similar published rock
I am somewhat disturbed about the timing of the plaintiffs request. The suit was filed on December 1, and the concert is scheduled for December 7. The short time between the two events contributed to an aura of emergency to this proceeding that should not have been necessary.... The [musical group] and its souvenir hawkеrs knew they were going to be here over two months ago. They could have filed their lawsuit at that time and requested an orderly placement on the calendar a week or two in advance of the concert date.
Brockum Int'l, Inc. v. Various John Does,
Moreover, given the fact that Plaintiffs deliberately created their own “emergency” situation and given the fact that the unnamed and unserved Defendants could not possibly come to Court and defend the adverse position, one would think that Plaintiffs’ counsel would be especially vigilant about presenting a full, fair, and accurate picture of the state of the law governing the case. Unfortunately, it appears that Plaintiffs did just the opposite. Perhaps believing that the Court would not have enough time to do its own research, Plaintiffs failed to cite any of the published cases on these rock concert bootleg injunctions. The Court found four published cases and an ALR report addressing the subject of the propriety of enjoining unidentified bootleggers at rock concerts.
See Brockum Co. v. Various John Does,
While only some of the cases are adverse to Plaintiffs’ position and the issue of the propriety of these types of injunctions may be characterized as fairly debatable, Plaintiffs attempted to lead the Court to believe that no debate existed at all. Before even reading the published ease law on the issue, it appeared to this Court that obtaining an ex parte injunction against unknown individuals who had not yet engaged in any actionable conduct posed serious jurisdictional and justi-ciability problems. Plaintiffs’ brief does not address the critical issues of jurisdiction or justiciability or attempt in any way to argue through reason and precedent that this Court has jurisdiction and that Plaintiffs’ action involves a “case or controversy.” Rather, Plaintiffs have skirted the issues and directed the Court’s attention only to unpublished seizure orders that fail to discuss either justiciability or jurisdiction. 1
When the Court read thе relevant published cases, its instincts were confirmed: Several raise the serious jurisdictional and justiciability problems inherent in issuing an injunction of this type.
See, e.g., Brockum, Co.,
Counsel also denied knowledge of two decisions ... in which district court judges expressed serious concerns as to concert tour bootleg merchandise injunction actions .... In plaintiffs 21-page memorandum, nine districts are reported to have granted the relief requested. No arguments, reasons, concerns or authority to the contrary are noted....
[Particularly ... in an ex parte proceeding ... counsel must be vigilant in discharging their duties as officers of the court, including articulating correct statements of the law, disclosing adverse authority, and avoiding misuse of court orders.
In the case at bar, not only did Plaintiffs fail to disclose any adverse authority, but they also suggest in their brief that granting the requested relief is routine, stating that “[djistrict courts now grant what are generally referred to as national seizure orders.” (Pls.’ Mem. at 15). Plaintiffs go so far as to imply that the unknown Defendants chose not to challenge this action, stating that they are “loath to appear.” Id. at 16.
At oral argument, the Court asked Plaintiffs’ counsel whether he knew of any cases denying injunctions of this type, and if so, why he did not disclose them. Counsel responded that three judges of the Southern District of Florida had granted such injunctions, but that he had “heard” from a lawyer friend that there may have been such a ease denying injunctive relief. He emphasized, however, that he had never personally been denied such an injunction and could not direct the Court’s attention to a single ease in which such an injunction was denied. Plaintiffs’ counsel thus contended that he was not obligated to disclose the adverse authority because he was not personally involved in those adverse cases. This Court’s humble understanding of the ethical obligation of attorneys, however, is that they must disclose adverse case authority whether or not they are personally involved in the adverse cases. Otherwise, the majority of attorneys would be exempt from the requirement of citing the relevant Supreme Court case law on a given legal issue. While the Court can certainly understand an attorney’s desire to reach a resolution most favorable to his client, higher than the requirements of zealous advocacy are the obligations of truth, honesty, and ethical virtue. As Justice Stevens observed in
Mallard v. U.S. Dist. Ct. for the So. Dist. of Iowa,
‘Membership in the bar is a privilege burdened with conditions.’ The [lawyer] was received into that ancient fellowship for something more than private gain. He became an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.
(quoting Justice Cardozo in
People ex rel. Karlin v. Culkin,
That being said, the Court will turn to whether the law permits Plaintiffs to obtain ex parte equitable relief to prevent unknown parties from engaging in what might be illegal behavior in the future. Although other courts have granted such relief, this Court is convinced that doing so would neither comport with federal procedural rules nor the dictates of justice. First, Plaintiffs have not made a sufficient showing that the Court has personal jurisdiction over the unknown Defendants. Plaintiffs have not served Defendants with process, and have elected not to do so until Defendants’ property has already been seized. The Court initially notes that although plaintiffs are permitted to use fictitious names in their complaints, see
Bivens,
Moreover, in order to survive dismissal for lack of jurisdiction, Plaintiffs must “demonstrate[ ] that they have engaged in a reasonably diligent search to identify the unknown defendants [and] ... inform[ ] the Court , of any .efforts they have taken to provide these -individuals with constructive notice.”
Boyd v. Arizona State Bd. of Dental Examiners,
Case No. Civ. A. 88-1560-MA,
Plaintiffs simply assert that the use of a fictitious name is proper because “[s]aid parties cannot be identified until they actually appear at said concerts.” (Pls. Em. Ex Parte Mot. for Ord. to Show Cause, at 2). In the very same paragraph, however, Plaintiffs state that, unless enjoined, these individuals will “travel[ ] on to the next concert” and sell their merchandise. This cleаrly indicates that the same individuals follow the band from concert to concert, selling their wares. Plaintiffs give no explanation as to why they are unable to obtain the identities of these individuals. Indeed, Plaintiffs do not indicate that they have even ever attempted to ascertain the identity of these individuals. This Court declines to suspend time-honored procedural rules simply because Plaintiffs did not wish to expend a modest amount of their ample resources to do a routine preliminary factual investigation before bringing suit in this federal Court.
See Glaros v. Perse,
In addition, Plaintiffs’ ease must fail for lack of justiciability. As the Second Circuit observed in
Heldman v. Sobol,
Federal courts may decide only actual cases and controversies. See U.S. Const. art. III, § 2. The parameters of the ease or controversy limitation emerge from the cluster of justiciability doctrines—doctrines that incorporate concerns about the proper role of the judiciary in a democratic society and the need tо assure an adversarial presentation of the issues.
At this point, plaintiffs have no adversaries in this Court. This proceeding has been wholly ex parte. Although the lack of actual defendants has apparently not posed an insurmountable barrier to preliminary injunctive relief in at least sixteen similar federal district court cases, this Court is not so sanguine in an ex parte proceeding. While plaintiffs take comfort in the fact that in those cases there is usually no challenge to the ex parte relief granted by the Courts; in this Court’s view, the absence of challenges may simply beg the questiоn of whether the proceedings are truly adversary proceedings....
Under these circumstances, this Court doubts “... the existence of a sufficient adversary interest to stimulate the parties to a full presentation of the facts and arguments, which in our adversary system is available from the parties.” At this time, the instant action is not a justiciable one for purposes of ex parte injunctive relief.
In our uniquely American governmental system of cheeks and balаnces, courts play a necessarily limited role. They do not create the law, and they do not execute the law. Rather, courts exist solely to resolve disputes between actual parties involved in actual controversies. They may not issue advisory opinions, and they may not address contingeneies or hypothetical situations. The doctrine of justiciability grows out of this recognition that the role of courts is limited.
See Flast v. Cohen,
Article III of the United States Constitution requires that federal courts address only “cases and controversies.” The case and controversy doctrine places a dual limitation upon federal courts which is termed “justiciability.” Justiciability, then, seeks to ensure that federal courts address only questions presented in an adversarial context and that the judiciary will not encroach upon the powers of other branches of government.
Graham v. Butterworth, 5 F.3d 496, 498-99 (11th Cir.1993) (citations omitted). The relief sought by Plaintiffs extends far beyond the powers of this one federal district Court. Plaintiffs ask this Court first to create a law authorizing the U.S. Marshal tо seize on sight any merchandise that reasonably appears to the Marshal to infringe on a trademark and second to execute the law by ordering the Marshal to seize the merchandise. For this reason, Judge Clemon concluded:
Basically, plaintiffs seek through this Court a mechanism under which to seize and impound the allegedly bootleg merchandise to be sold by the unnamed defendants ... It would appear, therefore, that this controversy is one whiсh may be more appropriately addressed to the legislative or executive branches.
Rock Tours, Ltd.,
Finally, policy consideration militate against granting injunctive relief. The public
Plaintiff seeks a [seizure] order without notice to any defendant, and before it has even effected service of its complaint on all defendants. Indeed, plaintiff has not even identified all of the potentially numerous defendants to whom this sweeping order would apply other than by the designation “Various John Does and Jane Does, and ABC Comрanies.” Even on the surface, the order requested by plaintiff would appear to invite catastrophe. It promises a nightmare of jurisdictional flaws, deprivations of due process, and windfall litigation that could ensue for years to come. This is not even to mention the physical spectacle of the United States Marshall Service, which is already greatly overburdened in its work, in the company of paid thugs (euphemistically styled “security representatives”) roaming the streets of Washington to confiscate the merchandise of small businessmen and other licensed vendors who sell their wares in the open air. In short, the relief plaintiff seeks would open a veritable Pandora’s box of problems that this court cannot even begin to imagine now.
Conclusion
The law should reward reason over haste and adherence to fair procedure over sweeping judicial power. The Court recognizes thаt bootlegging is a social problem; however, federal litigation is not a cure-all, and judicial authority may not be invoked every time a private litigant wishes to obtain a quick fix to what he perceives to be society’s ailments.
See Brockum Co.,
Accordingly, after careful review of the record, and the Court being otherwise fully advised, it is
ORDERED and ADJUDGED that Plaintiffs’ Ex Parte Emergency Motion for Order to Show Cause on Motion for Preliminary Injunction with Temporary Restraining Order and Order of Seizure be, and the same is hereby, DENIED. It is further
Notes
. One of the unpublished cases attached to Plaintiffs' counsel's affidavit briefly discusses whether a plaintiff may sue a defendant with a fictitious name. The court, relying on the authority of
Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics,
. In addition, the Court seriously doubts that Plaintiffs have standing to pursue this case. "To qualify as a party with standing to litigate, a person must show, first and foremost, 'an invasion of a legally protected interest’ that is 'concrete and particularized’ and 'actual or imminent.’ ”
Arizonans for Official English v. Arizona,