9-Month Delay in Ukrainian Businessman’s Submitting Case Cuts Towards Issuing Emergency Order, Regardless of Invasion

From Kovalenko v. Epik Holdings Inc., determined right now by Choose Tana Lin (W.D. Wash.):

This motion arises out of Plaintiff’s motion for defamation and invasion of privateness in opposition to Defendants Epik Holdings, Inc. and Anonymize, Inc. Plaintiff is a Ukrainian businessman engaged in worldwide buying and selling of coal merchandise. In January 2022, an internet site referred to as 368.media revealed an article representing that, partially, Plaintiff was concerned in unlawful schemes to ship coal into Ukraine with the help of corrupt Russian and Ukrainian officers, incomes revenue margins that resulted within the overpayment for coal and electrical energy by customers. 368.media eliminated the article on the request of Plaintiff’s counsel. In the identical month, one other web site, www.weeklynewsreview.com, additionally revealed the article. Plaintiff was capable of safe a courtroom order in Cyprus directing that the second article be deleted, which was subsequently accomplished.

On or round January 29, 2022, one more web site, www.warsawpoint.com, revealed the article (the “Third Article”). Plaintiff’s counsel emailed the web site on January 29, demanding that it take away the Third Article. The next day, Plaintiff’s counsel obtained a response containing a hyperlink to an encrypted and self-destructing message, which demanded a cost of 0.1 bitcoin for the removing of the Third Article. Whereas Plaintiff has not been capable of determine the proprietor of www.warsawpoint.com, Plaintiff believes that Defendant Epik owns the area for the web site, that Defendant Anonymize offers providers to guard the id of the web site’s proprietor, and that the 2 Defendants collectively function the web site.

On September 23, 2022, Plaintiff’s counsel emailed Epik and Anonymize demanding the speedy removing of the Third Article and stating that the January 30 message constituted illegal blackmail. On September 26, a Buyer Success Consultant responded to the e-mail by instructing that abuse complaints to Epik ought to be submitted to a unique channel, and the Buyer Success Consultant additional notified Plaintiff’s counsel that the “ticket” had been marked as resolved. Plaintiff’s counsel by no means obtained a response from Anonymize.

Plaintiff filed this motion on November 4. Plaintiff additionally filed the Movement, searching for a TRO and preliminary injunction to enjoin Defendants to take away the Third Article. Plaintiff requests oral argument and an expedited listening to. Summons was issued later the identical day, and no Defendant seems to have been served or have appeared on this motion….

Importantly, on condition that the U.S. federal jurisprudence “runs counter to the notion of courtroom motion taken earlier than cheap discover and a chance to be heard has been granted each side of a dispute … , courts have acknowledged only a few circumstances justifying the issuance of

an ex parte TRO.” … [T]he Courtroom can not grant Plaintiff’s request for a TRO with out both satisfactory discover to Defendants or an satisfactory foundation for issuing an ex parte TRO earlier than Defendants will be heard. Plaintiff has did not make the requisite exhibiting of both factor….

First, Plaintiff reveals no proof that any discover was offered to Defendants. This motion was filed on November 4, 2022, together with the Movement, and summons was issued later that very same day. The Movement, and its supporting paperwork, include no illustration, proof, and even point out of discover to Defendants, which ought to have occurred “earlier than or contemporaneously with the submitting of the movement,” LCR [Loc. Civ. R.] 65(b)(1), or why such discover couldn’t have been offered. No Defendant has appeared within the motion, and there’s no different proof of any Defendant’s consciousness of this motion, a lot much less the Movement.

Second, Plaintiff fails to justify this lack of discover. Plaintiff’s counsel has not “certifie[d] in writing any efforts made to provide discover and the the explanation why it shouldn’t be required,” Fed. R. Civ. P. 65(b)(1)(B), and the Courtroom finds no such justification from the file upon evaluate.

Importantly, there is no such thing as a proof of any speedy damage that Plaintiff will undergo earlier than Defendants will be offered discover. Certainly, Plaintiff discovered of the Third Article’s existence in late January 2022, emailed the web site publishing the Third Article on January 29, and obtained a response the next day. Plaintiff then waited over 9 months to file this motion and the Movement, searching for a TRO from this Courtroom. Plaintiff explains that “numerous occasions, together with the Russian invasion of Ukraine, have delayed his skill to maneuver for injunctive reduction,” and that he prioritized the influence of the invasion on his household, pals, and colleagues over “his personal private agenda.” [According to the Complaint, “Kovalenko is a Ukrainian national who currently resides in Monaco.” -EV] Whereas the Courtroom appreciates and doesn’t intend to attenuate the disruption and influence that the invasion has had on Plaintiff’s life, Plaintiff’s personal nine-month delay nonetheless demonstrates that there is no such thing as a hazard of speedy damage ample to justify an ex parte TRO right here. At most, Plaintiff solely alleges a continuation of accidents he has already suffered, or a speculative damage of a direct lack of enterprise or potential purchasers. This isn’t ample.

Whereas the Courtroom is sympathetic to Plaintiff’s plight and anxious concerning the January 30, 2022 demand, Plaintiff has not proven that he has offered Defendants with satisfactory discover and alternative to reply, nor that he’s entitled to an ex parte TRO with out discover. Plaintiff’s request for a TRO is subsequently denied with out prejudice. Nonetheless, the Courtroom is ready to contemplate Plaintiff’s request for a preliminary injunction as soon as Defendants are supplied with satisfactory discover and alternative to reply….