CAUSE NO. CC-10-08658-E FERNANDO ROSALES AND § INTHE COUNTY COURT AT LAW INITIATIVE PARTNERS, LLC, D/B/A. § LOST SOCIETY, § 3 § = Plaintiffs § ey : 8 3 v. § NO.5 § = § 3 AVIS. ADELMAN, BARKINGDOGS.ORG, § nN AND DALLAS CREATIVE, INC., § a § Defendants. 8 DALLAS COUNTY, TEXAS DEFENDANTS’ BRIEF IN OPPOSITION TO. PLAINTIFFS’ AP) ‘EMPORARY IN. ICTIO! Defendants Avi S. Adelman, Barkingdogs.org, and Dallas Creative (collectively, “Defendants” file this Brief in Opposition to Plaintiffs’ Application for Temporary Injunction and respectfully show the Court the following: I. INTRODUCTION Plaintiffs Femando Rosales and Initiative Partners, LLC (collectively, “Plaintiffs”) ask this Court for a temporary injunction (1) prohibiting Defendants from publishing certain content on a weblog and (2) compelling Defendants to remove content already published on the weblog. See Pet. at {| 49-50. The former would constitute a prior restraint on speech, which is unconstitutional under the Texas and United States Constitutions. The latter would constitute an impermissible mandatory injunction that would extend beyond the status quo. Additionally, Plaintiffs cannot satisfy their burden to produce evidence of a probable right to relief, irreparable injury, and an inadequate remedy at law. For all of these reasons, the Court should deny Plaintiffs’ application for temporary injunction. ‘DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFFS? Page 1 APPLICATION FOR TEMPORARY INJUNCTIONIL ARGUMENT & AUTHORITIES To be entitled to a temporary injunction, an applicant must plead and prove (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury if the injunction is not granted. Butnaru v, Ford Motor Co., 84 S.W.34 198, 204 (Tex. 2002). “In general, a temporary injunction is an extraordinary remedy and does not issue as a matter of right.” Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993). Thus, a party secking a temporary injunction has the burden of proof and must produce evidence clearly establishing entitlement to injunctive relief. Bay Fin. Savings Bank, FSB v. Brown, 142 8.W.3d 586, 589-90 (Tex. App-—Texarkana 2004, no pet.) (citing Millwrights Local Union No. 2484 v, Rust Eng’g Co., 433 S.W.2d 683, 686-87 (Tex. 1968)); see TEX. R. Cv. P. 680. Because Plaintiffs have not met this high threshold of proof, the Court should deny Plaintiffs’ application for temporary injunction. A. Plaintiffs Seek a Prior Restraint on Future Postings in Violation of the Texas and United States Constitutions. First, Plaintiffs ask the Court to enjoin Defendants “from publishing false defamatory statements concerning Plaintiffs.” Pet. at § 50, Because this request calls upon the Court to enjoin future speech, it constitutes an unconstitutional prior restraint. “An administrative or judicial order that forbids certain communications before they occur constitutes a prior restraint.” Marketshare Telecom, L.L.C. v. Ericsson, Inc., 198 S.W.3d 908, 917 (Tex. App._—Dallas 2006, no pet.) (citing Alexander v. United States, 509 U.S. $44, 550 (1993)).. Under well-established Texas law, a prior restraint on speech or expression is presumptively unconstitutional. Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992); see Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex. 1983) (holding unconstitutional a prior restraint on free speech in the absence of proof of a direct threat of danger); Ex Parte Tucker, 220 S.W. 75, 76 (Tex. 1920) (“It has never been the theory of free institutions that the citizen could say only what courts DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFFS? Page 2 APPLICATION FOR TEMPORARY INJUNCTIONor legislatures might license him to say, or that his sentiments on any subject or concerning any person should be supervised before he could utter them.”). Likewise, prior restraints presumptively violate the United States Constitution, Nebraska Press Ass'n v, Stuart, 427 US. 539, 542-43 (1976). To overcome the heavy presumption of unconstitutionality, a party seeking a prior restraint must make a compelling case of necessity, generally by showing some threat of danger in the absence of injunctive relief. See Hajek, 647 S.W.2d at 255 (“The language enjoined here evoked no threat of danger to anyone and, therefore, may not be subject to the prior restraint of a temporary injunction.” Here, the Court should deny Plaintiffs’ application for temporary injunction because Plaintiffs cannot overcome the presumption of unconstitutionality. Plaintiffs have cited no legal authority and offered no evidence to support their request for a prior restraint. As a matter of law, Plaintiffs cannot overcome the presumption of unconstitutionality because “Texas courts will not grant injunctive relief in defamation or business disparagement actions if the language enjoined evokes no threat of danger to anyone, even though the injury suffered often cannot easily be reduced to specific damages.” Tex. Mut. Ins. Co. v. Surety Bank, N.A., 156 $.W.3d 125, 129 (Tex. App.—Fort Worth 2005, no pet.) (compiling cases); see Dallas Oil & Gas, Inc. v. Mouer, $33 S.W.2d 70, 74 (Tex. Civ. App.—Dallas 1976, no writ) (“[l]injunctive relief is not available as a prior restraint of defamatory publications, however false and however damaging.”). Thus, even false and defamatory statements are constitutionally protected from prior restraint.! Tex. Mut, Ins. Co., 156 8.W.3d at 129. The speech at issue here may not be subject to the unconstitutional prior restraint of a temporary injunction. " Defendants deny that the speech at issue here is actionable under Texas defamation law. However, whether the statements in question are defamatory i irrelevant under the constitutional analysis applied in prior restraint cases, DEFENDANTS" BRIEF IN OPPOSITION TO PLAINTIFFS? Page 3 APPLICATION FOR TEMPORARY INJUNCTIONB, Plaintiffs Request an Improper Mandatory Temporary Injunction Compelling the Removal of Postings That Would Extend Beyond the Status Quo. Next, Plaintiffs assert that Defendants should be “ordered to delete and remove all defamatory statements conceming [Plaintifis.” Pet. at 50. This request is improper for two additional reasons: (1) it asks the Court for relief beyond preservation of the status quo, and (2) it seeks a mandatory injunction without demonstrating the requisite extreme hardship. First, the purpose of a temporary injunction is to preserve the status quo. Walling, 863 S.W.2d at 58, ‘The Texas Supreme Court has defined the status quo as “the last, actual, peaceable, non-contested status which preceded the pending controversy.” In re Newton, 146 8.W.3d 648, 651 (Tex. 2004). Here, the Court should deny Plaintiffs’ application for temporary injunction because Plaintiffs seek relief beyond preservation of the status quo. Specifically, Plaintiffs ask the Court to immediately determine that Defendants’ statements were defamatory and then to order the statements removed from Defendants’ weblog. This request is improper because it would require the Court to make a legal determination reserved for trial and then order affirmative conduct well beyond the status quo, See id. (“{NJeither should conduct be adjudicated illegal based merely on pleadings and a brief, non-evidentiary TRO hearing when substantial rights are involved and the issues are far from clear. ; Janus Films, Inc, v. City of Fort Worth, 358 S.W.2d 589, 590 (Tex. 1962) (affirming denial of temporary injunction until the issue of whether certain content was obscene could be determined on the merits). Second, while a trial court has the power to issue a mandatory injunction, “[cJourts are reluctant to issue mandatory injunctions, and will not do so except in the most serious cases where the injury complained of is not capable of compensation in damages.” Dallas Indep. Sch. Dist. v Daniel, 323 S.W.2d 639, 641 (Tex. Civ. App—Dallas 1959, writ red n.r.e.) (compiling cases). Thus, an application for a mandatory temporary injunction “should be denied absent a clear and DEFENDANTS" BRIEF IN OPPOSITION TO PLAINTIFFS? Page 4 APPLICATION FOR TEMPORARY INJUNCTIONcompelling presentation of extreme necessity or hardship.” RP@R, Inc. v. Territo, 32 S.W.3d 396, 401 (Tex. App—Houston [14th Dist] 2000, no pet.). Here, Plaintiffs have offered no such evidence. Indeed, all of Plaintiffs’ alleged injuries, if proven, are easily compensable through money damages, and Plaintiffs would therefore experience no hardship at all in the absence of a temporary injunction. See Indep. Capital Mgmt., L.L.C. v. Collins, 261 8.W.3d 792, 796 n.2 (Tex. App—Dallas 2008, no pet.) (“Any damage to [a party's] reputation is compensable through monetary damages.”). Most importantly, a mandatory injunction is improper here because it would require the Court to grant relief that would violate Defendants’ rights secured by Article I, Section 8 of the Texas Constitution and the First Amendment of the United States Constitution. Because “{dJefamation alone is not a sufficient justification for restraining an individual's right to speak,” Hajek, 647 8.W.2d at 255, the relief Plaintiffs seek is unconstitutional. C. Plaintiffs Cannot Meet Their Burden of Establishing a Probable Right to Relief, Irreparable Injury, and an Inadequate Remedy at Law. In order to obtain a temporary injunction, an applicant must demonstrate a probable right of recovery upon final trial on the merits. Butnaru, 84 $.W.3d at 204, “A probable right of recovery is proven by alleging a cause of action and presenting evidence that tends to sustain it.” Letson v. Barnes, 979 S.W.2d 414, 417 (Tex. App.—Amarillo 1998, pet. denied). “This requirement is not satisfied by the mere tender to the court of sworn pleadings, affidavits, and legal argument, unless the parties agree otherwise.” Id. at 419 (citing Millwrights, 433 S.W.2d at 687). Here, the permanent relief upon which Plaintiffs’ application for temporary injunction is predicated is unconstitutional. See Hajek, 647 S.W.2d at 255 (“Defamation alone is not a sufficient justification for restraining an individual's right to speak.” Collucci v. Laguna Madre Boys & Girls Club, No. 13-99-110-CV, 1999 WL 34974129, at *1 (Tex. App—Corpus Christi Aug. 31, 1999, no pet.) (holding that a permanent injunction restraining defamatory statements clearly violated Article 1, DEFENDANTS" BRIEF IN OPPOSITION TO PLAINTIFFS? Page 5 APPLICATION FOR TEMPORARY INJUNCTIONSection 8 of the Texas Constitution). As such, Plaintiffs cannot adduce any evidence that would meet their burden of demonstrating a probable right to relief. To be entitled to a temporary injunction, Plaintiffs must also demonstrate a probable, imminent, and irreparable injury if the injunction is not granted. Butnaru, 84 S.W.3d at 204. An injury is irreparable if the injured party establishes that he or she has no adequate remedy at law. Canteen Corp v. Republic of Tex. Props., Inc., 773 8.W.2d 398, 401 (Tex. App-—Dallas 1989, no writ). As a matter of law, Plaintiffs’ alleged injuries, if proven at trial, are compensable by money damages. The Texas Supreme Court has held that “{tJhe Constitution leaves [2 person] free to speak well or ill; and if he wrongs another by abusing this privilege, he is responsible in damages. .. .” Ex Parte Tucker, 220 S.W. at 76. Likewise, the Dallas Court of Appeals has observed that “any damage to [a party's] reputation is compensable through monetary damages.” Indep. Capital Mgmt., 261 8.W.34 at 796 n.2. Plaintiffs assert that they have no adequate remedy at law because Defendants may be unable to satisfy a judgment. Pet. at ]48. Although a defendant's insolvency may establish irreparable harm, Plaintiffs do not, and cannot, allege or prove that Defendants are insolvent. In any event, in the cases dealing with insolvency, the act to be restrained would prevent the defendant from becoming insolvent, which therefore necessitates a temporary injunction. See Loye v. Travelhost, Inc., 156 S.W.3d 615, 621 (Tex. App.—Dallas 2004, no pet.) (compiling cases). Because the injunctive relief sought here is unrelated to Defendants’ ability to satisfy any judgment, the Court should deny Plaintiffs’ application for temporary injunction. DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFFS’ Page 6 APPLICATION FOR TEMPORARY INJUNCTIONIII, CONCLUSION Based on the foregoing, Defendants respectfully pray that the Court deny Plaintiffs’ Application for Temporary Injunction and grant such further relief to which Defendants are entitled. Respectfully submitted, VINSON & ELKINS L.LP. Thomas Teeatatoary State Bar No. 12095275 William D. Sims, Jr. State Bar No. 18429500 Lisa R. Helem State Bar No. 24072145 Tyler J. Bexley State Bar No. 24073923 2001 Ross Avenue, Suite 3700 Dallas, Texas 75201-2975 Telephone: 214.220.7792 Facsimile: 214.999.7792 Attorneys for Defendants Avi S, Adelman, Barkingdogs.org, and Dallas Creative DEFENDANTS? BRIEF IN OPPOSITION TO PLAINTIFFS" Page 7 APPLICATION FOR TEMPORARY INJUNCTIONCERTIFICATE OF SERVICE Thereby certify that on March 30, 2011 a true and correct copy of the foregoing Brief in Opposition to Plaintiffs’ Application for Temporary Injunction was served on the following counsel of record by hand delivery and certified mail, return receipt requested: Armando Miranda 923 West Jefferson Dallas, TX 75208 Attorney for Plaintiffs bf DEFENDANTS? BRIEF IN OPPOSITION TO PLAINTIFFS? Page 8 APPLICATION FOR TEMPORARY INJUNCTION