Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wagner v. Adickman

United States District Court, D. Arizona

July 9, 2019

Gary Wagner, et al., Plaintiffs,
v.
Derek Adickman, et al., Defendants.

          ORDER

          SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE

         Plaintiffs filed a request for a preliminary injunction (Doc. 2) and a hearing was held on July 8, 2019. The Court has now considered the pleadings, testimony, exhibits from the hearing, [1] relevant case law, and arguments of counsel.

         I. Background

         Plaintiff Gary Wagner (“Wagner”) owns two companies: Giggling Marlin, Inc. (“GM Inc.”) and Giggling Marlin S. de R.L. de C.V. (“GM Mexico”). Wagner started the Giggling Marlin brand about 35 years ago when he opened the Giggling Marlin Bar & Grille in Cabo San Lucas, Mexico. Wagner began making tequila branded as Giggling Marlin in 2015. Wagner owns federal trademarks for the “Giggling Marlin” under trademark nos. 4, 860, 349 (for tequila) (Ex. 1) and 4, 444, 166 (for restaurant services) (Ex. 2). GM Inc. has an importer permit issued by the Alcohol and Tobacco Tax and Trade Bureau with permit no. AZ-I-21043 (the “Importer Permit”) (Ex. 3). GM Inc. has a wholesaler permit issued by the Alcohol and Tobacco Tax and Trade Bureau with permit no. AZ-P-21076 (the “Wholesaler Permit”) (Ex. 4). GM Inc. owns the tequila.

         Defendant Derek Adickman (“Adickman”) met Wagner in Mexico several years ago. The two began to discuss going into business together to sell the tequila. Ultimately, the parties came to some agreement and Wagner sent tequila to Adickman to store and sell. The tequila has always been stored in a detached RV garage at a home in Arizona owned by Keith Foulke (the “Home”). There is no relationship between Wagner and Mr. Foulke.

         At some point, the parties signed a written agreement (the “Agreement”), but they disagree as to what the Agreement means. (Ex. 11).[2] Adickman testified that the Agreement was to start a company called Giggling Marlin Tequila, and he was to be 30% owner. Wagner testified that the Agreement was written to formalize their arrangement and Adickman was just a salesman who was to receive 30% of the profits. There is no dispute that Giggling Marlin Tequila had never been formally created as either a limited liability company or a corporation. There was no testimony nor is there anything in the agreement as to ownership of the tequila. There was no testimony about the purpose of the business. The Agreement says that the primary purpose “is to provide sales, services, goods, intel[l]ectual rights, properties and anything else related to the Giggling Marlin Tequila which are solely owned by GW for Giggling Marlin Tequila.” (Ex. 11) (emphasis in original).

         The working relationship between Adickman and Wagner deteriorated, and Wagner demanded return of all the tequila in March 2019. There are currently hundreds of cases of tequila stored at the Home. Adickman refused to return the tequila. Wagner offered to go to arbitration and Adickman refused. (Exs. 12 & 13).[3] Wagner learned that the Home where the tequila was stored was in foreclosure proceedings. The foreclosure was scheduled for July 9, 2019, but the morning of the hearing it was rescheduled for July 16, 2019. Adickman testified that he sent a wire transfer the morning of the hearing and that the foreclosure was going to be closed. The parties were unable to confirm that the foreclosure was stopped altogether.

         Wagner filed the current case (Doc. 1, “Complaint”) and requested a preliminary injunction on May 17, 2019. (Doc. 2). The Complaint alleges claims for trademark infringement, unfair competition, breach of contract, conversion, and injunctive relief.

         II. Legal Standard

         Under Rule 65 of the Federal Rules of Civil Procedure, a party may seek injunctive relief if it believes it will suffer irreparable harm during the pendency of an action. “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (emphasis omitted)); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted) (“A preliminary injunction is an extraordinary remedy never awarded as of right.”). A plaintiff seeking a preliminary injunction must show that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are ‘serious questions going to the merits'-a lesser showing than likelihood of success on the merits-then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff's favor,' and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (emphasis omitted) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this “serious questions” variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at 1072.

         1. Likelihood of Success/Serious Questions

         There was very little discussion at the hearing regarding Plaintiffs' likelihood of success on the merits of the claims. Defendant Adickman did not directly address the merits of the claims in his Response and instead argues that Plaintiffs have not shown irreparable harm. The Court will however analyze the claims as alleged.

         a. Trademar ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.