Filed 12 September 17 A9:11 Gary Fitzsimmons District Clerk Dallas District

CAUSE NO.: DC-12-10604 MELISSA KINGSTON, Plaintiff, v. AVI ADELMAN, Defendant. IN THE DISTRICT COURT

DALLAS COUNTY, TEXAS

95th JUDICIAL DISTRICT

DEFENDANTS MOTION TO DISSOLVE EX PARTE TRO

TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW the Defendant, AVI ADELMAN (Defendant), by and through the undersigned counsel, and makes this motion for the Court to dissolve, or alternatively, modify the Ex Parte Temporary Restraining Order issued in this case on September 12, 2012, and shows: I. BACKGROUND 1. Plaintiff, MELISSA KINGSTON (Plaintiff), filed this suit against Defendant on September 12, 2012, which at its core involves Defendants purchase and alleged use of a domain name, www.melissakingston.com. 2. Plaintiff alleges multiple causes of action, including misappriation of name, injury to business reputation, misappropriation of a common law mark, the Texas Theft Liability Act, and also seeks injunctive relief. 3. Plaintiff also presented an application for an ex parte temporary restraining order, which was considered and granted by the associate judge of the 95th District Court. The temporary restraining order included several provisions relating to both the domain name in question as well as Defendants ability to come within 1,000 feet of Plaintiffs residence or workplace.

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4. The presiding judge of the same court then recused himself from this case, and the Honorable Judge John Ovard, presiding judgment of the First Administrative Judicial Region, assigned this case to the 44th District Court for hearing. II. MOTION 5. Pursuant to Tex. R. Civ. P. 680, Plaintiff moves the Court dissolve the Ex Parte Temporary Restraining Order immediately. 6. Alternatively, Plaintiff moves the Court modify the Temporary Restraining Order to dispense with and remove any limitation on Defendants movement. 7. Defendant would also request the Court expedite hearing of this motion to a time on Monday, September 17, 2012, or Tuesday, September 18, 2012. Plaintiff is aware of

Defendants intent to file this motion, and so an expedited hearing would not surprise or be prejudicial to Plaintiff. III. ARGUMENT 8. Many provisions of the Temporary Restraining Order are unrelated to the causes of action presented by Plaintiffs suit, and are further in applicable and pre-mature since the behavior from which Defendant is restrained has never occurred. 9. Specifically, Defendant has not sent any communication pretending to be Plaintiff and has no intention to do so. Defendant has not created a website using the domain name the subject of this suit, and has not posted any content to such a website. Defendant has not used Plaintiffs name for any commercial purpose whatsoever. 10. Further, Defendant has never made any threat of any kind towards Plaintiff, directly or indirectly, which would justify the provisions of the Temporary Restraining Order which restricts Defendants movement.

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11. The parties live in the same neighborhood, and this suit arises out of various neighborhood-related disputes. Though they do not agree on much, Defendant has never

threatened or committed and act which compromised the safety of Plaintiff. Plaintiffs suit, largely involving business and property related claims, have nothing to do with the restrictive provisions of the Temporary Restraining Order. 12. The provisions of the Temporary Restraining Order do nothing to preserve the status quo or preserve Plaintiffs claims, but only unnecessarily and excessively burden the free movement and activities of Defendant. 13. For these reasons, the Ex Parte Temporary Restraining Order should be immediately dissolved. IV. PRAYER WHEREFORE, Defendant prays the Court grant this motion and the relief requested herein, and grant all other relief, at law or equity, specific and general, to which Defendant may show himself to be entitled.

Respectfully submitted, THE NICHOLS LAW FIRM, P.L.L.C.

____________________________________ JUSTIN P. NICHOLS Texas Bar No.: 24081371 106 S. Saint Marys Street, Suite 255 San Antonio, Texas 78205 (210) 354-2300 phone (800) 761-5782 facsimile Justin@TheNicholsLawFirm.com ATTORNEY FOR DEFENDANT

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CERTIFICATE OF SERVICE I certify a true and correct copy of the foregoing instrument was served upon Plaintiff, via fax to (972) 788-2667, in accordance with Tex. R. Civ. P. 21a on September 17, 2012.

______________________________ JUSTIN P. NICHOLS

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