Cozad Trailer Sales LLC v. Rackley Bilt Trailer Sales, Inc et al Doc.

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Case 2:05-cv-01181-WBS-DAD Document 15 Filed 06/17/2005 Page 1 of 4

1 A. PETER RAUSCH, JR. (State Bar No. 127930)

LAW OFFICES OF A. PETER RAUSCH, JR.
2 7488 Shoreline Drive, Suite A-3
Stockton, California 95219
3 Telephone: (209) 952-5000
Facsimile: (209) 952-5009
4
Attorneys for Plaintiff
5 COZAD TRAILER SALES LLC
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10 SACRAMENTO DIVISION
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COZAD TRAILER SALES LLC., a ) Civil Action No. 2:05-cv-1181- WBS
13 California limited liability company )
) STIPULATED TEMPORARY
14 Plaintiff, ) RESTRAINING ORDER AND
) ORDER TO SHOW CAUSE RE:
15 vs. ) PRELIMINARY INJUNCTION AND
) PERMITTING EXPEDITED
16 RACKLEY BILT TRAILER SALES, INC., ) DISCOVERY
a California corporation, DANNY )
17 RACKLEY, an individual, and VARIOUS )
JOHN or JANE DOES; and XYZ )
18 COMPANIES, )
)
19 Defendants. )
)
20 _____________________________________ )
21 Plaintiff, COZAD TRAILER SALES, LLC, a California limited liability company (herein
22 after “Cozad”), has moved ex parte for a temporary restraining order and order to show cause re:
23 preliminary injunction and permitting expedited discovery, under the Lanham Act (15 U.S.C.
24 §1051, et seq.) alleging that Defendants Rackley Bilt Trailer Sales, Inc., a California corporation
25 and or Danny Rackley, an individual, (herein after “Defendants”) appear to be selling goods or
26 threatening to sell goods in violation of Plaintiff’s trade dress interests. Defendants have
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Stipulated Temporary Restraining Order and Order to Show Cause Re:
Preliminary Injunction and Permitting Expedited Discovery

Dockets.Justia.com
 Case 2:05-cv-01181-WBS-DAD Document 15 Filed 06/17/2005 Page 2 of 4

1 engaged counsel and both parties have agreed to stipulate to the issuance of temporary injunctive
2 relief in lieu of proceeding with a hearing on the ex parte’ application. The parties, therefore,
3 through their undersigned attorneys of record, hereby stipulate and agree that:
4 1. Defendants, and each of them, are hereby restrained and prohibited from making
5 use in any manner of Plaintiff’s trade dress interest and from selling any low-bed heavy haul
6 industrial trailer infringing Plaintiff’s trade dress interest and specifically the use or incorporation
7 of four to six (4-6) inch round holes spaced proportionally in between cross members of the
8 trailer assembly in and along the side web of Defendant’s low-bed heavy haul industrial trailers,
9 pending hearing on the order to show cause re: preliminary injunction and permitting expedited
10 discovery.
11 2. Defendants, and each of them, shall appear and show cause, unless any defendant
12 waives this right to do so, before the Honorable William B. Shubb, Judge of this Court, at the
13 United States Courthouse, at 501 “I” Street, Sacramento, California, in courtroom 5, on M onday,
14 June 27th, 2005 at 1:30 P.M., which date is set by the court for good cause shown, or as soon
15 thereafter as counsel can be heard, why an order should not be entered granting plaintiffs a
16 preliminary injunction pursuant to Federal Rule of Civil Procedure 65 as follows:
17 (a) counterfeiting, imitating, copying, or making unauthorized use of the trade
18 dress of Cozad’s low-bed heavy haul industrial trailer products;
19 (b) manufacturing, producing, printing, distributing, trafficking, importing,
20 selling, offering for sale, advertising, promoting or displaying any low-bed heavy haul industrial
21 trailer bearing any simulation, reproduction, counterfeit, copy or colorable imitation of the trade
22 dress of Cozad’s low-bed heavy haul industrial trailer products;
23 (c) selling any of the infringing low-bed heavy haul industrial trailers currently
24 under manufacture at the Rackley Bilt Custom Trailers, Inc. facility located at Stockton,
25 California, or elsewhere and which bear a trade dress similarity and resemblance to Cozad’s trade
26 dress design elements;
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Stipulated Temporary Restraining Order and Order to Show Cause Re:
Preliminary Injunction and Permitting Expedited Discovery
 Case 2:05-cv-01181-WBS-DAD Document 15 Filed 06/17/2005 Page 3 of 4

1 (d) directing the Defendants to notify and advise any and all customers to whom
2 they offered, sold, or delivered any trailers infringing the trade dress of Cozad, that the trailers
3 were not made by or associated with Cozad, and that such customers to whom such trailers were
4 sold and delivered be given the opportunity to return the trailers to Defendants in any condition
5 for a full refund for any deposits or monies paid, and that Defendants make such refunds and
6 keep complete records of such notifications, returns, and refunds, including keeping any products
7 returned;
8 (e) requiring Defendants to account for and pay over to Plaintiff all profit
9 realized by them from their infringement of Plaintiff’s trade dress and their unfair competition
10 with Plaintiff.
11 3. The moving papers of Cozad having been already duly served, Defendants’
12 answering papers, if any, shall be filed with the clerk of this court and served upon the attorney
13 for Plaintiff no later than June 20, 2005. Any response shall be filed and served by Plaintiff
14 before June 24, 2005;
15 4. The parties may immediately initiate discovery under the Federal Rules of Civil
16 Procedure, subject to cooperation between counsel and focused on such issues as may be relevant
17 to and raised in connection with the request for the preliminary injunction.
18 Dated: June 16, 2005 Respectfully Submitted;
19 LAW OFFICES OF A. PETER RAUSCH, JR.
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21 By: /s/ A. Peter Rausch, Jr.
A. Peter Rausch, Jr.
22 Attorneys for Plaintiff
Cozad Trailer Sales LLC.
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24 [Submitted via E-Filing]

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Stipulated Temporary Restraining Order and Order to Show Cause Re:
Preliminary Injunction and Permitting Expedited Discovery
 Case 2:05-cv-01181-WBS-DAD Document 15 Filed 06/17/2005 Page 4 of 4

1 LAW OFFICES OF GREGORY T. MEATH

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3 By: /s/ Greggory T. Meath
Gregory T. M eath
4 Attorneys for Defendants
Rackley Bilt Trailer Sales, Inc.,and Danny Rackley
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6 [Submitted via E-Filing]

7 E-FILING SIGNATURE ATTESTATION

8 I hereby attest that I have been expressly authorized by opposing counsel to affix his
9 signature above as indicated by a "conformed" signature (/S/) within this e-filed document.
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11 June 16, 2005 /s/ A. Peter Rausch, Jr.
A. Peter Rausch, Jr.
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[Submitted via E-Filing]
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IT IS SO ORDERED
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Date: June 16, 2005
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Time: 2:00 p.m.
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Stipulated Temporary Restraining Order and Order to Show Cause Re:
Preliminary Injunction and Permitting Expedited Discovery