Microsoft Corporation v. Kevin Pira - Document No. 17

Case 1:06-cv-01048-OWW-LJO Document 17 Filed 08/11/2006 Page 1 of 5
1 Paul J. Andre (Bar No. 196585) DATE OF

Esha Bandyopadhyay (Bar No. 212249) ISSUANCE: August 11, 2006
2 Perkins Coie LLP
101 Jefferson Drive HOUR OF
3 Menlo Park, California 94025-1114 ISSUANCE: 4:10 p.m.
Phone: (650) 838-4370
4 Fax: (650) 838-4350
Email: [email protected]
5 [email protected]
6 Scott T. Wilsdon (pro hac vice pending)

John H. Jamnback (pro hac vice pending)
7 Jeremy E. Roller (pro hac vice pending)
Yarmuth Wilsdon Calfo PLLC
8 925 Fourth Avenue, Suite 2500
Seattle, Washington 98104
9 Phone: (206) 516-3800
Fax: (206) 516-3888
10 Email: [email protected]
[email protected]
11 [email protected]
12 Attorneys for Plaintiff Microsoft
13 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA
14 FRESNO DIVISION
15 MICROSOFT CORPORATION, a
Washington corporation, NO. 1:06-cv-1048 OWW LJO
16
Plaintiff, ORDER GRANTING MICROSOFT'S EX
17 PARTE APPLICATION FOR (1)
v. TEMPORARY RESTRAINING ORDER
18 FREEZING DEFENDANT'S ON-LINE
KEVIN PIRA, d/b/a BACKUP SOFTWARE AND RELATED ACCOUNTS, AND (2)
19 SALES INC., [email protected], ORDER TO SHOW CAUSE
MICROSOFTWHOLESALE,
20 WHOLESALESOFTWAREDIRECT,
FLAMINGKEVIN, SWEETKEVSALES,
21 KEVSCUSTOMTRUCK,
ROYALRUMBLEWWE,
22 ELECTECHNOLOGIES, and KEVINPIRA,
an individual,
23
Defendant.
24
25
THIS MATTER comes before the Court upon plaintiff Microsoft’s (“Microsoft”) Ex
26
Parte Application for (1) a Temporary Restraining Order freezing certain accounts owned
[PROPOSED] ORDER GRANTING

MICROSOFT'S EX PARTE APP. FOR (1) TRO
FREEZING DEFENDANT'S ACCOUNTS, AND
(2) ORDER TO SHOW CAUSE – Page 1
PDF created with pdfFactory trial version www.pdffactory.com
1 or controlled by defendant Kevin Pira (“Pira”), and (2) an Order requiring Pira to appear
2 and show cause why those accounts should not remain frozen pending a show cause hearing
3 to determine whether the asset freeze shall remain in effect pending the trial in this action.
4 Having reviewed the materials submitted, and being fully advised, the Court GRANTS
5 Microsoft’s application as follows:
6 (1) The Court GRANTS Microsoft’s Ex Parte Application without notice to Pira
7 because the Court finds that there is a real and substantial probability that Pira will secrete
8 or transfer beyond the Court’s jurisdiction the funds that are the subject of this Temporary
9 Restraining Order, rendering the relief granted ineffective. The Court bases this finding on
10 Pira’s continued distribution of counterfeit Microsoft software and the fact that Microsoft’s
11 efforts to convince Pira to cease his distribution of counterfeit Microsoft software have
12 failed to persuade Pira to reform his practices. Based upon this evidence and showing, the
13 Court finds good cause to hear Microsoft’s application and issue this Temporary
14 Restraining Order ex parte.
15 (2) The Court GRANTS Microsoft’s Ex Parte Application for a Temporary
16 Restraining Order freezing Pira’s PayPal, Amazon.com, and certain other accounts upon
17 finding that plaintiff Microsoft has carried its burden of showing (a) irreparable harm, and
18 (b) either a likelihood of success on the merits or sufficient questions on the merits to make
19 them a fair ground for litigation and a balance of hardships tipping decidedly in its favor.
20 Infringement of Microsoft’s copyright and trademark rights in itself causes irreparable harm
21 to Microsoft. Additionally, the Court finds that consumer dissatisfaction with counterfeit
22 software purchased from Pira has irreparably harmed Microsoft and will continue to
23 irreparably harm Microsoft unless enjoined.
24 (3) The Temporary Restraining Order is granted pursuant to Federal Rule of
25 Civil Procedure 65, the Court’s general equitable power, 17 U.S.C. § 504(b) (copyright
26 infringement), and 15 U.S.C. § 1117(a) (trademark infringement).

1 (4) The Court hereby RESTRAINS AND ENJOINS defendant Kevin Pira, and
2 any persons or entities acting on his behalf, including but not limited to the financial
3 institutions or third parties identified below, from transferring, disposing of, encumbering
4 or secreting any of the following accounts:
5 (a) Any PayPal or Amazon.com Honor System account(s) in the name
6 of, linked to, or otherwise associated with Kevin Pira.
7 (b) Any PayPal or Amazon.com Honor System account(s) in the name of
8 “pirainc” or linked to or otherwise associated with the email addresses
9 [email protected] and/or [email protected].
10 (c) Any PayPal or Amazon.com Honor System account(s) in the names
11 of, linked to, or otherwise associated with iOffer.com user names “electechnologies”
12 and/or “kevinpira.”
13 (d) Any PayPal or Amazon.com Honor System account(s) in the names
14 of, linked to, or otherwise associated with iOffer or eBay user names
15 “[email protected],” “microsoftwholesale,” “wholesalesoftwaredirect,”
16 “flamingkevin,” “sweetkevsales,” “kevscustomtruck,” and/or “royalrumblewwe.”
17 (e) Any bank account(s) or other types of accounts linked to or receiving
18 deposits from any of the PayPal or Amazon.com Honor System account(s)
19 identified in Paragraphs 4(a) through (d) of this Order.
20 (f) Any Bank of America account(s) in the name of, linked to, or
21 otherwise associated with Kevin Pira, or for which Pira has signature authority.
22 (5) As soon as practical upon service of this Order, PayPal and Amazon.com are
23 directed to identify by bank name and location, account holder, and account number any
24 account(s) that is/are linked to or receiving deposits from any of the PayPal or Amazon.com
25 account(s) identified in Paragraphs 4(a) through (d) of this Order.
26

1 (6) Within three business days upon service of this Order, PayPal, Amazon.com,
2 and Bank of America are directed to provide account information in sufficient detail to
3 identify the (a) account holder, (b) address or contact information, and (c) current balance
4 for each account subject to this Order. The required information shall be delivered to
5 counsel for Microsoft. As soon as practical, counsel for Microsoft is directed to serve Pira
6 with copies of all account information received from PayPal, Amazon.com, and Bank of
7 America.
8 (7) This Temporary Restraining Order shall take effect immediately and shall
9 remain in effect pending the Show Cause Hearing in Paragraph 9 or further order of this
10 Court. Pira may apply to the Court for dissolution or modification of this Temporary
11 Restraining Order on two court days’ notice to Microsoft.
12 (8) Microsoft is directed to file proof of bond in the amount of $100,000 no later
13 than 5:00 p.m. on Tuesday, August 15, 2006. The bond shall serve as security for all claims
14 with respect to this Temporary Restraining Order.
15 (9) Pira is ordered to appear in Courtroom 3 of the United States District Court
16 for the Eastern District of California, 2500 Tulare Street, Fresno, California, on Friday,
17 August 18, 2006, at 10:00 a.m, and show cause why the account(s) that is/are the subject of
18 this Order should not remain frozen pending trial in this action.
19 (10) Pira shall serve and file any papers in opposition to the continued restraint
20 and impoundment not later than 12:00 p.m. on Thursday, August 17, 2006.
21 //
22 //
23 //
24 //
25 //
26 //

1 (11) The Court orders Microsoft to serve Pira with this Order no later than
2 12:00 p.m. on Monday, August 14, 2006.
4 DATED this 11th day of August, 2006.
5
/s/ OLIVER W. WANGER
6 The Honorable Oliver W. Wanger
United States District Judge
7
8 Presented by:
9
10 /s/ Paul J. Andre

Paul J. Andre (Bar No. 196585)
11 Esha Bandyopadhyay (Bar No. 212249)
PERKINS COIE LLP
12 101 Jefferson Drive
13 Menlo Park, California 94025-1114
Phone: (650) 838-4370
14 Fax: (650) 838-4350
16
17
/s/ Scott T. Wilsdon
18 Scott T. Wilsdon (pro hac vice)
John H. Jamnback (pro hac vice pending)
19 Jeremy E. Roller (pro hac vice pending)
YARMUTH WILSDON CALFO PLLC
20 925 Fourth Avenue, Suite 2500
Seattle, Washington 98104
21
Phone: (206) 516-3800
22 Fax: (206) 516-3888
[email protected]
24
Attorneys for Plaintiff Microsoft Corporation
25
26


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Case 1:06-cv-01048-OWW-LJO Document 17 Filed 08/11/2006 Page 1 of 5

1 Paul J. Andre (Bar No. 196585) DATE OF

6 Scott T. Wilsdon (pro hac vice pending)

12 Attorneys for Plaintiff Microsoft

13 UNITED STATES DISTRICT COURT

[PROPOSED] ORDER GRANTING

5 Microsoft’s application as follows:

14 Restraining Order ex parte.

15 (2) The Court GRANTS Microsoft’s Ex Parte Application for a Temporary

23 irreparably harm Microsoft unless enjoined.

24 (3) The Temporary Restraining Order is granted pursuant to Federal Rule of

26 infringement), and 15 U.S.C. § 1117(a) (trademark infringement).

[PROPOSED] ORDER GRANTING

4 or secreting any of the following accounts:

5 (a) Any PayPal or Amazon.com Honor System account(s) in the name

6 of, linked to, or otherwise associated with Kevin Pira.

7 (b) Any PayPal or Amazon.com Honor System account(s) in the name of

8 “pirainc” or linked to or otherwise associated with the email addresses

9 [email protected] and/or [email protected].

10 (c) Any PayPal or Amazon.com Honor System account(s) in the names

13 (d) Any PayPal or Amazon.com Honor System account(s) in the names

15 “[email protected],” “microsoftwholesale,” “wholesalesoftwaredirect,”

16 “flamingkevin,” “sweetkevsales,” “kevscustomtruck,” and/or “royalrumblewwe.”

17 (e) Any bank account(s) or other types of accounts linked to or receiving

18 deposits from any of the PayPal or Amazon.com Honor System account(s)

19 identified in Paragraphs 4(a) through (d) of this Order.

25 account(s) identified in Paragraphs 4(a) through (d) of this Order.

[PROPOSED] ORDER GRANTING

11 Restraining Order on two court days’ notice to Microsoft.

14 with respect to this Temporary Restraining Order.

[PROPOSED] ORDER GRANTING

2 12:00 p.m. on Monday, August 14, 2006.

4 DATED this 11th day of August, 2006.

10 /s/ Paul J. Andre

[PROPOSED] ORDER GRANTING

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