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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

OSSUR HOLDINGS, INC. and

GENERATION II, USA, INC.,

Plaintiffs,

v.

BELLACURE, INC., et al.,

Defendants.

CASE NO. C05-1552JLR

ORDER TO SHOW CAUSE

I. INTRODUCTION

This matter comes before the court on Plaintiffs’ motion for a temporary

restraining order (Dkt. # 3). Plaintiffs have not served any Defendant with their motion,

with the complaint in this action, or with any other pleading. For the reasons stated

below, the court DENIES Plaintiffs’ motion for ex parte relief, and orders Plaintiffs to

serve Defendants with all pleadings on file in this action along with this order. 

Defendants shall have five days from the date of service to show cause why the court

should not enter a temporary restraining order. 

II. BACKGROUND & ANALYSIS

Plaintiffs Ossur Holdings, Inc. and Generation II, USA, Inc. develop and sell

prosthetic and orthotic devices, including devices for the treatment of osteoarthritic knee

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1

The sole basis for the court’s jurisdiction over this action is its jurisdiction over Plaintiffs’

Lanham Act claim, its jurisdiction under 28 U.S.C. § 1338(b) over the related Washington unfair

competition claim, and the court’s supplemental jurisdiction over Plaintiffs’ remaining state law

claims under 28 U.S.C. § 1367(a). In responding to this order to show cause, Defendants may

address whether the court should decline to exercise supplemental jurisdiction under 28 U.S.C.

§ 1367(c).

ORDER – 2

pain. Defendant Bellacure Inc. (“Bellacure”) is engaged in a similar business. Defendant

Shane Sterling is the founder and principal officer of Bellacure. Defendant Maurice

Cannon is the Executive Vice President of Bellacure. Both individual Defendants

formerly worked for the Plaintiffs. Mr. Sterling resigned in April 2004; Mr. Cannon

resigned in September 2004.1

Without assessing the merits of Plaintiffs’ claims, the court finds that Plaintiffs

have not met the standard for issuing a temporary restraining order without notice to the

Defendants. Under Fed. R. Civ. P. 65(b), an ex parte temporary restraining order can

issue only if:

(1) it clearly appears from specific facts shown by affidavit or by the

verified complaint that immediate and irreparable injury, loss, or

damage will result to the applicant before the adverse party or that

party’s attorney can be heard in opposition, and

(2) the applicant’s attorney certifies to the court in writing the efforts, if

any, which have been made to give the notice and the reasons

supporting the claim that notice should not be required.

The court is not persuaded that Plaintiffs will suffer irreparable injury before the

Defendants can be notified of their request for injunctive relief. The principal basis of

Plaintiffs’ motion is Defendants’ alleged misappropriation of their trade secrets. Without

delving into the potential merit of this claim, the court finds no indication that Plaintiffs

will suffer irreparable harm if Defendants are given the opportunity to respond to their

request for injunctive relief. The same is true of Plaintiffs’ claim for injunctive relief

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ORDER – 3

based on alleged violations of confidentiality agreements that the individual Defendants

signed while in their employ, and Plaintiffs’ claim under the Lanham Act. 

Indeed, the only assertion Plaintiffs offer in support of the extraordinary remedy of

an ex parte temporary restraining order is that “[i]t is imperative that the defendants not

be given even an hour’s notice, as such time would allow them time to irreparably alter or

destroy essential computer files.” Pltfs.’ Mot. at 24. There is absolutely no evidence that

Defendants will destroy their computer files if served with the pleadings in this action. 

Plaintiffs’ do not even attempt to support their bold assertion with evidence. The court

cautions Defendants that they have an obligation to preserve any evidence that may be

relevant to this action, and that any destruction or modification of potentially relevant

evidence will result in contempt sanctions. Nonetheless, Plaintiffs’ fear that Defendants

will destroy evidence, computerized or otherwise, is speculation. The court finds no basis

for issuing an ex parte temporary restraining order.

III. CONCLUSION

 For the foregoing reasons, the court DENIES Plaintiff’s motion in part (Dkt. # 3). 

The court declines to issue an ex parte temporary restraining order. In order to

expeditiously address Plaintiffs’ request for a temporary restraining order, the court

directs Plaintiffs to serve all Defendants with all pleadings in this action, including this

order to show cause. Plaintiffs shall provide the court with proof of service. Once

Plaintiffs have effected proper service, Defendants will have five days to show cause why

this court should not enter a temporary restraining order on the terms presented in

Plaintiffs’ motion. The court strongly prefers a written submission from Defendants, but

if that proves impossible, Defendants may contact the court at (206) 370-8920 to arrange 

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ORDER – 4

an oral response. If appropriate, the court will order a hearing after reviewing

Defendants’ response to this order to show cause. 

Dated this 13th day of September, 2005.

A JAMES L. ROBART

United States District Judge

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