                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

OPEN TOP SIGHTSEEING USA, et al.

                       Plaintiffs,                         Civil Action No. 14-820 (BAH)

                       v.                                  Judge Beryl A. Howell

MR. SIGHTSEEING, LLC, et al.,

                       Defendants.


                                     MEMORANDUM OPINION

       Pending before the Court in this contract and trademark dispute are two motions filed by

the plaintiffs: a Motion for Preliminary Injunction (“Pls.’ PI Mot.”), ECF No. 4, and a Motion for

an Extension of Time/Continuance and Notice of Intent to Withdraw and Substitute Counsel

(“Pls.’ Mot.”), ECF No. 16. In the latter motion, the plaintiffs seek to amend this Court’s

scheduling order of May 27, 2014, which granted the scheduling order requested by the plaintiffs

for considering the plaintiffs’ pending motion for preliminary injunctive relief. See Pls.’ Mot. at

1. Specifically, the plaintiffs are moving for a “short continuance of the July 1, 2014 hearing on

the Motion for Preliminary Injunction” and to extend the deadlines for the plaintiffs’ filing of a

reply and any supplemental affidavits. See id. The plaintiffs’ Motion for Preliminary Injunction

is denied and the plaintiff’s Motion for an Extension of Time is denied as moot.

I.     BACKGROUND

       For the purposes of resolving the instant motions, the Court presumes the parties are

familiar with the facts and briefly describes the procedural history of this matter. The plaintiffs

filed their Complaint, seeking permanent injunctive relief and damages, on May 19, 2014, more

than thirty days after the defendants began engaging in the activity the plaintiffs claim violates


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their trade dress and breaches the severance agreements signed by the defendants. See Compl. ¶¶

65–70, ECF No. 1. On the same date, the plaintiffs filed their motion for a preliminary

injunction. See Pls.’ PI Mot. at 1. The Court ordered the plaintiffs to submit proof of service on

the defendants and a preliminary briefing schedule by May 23, 2014, in an effort to address

promptly the plaintiffs’ allegations of irreparable harm stemming from the defendants’ continued

operation. See Order Controlling Preliminary Injunction Proceedings at 1, ECF No. 9. In

response, the plaintiffs submitted a briefing schedule that set a hearing on the plaintiffs’ Motion

for Preliminary Injunction during the first week of July, 2014. See Proposed Sched. Prelim. Inj.

Hr’g, at 1, ECF No. 12. The Court set the hearing for the first day the plaintiffs’ counsel

indicated they would be available, July 1, 2014. See Minute Order, May 27, 2014.

       By the plaintiffs’ own proposed scheduling order, the Court would be unable to rule on

their motion for a preliminary injunction until well after the twenty-one day time limit for a

hearing imposed by this District’s Local Civil Rule 65.1(d). Indeed, the plaintiffs’ schedule sets

the hearing for forty-three days after the plaintiffs filed their motions and at least seventy-nine

days after the defendants’ conduct, which is allegedly causing the plaintiffs irreparable harm,

began. See Compl. ¶ 65. The plaintiffs now seek an indefinite extension of the hearing on their

motion for preliminary injunctive relief or, in the alternative, at least two additional weeks, see

Pls.’ Mot. at 2, to give the plaintiffs time to secure new counsel, since the plaintiffs’ present

counsel has determined that the continued representation of the plaintiffs represents an

insurmountable conflict of interest necessitating withdrawal, see id. at 1–2.

       The defendants oppose the plaintiffs’ motion for an extension of time, averring that the

plaintiffs’ pending motion for a preliminary injunction “has a chilling effect on Defendants,

potentially causing fear in the marketplace as to who can or cannot be hired. Moreover,



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Defendants note that the Summer months are the peak season for the tour bus industry in

Washington, DC, and pendency of the preliminary injunction proceedings is disruptive to

Defendants’ business.” Defs.’ Opp’n Pls.’ Mot. (“Defs.’ Opp’n”) ¶ 7, ECF No. 17.

II.     LEGAL STANDARD

        “A [party] seeking a preliminary injunction must establish [1] that he is likely to succeed

on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief,

[3] that the balance of equities tips in his favor, and [4] that an injunction is in the public

interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley v. Sebelius,

644 F.3d 388, 392 (D.C. Cir. 2011)) (alteration in original). 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.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)

(quoting 11A C. Wright, A. Miller, & M. Kane, FEDERAL PRACTICE AND PROCEDURE § 2948 (2d

ed. 1995)) (emphasis in original).

        This Circuit has, in the past, followed the “sliding scale” approach to evaluating

preliminary injunctions, where “a court, when confronted with a case in which the other three

factors strongly favor interim relief may exercise its discretion to grant a stay if the movant has

made a substantial case on the merits.” Wash. Metro. Area Transit Comm’n v. Holiday Tours,

Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). Under the sliding scale approach, “if the movant

makes a very strong showing of irreparable harm and there is no substantial harm to the non-

movant, then a correspondingly lower standard can be applied for likelihood of success.” Davis

v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009).

        There is some dispute as to whether the sliding scale approach is still viable, considering

the Supreme Court’s holding in Winter v. Natural Resources Defense Council, 555 U.S. 7, 22



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(2008), that a court may not issue “a preliminary injunction based only on a possibility of

irreparable harm . . . [since] injunctive relief [i]s an extraordinary remedy that may only be

awarded upon a clear showing that the plaintiff is entitled to such relief.” See also In re Navy

Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013) (requiring proof that all four prongs of

preliminary injunction standard be met before injunctive relief can be issued). Thus, the

plaintiffs bear the burden of persuasion on all four preliminary injunction factors in order to

secure such an “extraordinary remedy.”

III.   DISCUSSION

       The defendants correctly point out that the “Plaintiffs’ request to postpone these

proceedings is inconsistent with its [sic] own argument” that the plaintiffs are suffering

irreparable harm by the defendants’ actions in operating their tour bus business. See Defs.’

Opp’n ¶ 6. Even granting the plaintiffs’ shortest requested extension, for two weeks, would

stretch the time between the filing of the plaintiffs’ motion for a preliminary injunction and a

hearing on the motion to sixty-two days, nearly three times as long as required by Local Civil

Rule 65.1. See Pls.’ Mot. at 2. The plaintiffs’ request for an extension of this duration is

difficult to reconcile with the pending request for injunctive relief, since, “plaintiffs seeking

preliminary relief [must] demonstrate that irreparable injury is likely in the absence of an

injunction.” Winter, 555 U.S. at 22 (emphasis in original).

       Courts have found that “[a]n unexcused delay in seeking extraordinary injunctive relief

may be grounds for denial because such delay implies a lack of urgency and irreparable harm.”

Newdow v. Bush, 355 F. Supp. 2d 265, 292 (D.D.C. 2005). The D.C. Circuit has found that a

delay of forty-four days before bringing action for injunctive relief was “inexcusable,” and

“bolstered” the “conclusion that an injunction should not issue,” particularly where the party



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seeking an injunction had knowledge of the pending nature of the alleged irreparable harm. See

Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1975). Here, the plaintiffs delayed

thirty-six days before filing for preliminary injunctive relief and have now moved to extend

consideration by this Court to ninety-five days, at least, by moving to continue the pending

hearing. See Compl. ¶ 65 (stating allegedly infringing company began operations on April 13,

2014). Such dilatory action, even if justified by the need to secure alternate counsel, 1 stands in

stark contrast to the high bar the plaintiffs must clear to show irreparable harm. See, e.g.,

Frizzell, 530 F.2d at 987; Mylan Pharms., Inc. v. Shalala, 81 F. Supp. 2d 30, 44 (D.D.C. 2000)

(noting that delay of two months in bringing action for injunctive relief “militates against a

finding of irreparable harm”); Delmatoff, Greow, Morris Langhans, Inc. v. Children’s Hosp.

Nat’l Med. Ctr., No. 89-0219, 1989 WL 168856, at *3 (D.D.C. May 3, 1989) (finding, in

trademark action, that “a substantial delay in moving for a preliminary injunction indicates that

no irreparable harm will result if such relief is denied”); Spiraledge, Inc. v. SeaWorld Entm’t,

Inc., No. 13cv296, 2013 WL 3467435, at *5 (S.D. Cal. July 9, 2013) (denying injunctive relief

and finding delay in seeking such relief inexcusable despite ongoing settlement negotiations);

Nat’l Council of Arab Ams. v. City of New York, 331 F. Supp. 2d 258, 265–66 (S.D.N.Y. 2004)

(finding delay in filing for injunctive relief “argues strongly against granting a preliminary

injunction”).

         The Court sees little difference between (1) filing a motion for a preliminary injunction

but requesting delay in the hearing on that motion and (2) delaying the filing of the motion itself.


1
  The parties disagree as to whether the plaintiffs have moved in a timely manner to secure alternate counsel.
Specifically, the defendants allege that they notified the plaintiffs’ counsel of the conflict the plaintiffs’ counsel now
assert requires their withdrawal the day after the complaint was filed in this action, May 20, 2014. See Defs.’ Opp’n
¶ 2. The plaintiffs’ filings indicate that the plaintiffs have yet to secure new counsel by this date, twenty-nine days
after allegedly being notified of the potential conflict. See Pls.’ Mot. at 2; Pls.’ Reply Defs.’ Opp’n Pls.’ Mot.
(“Pls.’ Reply”) at 2, ECF No. 18. Indeed, the Court notes that the plaintiffs’ counsel has not filed a motion to
withdraw and have merely stated an intent to do so at some date in the indeterminate future. See Pls.’ Mot. at 2.

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The defendants argue that the mere presence of the motion for injunctive relief is causing a

chilling effect on their business and hiring practices at the peak time of the tour bus season,

Defs.’ Opp’n ¶ 7, and the Court sees no reason to prolong that chilling.

         The plaintiffs, by their actions in seeking to prolong the briefing and hearing on their

motion for a preliminary injunction, have demonstrated that any alleged harm lacks the urgency

and immediacy required to grant the extraordinary relief the plaintiffs’ request. Consequently,

the plaintiffs’ Motion for a Preliminary Injunction is denied. 2

IV.      CONCLUSION

         For the foregoing reasons, the plaintiffs’ Motion for a Preliminary Injunction is denied

and the plaintiffs’ Motion for an Extension of Time/Continuance is denied as moot.

         An appropriate Order accompanies this Memorandum Opinion.

         Date: June 18, 2014                                                         Digitally signed by Beryl A. Howell
                                                                                     DN: cn=Beryl A. Howell, o=District Court for the District
                                                                                     of Columbia, ou=District Court Judge,
                                                                                     email=howell_chambers@dcd.uscourts.gov, c=US
                                                                                     Date: 2014.06.18 17:53:57 -04'00'


                                                                 __________________________
                                                                 BERYL A. HOWELL
                                                                 United States District Judge




2
  Since the plaintiffs have failed to demonstrate irreparable harm, there is no need for the Court to consider the other
factors of the preliminary injunction standard at this time. See, e.g., In re Navy Chaplaincy, 738 F.3d at 428
(upholding district court denial of preliminary injunction based on failure to meet burden on one prong of test);
Spiraledge, Inc., 2013 WL 3467435, at *6 (“Because [the plaintiff] has failed to meet its burden of demonstrating
that irreparable injury is likely in the absence of an injunction, the Court need not decide whether [the plaintiff] is
likely to succeed on the merits.”) (internal quotation marks and citation omitted).

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