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09172012 Defendant Motion Dissolve TRO

09172012 Defendant Motion Dissolve TRO

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Published by AviS.Adelman

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Published by: AviS.Adelman on Sep 28, 2012
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05/13/2014

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- 1 -
CAUSE NO.: DC-12-10604
MELISSA KINGSTON, § IN THE DISTRICT COURT§Plaintiff, §§v. § DALLAS COUNTY, TEXAS§AVI ADELMAN, §§Defendant. § 95
th
JUDICIAL DISTRICT
DEFENDANT
S MOTION TO DISSOLVE EX PARTE TRO
TO THE HONORABLE JUDGE OF SAID COURT:COMES NOW the Defendant, AVI ADELMAN (
Defendant
), by and through theundersigned counsel, and makes this motion for the Court to dissolve, or alternatively, modifythe 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 onSeptember 12, 2012, which at its core involves Defendant
s purchase and alleged use of adomain name,www.melissakingston.com. 2. Plaintiff alleges multiple causes of action, including misappriation of name, injury tobusiness reputation, misappropriation of a common law mark, the Texas Theft Liability Act, andalso 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 95
th
District Court. Thetemporary restraining order included several provisions relating to both the domain name inquestion as well as Defendant
s ability to come within 1,000 feet of Plaintiff 
s residence orworkplace.
Filed12 September 17 A9:11Gary FitzsimmonsDistrict ClerkDallas District
 
- 2 -4. The presiding judge of the same court then recused himself from this case, and theHonorable Judge John Ovard, presiding judgment of the First Administrative Judicial Region,assigned this case to the 44
th
District Court for hearing.
II. MOTION
5. Pursuant to Tex. R. Civ. P. 680, Plaintiff moves the Court dissolve the Ex ParteTemporary Restraining Order immediately.6. Alternatively, Plaintiff moves the Court modify the Temporary Restraining Order todispense with and remove any limitation on Defendant
s movement.7. Defendant would also request the Court expedite hearing of this motion to a time onMonday, September 17, 2012, or Tuesday, September 18, 2012. Plaintiff is aware of Defendant
s intent to file this motion, and so an expedited hearing would not surprise or beprejudicial to Plaintiff.
III. ARGUMENT
8. Many provisions of the Temporary Restraining Order are unrelated to the causes of action presented by Plaintiff 
s suit, and are further in applicable and pre-mature since thebehavior from which Defendant is restrained has never occurred.9. Specifically, Defendant has not sent any communication pretending to be Plaintiff andhas no intention to do so. Defendant has not created a website using the domain name thesubject of this suit, and has not posted any content to such a website. Defendant has not usedPlaintiff 
s name for any commercial purpose whatsoever.10. Further, Defendant has never made any threat of any kind towards Plaintiff, directlyor indirectly, which would justify the provisions of the Temporary Restraining Order whichrestricts Defendant
s movement.
 
- 3 -11. The parties live in the same neighborhood, and this suit arises out of variousneighborhood-related disputes. Though they do not agree on much, Defendant has neverthreatened or committed and act which compromised the safety of Plaintiff.
Plaintiff’s
suit,largely involving business and property related claims, have nothing to do with the restrictiveprovisions of the Temporary Restraining Order.12. The provisions of the Temporary Restraining Order do nothing to preserve the statusquo or preserve Plaintiff 
s claims, but only unnecessarily and excessively burden the freemovement and activities of Defendant.13. For these reasons, the Ex Parte Temporary Restraining Order should be immediatelydissolved.
IV. PRAYER
WHEREFORE, Defendant prays the Court grant this motion and the relief requestedherein, and grant all other relief, at law or equity, specific and general, to which Defendant mayshow himself to be entitled.Respectfully submitted,
T
HE
N
ICHOLS
L
AW
F
IRM
,
P
.
L
.
L
.
C
.
____________________________________JUSTIN P. NICHOLSTexas Bar No.: 24081371106 S. Saint Mary
s Street, Suite 255San Antonio, Texas 78205(210) 354-2300 phone(800) 761-5782 facsimileJustin@TheNicholsLawFirm.com
ATTORNEY FOR DEFENDANT

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