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Atlanta Fiberglass USA, LLC, v. Sinoma Science & Technology Co. Ltd.,

United States District Court, N.D. Georgia, Atlanta Division

May 7, 2018

ATLANTA FIBERGLASS USA, LLC, Plaintiff,
v.
SINOMA SCIENCE & TECHNOLOGY CO. LTD., WANG YI, LIU TIEJUN, DING GUANBAO, and XI JIANYA, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff Atlanta Fiberglass USA, LLC's (“AFG”) Motion for Temporary Restraining Order (the “Motion”) [5].

         I. BACKGROUND[1]

         AFG is a Georgia limited liability company owned solely by Mr. Madanjit Oberoi. Defendant Sinoma Science & Technology Co. Ltd. (“Sinoma”) is a company organized under the laws of the People's Republic of China. The individual defendants Wang Yi, Liu Tiejun, Ding Guanbao, and Xi Jianya, (collectively, the “Individual Defendants”) are officers of Sinoma and citizens of the People's Republic of China.

         AFG is a worldwide distribution and manufacturing company dealing in high quality fiberglass fabrics. Sinoma is a producer of filter fabrics in China. On September 10, 2012, Sinoma and AFG entered into a Sales and Marketing Agreement (the “Agreement”) by which the parties agreed to engage in a “joint venture” to provide Sinoma access to North American markets. ([8.1]). From 2012 through June 2016, the parties performed under the Agreement.

         In June 2016, near the expiration of the Agreement, the parties amended the Agreement and extended the relationship for another four years (the “Amendment”). ([8.2]). Among other changes, the Amendment altered the way in which AFG was paid. For the first time, customers were required to deliver payment directly to Sinoma, instead of the AFG, and Sinoma was then required to pay AFG an eight percent commission.[2]

         AFG alleges that, immediately after entering into the Amendment, Sinoma began taking steps to circumvent its obligations under the Agreement and Amendment, including failing to pay commissions, contacting AFG's customers, exchanging purchase orders and invoices without notification to AFG, and improperly using AFG's confidential information.

         On April 30, 2018, AFG filed its Complaint asserting claims for breach of contract, defamation, fraud, breach of fiduciary duty, and injunctive relief. ([1]).

         On May 3, 2018, AFG filed its Motion seeking an order requiring unidentified third-party customers of Sinoma (“Sinoma Customers”) to refrain from paying or transferring funds to Sinoma for a period of ten days and for leave to immediately serve discovery on Defendants while they are visiting the United States, including an order that Defendants present a corporate representative for a deposition on May 9 or 10. ([5]). AFG submitted scant factual information by affidavit or verified complaint to support the allegations offered in the Complaint and Motion.

         On May 4, 2018, the Court held a telephonic conference during which the Court determined the Motion did not meet the requirements of Rule 65 of the Federal Rules of Civil Procedure and declined to grant, ex parte, AFG's motion for a temporary restraining order. AFG represented in the Motion, and confirmed during the telephone conference, that the Defendants would be in Atlanta, Georgia, arriving on or about May 5, 2018. AFG further represented that it would serve the Defendants with the Complaint, Motion, supporting filings, and the Court's May 4, 2018, Order on Sunday, May 6, 2018. The Court scheduled a hearing on the Motion for Monday, May 7, 2018. ([7]).[3]

         On May 6, 2018, Defendants were served with copies of the pleadings and the Court's May 4, 2018, Order directing them to be present or represented by counsel at the hearing. ([9]). Also on May 6, 2018, AFG filed its Amended Complaint. ([8]).[4]

         On May 7, 2018, the Court heard oral argument on the Motion. Defendants were not present or represented by counsel and they did not contact the Court to represent that they desired to attend but were unable.

         II. DISCUSSION

         To be eligible for a temporary restraining order or preliminary injunctive relief under Rule 65, a movant must establish each of the following elements: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest. See Schiavo ex rel. Schindler v. ...


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