In trademark infringement cases, courts may grant emergency Temporary Restraining Orders (TROs) to preserve the status quo when defendants attempt to open a business under an allegedly infringing name before a preliminary injunction hearing, particularly when such actions constitute bad faith by rushing to open days before the hearing to prevent the plaintiff from presenting their case. The court considers factors including the viability of the trademark claim, irreparable harm to the plaintiff's reputation and goodwill, and the balance of equities, which weighs against defendants who strategically altered the status quo by opening the business prematurely.
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Rutherford v. Robinson et al.: TRO Hearing (25CV006709)Added:
All right. Well, let's get on the record then. This is 25 CV 006709.
Um, and it is Rutherford versus Robinson and several other defendants.
Um, let's figure out who is here in court.
um and who we've got online and then we've got about two hours um if we need that much time to sort out what's going to happen this weekend. Um so who's here for Miss Rutherford?
>> Good afternoon your honor. Justin >> and this would be Miss Rutherford.
>> Miss Rutherford. Yes, sir.
>> Good to see you again, Miss Rutherford.
>> Mr. Kenner.
>> Good afternoon, your honor.
>> How are you?
>> Fine. Yourself? My understanding is that you represent Miss Robinson and I see there's a Bobby on Zoom. That would be Miss Robinson.
>> You now represent Mr. Py. I can see him.
He's on the screen. You represent E32 LLC. Yes, sir.
>> And you have a big portfolio. You represent Herold's Icebar.
>> Correct.
>> Which would be a business venture between Ms. Robinson and Mr. Py.
>> Correct. You do not, nor does anyone, I believe, represent Harold's Enterprise.
Correct.
>> Okay.
>> In fact, no one is here for Harold's Enterprise. Sadly, everyone is because that was sort of the original LLC, but it is was a defendant added by Mr. Edge, but represented by no one and is in default, I think.
>> Correct.
>> Okay.
>> All right. Great. Um we are here a few days early um [clears throat] for a hearing on um a new emergency TTRO. We had a TTRO hearing a long time ago. In fact, got my stuff back here.
>> Um yes, you guys were going to mediate. I have it in red. Mediate.
>> I'll hear from you in a sec. Unless you've resolved things.
>> No, sir. It was a preliminary junction.
>> Okay.
>> Uh yes, sir.
Um we had a hearing in this case um before um and Mr. Edge and Mr. Swift were here. Um back then E3 had um Arnold Golden Gregory representing it. Um Mr. Py was present I think virtually because E3 is his company but um he wasn't a defendant at that point. And then you Mr. Kenner represented Ms. Robinson >> and you're right. It does see say say here preliminary injunction. Be that as it may, it related to what we're talking about. It related to um the business um on Edgewood that had been um Chicken and Ice and the business divorce, lack of divorce. Some people might call it a kidnapping. Others call it a walking away from or abandonment. And I'm going to hear from both sides. I'm not taking sides. I'm just mindful that there are two sides. Um but we had that hearing a long time ago. Um but what has changed um is that now um the Edgewood property um is either already reopened or is going to reopen in 4 hours and I'll hear from both sides on that. I've been doing my reading um but um it's in play again um but now as Herold's Icebar um which would be a joint venture and I don't mean that formally. It might be a partnership or something, but it is a business arrangement between Ms. Robinson and Mr. Py, notably to the exclusion of Ms. Rutherford. Um, and so we do have something scheduled for next week, which I think is a continuation of the preliminary injunction hearing. Um, it's all injunctive relief, whether it's a TTRO or preliminary injunction. You guys don't have to stay standing. I'm going to give you each a turn to talk.
Um, I just want to let you know sort of where I've gotten so you don't have to backfill. Um, or you can quickly correct me. Um, but the reason why we couldn't wait until next week to really talk about some of the same stuff was Miss Rutherford's perception. Um, and by perception, I don't mean you're wrong.
It just I'm hearing two sides to it. Um, that there was something big about to happen this weekend with the property.
um that has always been not always but of late associated with Harold's Chicken and Ice and it is going to be reborn as Harold's Ice Bar. That's potentially a trademark issue, etc. Um and we couldn't wait until next week because of um the change in circumstances that would be created by I'm going to call it the grand opening. I appreciate that maybe there was already a soft opening, but just for nomenclature, let's call this weekend the grand opening of Herald's Ice Bar. Um, and so it was that event that precipitated Mr. Edge to say, "Hey, we can't wait until next week because maybe the horse is out of the barn by then." Um, and so we need to see if there is some type of injunctive relief that ought to be put in place immediately that we would then talk more about next week at our regularly scheduled hearing. Is that sort of a I'm going to start with you, Mr. Edge. I I have a bunch of questions for you, but um am I sort of setting the stage or tell me what I'm missing?
>> Well, a few things, your honor. Mr. Pin has has always been a party that he was added later on, but is >> it's always been Mr. Pin and E3.
>> E3 too. Yes, sir. And >> who represented Mr. Py um back when we had our initial hearing?
>> Knox Withers, Kelsey O'Neal with the law firm voting.
>> So, they represented both Mr. for py and his business.
>> Yes, sir.
>> I just my notes just said E3. Um I'll write pim down there, too. So, sir, >> both have always been in um originally um AG represented them and >> withdrawn from the case. And your honor, also at that hearing, we learned for the first time that Mr. Pam and that Bobby Robinson had partnered and formed a corporation, Herold's Ice Bar, Inc. We later filed a motion to add them as a pardon defendant and you granted that motion and then they became a part of this litigation.
>> Okay. That that I agree with. Um I mean I agree with all that that to me the addition is no no Mr. Py was in from the beginning.
>> Yes sir. And also one one final thing honor um the name of [clears throat] the business is Harold's Chicken and Ice Bar and that is still the name of the business that they are trying to reopen.
So after that hearing, we supplemented our uh preliminary injunction brief and we basically made an argument about commonal law trademark infringement. And that's kind of what this case has morphed into.
>> It's been a lot of back and forth about trademark. And I'll tell you what was particularly helpful was reading um Mr. Withers and Miss O'Neal's brief on it from way back when. I know they're not in the case anymore, but it's in the docket. And that was a good frame up and I I saw some of it resurface and Mr. Kenner's response to to the TR and we're going to talk about that today some. Um, but I I I do want you to clear up one thing for me and then we have to take a quick pause. I'm presiding today, too.
Um, that wasn't on my schedule, nor was this. Um, but a colleague was unavailable to be here today for his presiding duties, which is why I swore in that officer, and I have another presiding thing that we're going to deal with in just You're with DCS?
>> Okay, we're going to deal with that in just a sec. Um, but um, Mr. edge.
What? I I could have sworn. Um I don't need to swear. Um let me look at your fifth amended complaint. More on that in a minute. Um it's coming up slowly.
>> Yeah. So, Harold's Ice Bar, um, that's a party. Um, that's just the corporate name, but not the name. If if I went to, um, >> I'm sorry, sir.
>> Well, I'll I'll ask my question more clearly in a minute. I just want to get the right street address. What's the street address on Edgewood? 350 >> 349 >> Edgewood. Okay. If I went to 349 Edgewood right now, if we took a field trip, we all went down there. Um, is there a sign up outside that says this is the name of the place? And if so, does it say Harold's Ice Bar or does it say Harold's Chicken and Ice Bar?
>> Well, you're on there. Had my client to go out to the property yesterday.
>> I love it cuz we were going to see what Google Map showed us >> and took a picture. The outside is the exact same as when M Brother owned the business. Okay. the exact same name, same son, same everything.
>> But I'm not mistaken in saying that the defendant you added was Harold's Ice Bar because that's the corporate entity that Mr. Py and Ms. Robinson >> trying to manage this business. So the business is Harold's Chicken and Ice Bar. They use Harold's Ice Bar to own and manage the franchise.
>> Okay.
>> Yes, sir.
>> Got it. So Harold's Ice Bar, that name, that's not a place I could go visit and order some chicken and get a beer. I would be going to Harold's Chicken and Ice Bar, which was the name we've always been dealing with.
>> It's the name that Miss Rutherford and Miss Robinson created. Articles that's out there.
>> We got it. I don't know that you're going to get push back on that notion.
Even Mr. Kenner's briefs say yes, there was that and then someone walked away from it. Um, so um, thank you for clearing that up. That's right.
>> Be ready for questions from me in just a moment.
>> Sure.
>> Um I need to look at this.
>> Okay.
>> Um so you are ma'am from DCS. You are >> um Officer Davis.
>> Officer Davis. Are you assigned to a particular judge or a unit?
>> So my judge is Judge Whitaker. She is out in intersect out and my senior assistant Chief Carlson and asked if I could come here signed by the presiding judge.
>> Okay, that's me. And all you're trying to do is to dismiss >> operational warrant for >> for Mr. Holmes and then have him just appear in court for the end of the month.
>> Got it.
>> Okay. So, it's he he knows there's an issue. He Mr. Holmes and he's going to show up, but it's going to be a self-report thing. That's the Yes, sir.
>> Okay. All right.
>> Here we go. Thank you.
>> All right, Mr. Edge. Yes, sir. Tell me when Ms. Rutherford first learned about um the festivity, the grand opening, what we're calling the grand opening.
>> She found out about it May 12th. Um on May 11th, the Mr. Pam and Miss Robinson used Harold's Enterprises social media account to post a flyer inviting people out to the grand opening. That was the first time that it was on the internet.
>> It was the 11th and your client saw it on the 12th.
>> On the 12th.
>> Okay.
>> I received that and almost fell on my face because I'm like, why are they opening a restaurant under a trademark that's in dispute that's subject to our motion for preliminary injunction, subject to the hearing days before the preliminary junction?
>> No, I get you. you your argument is this is highly suspect timing. It's to try to get out and running before there'd be an injunction because then the status quo is well they're already in business. I I I appreciate your read on it. You're saying that um Miss Rutherford became aware on the 12th, so 3 days ago.
>> Yes, sir.
>> Okay.
>> Cuz they posted it on the 11th.
>> Um you've hopefully read what I've read, which is Mr. Kenner asserting um that actually um the restaurant um is open now and has been for a few weeks. There was a soft opening. Um do you have any reason to disagree with the statement that last weekend I could have gone to 349 Edgewood and had me some good chicken and whatever beverages they serve.
>> We would have had to known. That's the thing. And and and so >> but you have a reason to doubt that. I'm not >> I don't your your honor I don't have a reason to doubt that but can I add some color to that? A couple of weeks ago I had a call with Mr. Kenner and that conversation was more so like maybe a 6.4 conference between myself Don Swift who's not here. He's on vacation with his family. He'll be back on Tuesday and Mr. Kenna. And the basis of that call was because we sent discovery requests to all of the parties, right, concerning um one, when was the restaurant going to open? Communications between Bobby Robinson, Cameron Pim, things that we needed right before the preliminary junction hearing. Mr. Kenner tells me, "Wait, we can't give you that information, right? we can't give you that information before the preliminary junction hearing because it's harmful to my clients that we we can't give this to you. So then he ends up filing a motion to dismiss a frivolous motion to stay and the argument is we have this preliminary injunction hearing that's upcoming. This would be detrimental to my clients. But then after the conversation, they go behind my back, my client's back, the court's back, and tries to open up the restaurant. And then don't pull me into it. I haven't said no one can open a restaurant, so no one's going behind. You may feel like um someone wasn't upfront with you, but um I I I didn't issue any rules or regulations saying one side can do this or one side can't do that. So um but I appreciate you adding that color. um a request if you're going to continue to amend your complaint. We're on version six now.
>> Five.
>> Well, fifth amendment, fifth amendment would say to me there six because your first amended would be your second, >> right? Yes, sir.
>> Get your complaint. Your first amended.
We're on the fifth amended. So, that's six.
>> Um it's real hard to know what's changed. You don't you're going to tell me in a minute cuz I'm going to ask. But I spent a whole lot of time looking at the fourth amended which was the current one and comparing it to the original like okay what's changed? What's changed? And some of it has been responsive to things that the defense files and I appreciate that. Um but it's real helpful to give a reader's guide up front. Either all you do is include the things that are new and you adopt everything else or at least there's a paragraph that says, "Hey, we added count six. Everything else is the same."
because without saying it, I don't know.
I mean, account one still says whatever it says, but maybe you put something different in there. And um I I don't know what's different and and so I'd ask >> Yes, sir.
>> direct that if you are going to file a sixth amended complaint, which would be the seventh complaint in the case. Um you include either in it or with a separate filing, here's what's changed.
Yes, sir. Um, it's just it's the right way to allow everyone to to reorient.
>> May I respond to that, your honor? Yes.
All right. So, we filed the sixth amendment complaint because >> it's the fifth [laughter] amendment complaint. Fifth minute complaint. Sixth one. Yes, sir. Because we added a verification from M. Taran Rutherford because we forgot to add one to the >> But that's it. The only thing is the difference between fifth amended and fourth amended is a verification.
>> Yes, sir. So if I'm if I spent some time digesting fourth, I now have just digested a verification as well.
>> Got it.
>> Right. In the fourth, it was in response to um Robert Kenner's motion to dismiss.
>> That was very clear.
>> He basically said that we didn't have a torturous interference claim against Mr. Pam between Harold's Chicken Corporate.
I >> I read the motion to dismiss and some of them were you don't name all the defendants in some claims and But we I'm going to talk about the motion to dismiss before we wrap up today as well.
Yes, sir.
>> Um okay. So the the change from fourth amended to fifth amended is a verification.
>> Yes sir. Then and the ones before then came you know we haven't gone through discovery right about discovery also.
>> Yes sir. So we find out a lot of information at the preliminary injunction hearing. And so that's how we ended up morphing our complaint to add several claims, right? Like the common law trademark infringement claim and some other claims. And so that's essentially what has taken place, right?
Yes, sir. Okay.
>> Cuz we were finding out information through the early phase of the lawsuit.
And so we had to shape our complaint to the facts that we learned. So that's how we ended up getting to this point.
>> Got it. Yes, sir. Okay. Before I ask you to share with me why you think I should grant the TTRO, Mr. Kenner, um is there anything procedurally you want to share?
You will be given a full chance to say here's why the TTRO isn't appropriate at this time. Um so this isn't your time to do that, but um I I was just trying to get oriented. It's been a while since I saw everyone. I want to make sure I'm up to speed. And as I grouse a little bit, fifth amendment complaint. I don't even know which version we're on now, but I get it. It's basically fourth. Um, and with that, I am current.
>> Yes. No, Y, I think you you have um laid out the [clears throat] the the history of of the case. Um, the last time we were here, we were here for preliminary injunction. I think I was on cross- examination of the plainting of the time and then we had to stop. So, let's move.
>> Okay. Got it. All right. Um, so Mr. Edge, I'm ready to hear from you. I'll tell you um you can cover anything you want but here are my areas of um concern um about um providing um injunctive relief at this point in time. Um one is the viability of the trademark claim and I should tighten that up. the viability of Ms. Rutherford's ability to bring a trademark claim if in fact it's Herald's Enterprises trademark claim, which I think kind of structurally it is. So, you're going to talk about that?
>> I will.
>> And then um even more so, the irreparable harm.
>> Yes, sir. Because if I agreed with everything you put forth in your motion and in the fifth amended complaint, it sure seems like in the end Ms. Robinson and Mr. Pim could stroke a check and Miss Rutherford would get her share of whatever had happened. Um, but you're shaking your head and so that's why we're here. So you can educate me as to um why the sky falls if Harold's Chicken and Ice Bar continues to operate under that name, not Harold's Ice Bar.
Um, uh, at 349 Edgewood.
>> Well, I'll start off by saying that, and I think you you read it right, your honor. I do believe that the defendant accelerated the opening process before the hearing because of bad faith. Right.
There's all the conversations that I had with Robert Kenner, he never once told me that his clients were preparing to open um would have appreciated uh a heads up about them trying to open the restaurant, especially days before the preliminary injunction hearing. And it shows that this was intentional infringement, your honor. Um, and even the defendants admitted in their response motion that the um the let make sure I say this right, that the status quo has been altered. Right? They're saying, "Well, we have this TTRO that uh that we have this TTRO that's pending, that we're open, that we have balloons, we have ribbons, that the status quo has altered." But your honor, they're wrong.
And here's the reason why they're wrong is because Georgia law says so.
In the case of Inkaholics Luxury Tattoos Georgia LLC versus Pardon, which is 324 Georgia AP769 2013. The parties were fighting over a trade name. While in litigation, the defendants argued that the use of the alleged infringed name altered the status quo. The Court of Appeals rejected this argument. The court held that in a trademark infringement case, the status quo to be preserved by an interlocatory injunction is not the situation of contested rights, but that the last peaceable non-contested status of the parties. So what does this mean?
The court does not treat the defendant's ongoing use of the allegedly infringing trademark during the lawsuit as the normal situation that deserves protection. Instead, the court looks back to what was the situation before the junior user began using the mark.
>> So, two two questions about the applicability of that case. One, what does junior user mean? Um, and how would that apply here? Cuz I think we've got 50/50. So, there's not a junior, there's a equal. Um, which I think would make your client's claim stronger because there's not a she wouldn't wasn't a lesser partner. Um, but two, you're going to need to weave into um all of your responses in the trademark area the didn't she abandon it?
>> Okay. And and and your response to that because I heard the testimony. I've read the affidavit and um I think that there I I I'm not sure how you demonstrate a strong likelihood of success on the merits um that uh there was a point at which Miss Rutherford said, "Forget it.
This is you. We've driven this into a ditch. It's not working. I'm not interested in going further. I'm I'm out of here.
>> Yes, sir. Well, that's that's not what happened. All right. So, the first question was >> I'm sorry. What was the first question?
>> So, um the case you were citing, talked about the status quo isn't the junior person using it. And and um Ms. Robinson is not a junior user. She would be a co-equal. So it wouldn't be the case that M. Rutherford was a 70% owner of the trademark um and uh Ms. Ru Ms. Robinson was 30. They were at the time if there was no abandonment 5050, your honor.
>> Or they were neither because of course it's Harold's Enterprise, >> your honor. Well, it's not just Bobby Robinson. It's Cameron Pim. Cameron Pim wasn't a party to the agreement with Harold's chicken shack, right? They didn't he didn't have an agreement with Christian Pierce.
Taran Rutherford, Bobby Robinson did. He didn't. That's the problem. They created a new company to use this trademark that she owns 50% of.
>> Why do you use the past tense?
>> She owns it.
>> Okay.
>> Yeah. She hasn't relinquished it. She hasn't abandon it. Abandoned it. What happened is, yes, she got frustrated and she said, "Hey, man, like this is this is just too much for me."
>> But then she told them, "Well, no, it's not." She rescended whatever offer she made. She rescended it and she has every right to do so because she saw that there was conspiracy, there was fraud, and she rescended that offer. So, she never abandoned it. And also your honor, the interesting thing about this and something that I read in defendants's motion was that they're saying that this right belong to Harold's Enterprise.
Right. But a fact that Mr. Kenner failed to mention is that Bobby Robinson terminated the company. She dissolved the company. So what happens when a company is dissolved? the assets are distributed to the shareholders equally.
So what does that mean? That means that Bobby Robinson owns a half of the trademark. Taran Rutherford owns a half of the trademark. SO BOBBY Robinson cannot open a restaurant under the name [clears throat] Harold Chicken and Ice Bar at the 349 Edgewood Avenue without the consent of Tan Rutherford. and Tan Rutherford cannot open Harold's Chicken and Ice Bar at 349 Edgewood Avenue without the consent of Bobby Robinson. That was the agreement.
And so the argument that Mr. Kendler is making it is a fatal argument. She owns that trademark. She has every right to that trademark.
>> Well, she co-owns it.
>> You're right, your honor. She co-owns.
So, she has some rights to it, but she doesn't have exclusive rights, which is what your argument is about Miss Robinson, that Miss Robinson shouldn't be able to do something, I guess, without M. Rutherford's sign on.
>> She can't do the same thing, your honor.
It It's like they can't have it both ways here. Like, she can't do it. Miss Robinson can't do it. And your honor, as we told Mr. Kenner, they can open a restaurant. It just can't be named Harold's Chicken and Ice Bar because she owns have interest in that trademark.
Now you ask me, "Well, Mr. Edge, I'm having trouble understanding the irrepable harm piece."
>> Right. Before you shift gears on that, um, Miss Brousard, how are you?
>> Good. How are you?
>> I'm well. I need your driver's license.
Um, because that's how I see Yep. Look at that. You live um in Atlanta. So, if you give it to Sarge, she'll get it to me. Um, then I can sign this. All right.
Um, so Mr. Edge, you were about to get to the irreparable harm part.
Also, I forgot. Well, client pointed something out, your honor.
>> Thank you.
>> You guys confer for a second. I can check this out. [sighs] What are you going to be studying at Morehouse?
>> Like to get an MD.
>> Congratulations.
It's a long road, but you'll make it.
You will make it. [sighs and gasps] All right. [clears throat] >> Okay. All right. Irepable harm >> there. Before that, your honor, there are there are some facts that I want to weave in that I think that we didn't cover. And I'm sure you remember this.
remember they told Miss Relever that they were closing the business. Right? So at that point she threw her hands up and said listen let me try to sell. Right? But then she discovered that there was conspiracy and there was fraud and she was like no I'm not about to give you this this company.
I'm not going to do that. And then also um another thing is that we have this affidavit from Ms. Christian >> [clears throat] >> um Diane Pierce who has since passed away who said that she never authorized she never agreed to them opening up this this restaurant under this name. And I know that's not really our point to make, but I just wanted to add that color.
>> But which name? I thought your whole point was >> Chicken and Ice Bar at 349 because she said that. But what what if we go back four years and Ms. Rutherford and Ms. Robinson are still talking and they're running a business at 349 Edgewood. Was it not called Harold Harold's Chicken and Ice Bar?
>> Yes, sir. It was called Harold's Chicken and Ice Bar, >> right? It was called this. So, >> but you just told me that the franchiseor never in her affidavit said, "I never let them open a restaurant with this name."
>> Bobby Robinson and Cameron Pam. She never agreed to them opening up this restaurant at this location because your honor, this is the flagship restaurant.
I mean, this this is the [clears throat] known restaurant on Edgewood Avenue and everyone knows that >> or it had been till it closed >> till it closed. and it was closed and now it's reopening under the same name.
>> Under the same name, same menu, same drinks, same hookah, same everything.
Same sign on the door.
>> Yep.
>> Right. And so when we talk about irre irreparable harm, the defendants [laughter] have accelerated and compounded consumer confusion. Like we just said, same sign on the door, same menu, same service model, this quick this ser this lounge service model and the same advertising methods as as I mentioned earlier, your honor, they're still using [clears throat] the Instagram account that Tan Rutherford helped build.
They're advertising the reopening of Harold's Chicken and Ice Bar to the customers that Taran Rutherford helped generate. These are people that know Taran Rutherford. These are people that know Bobby Robinson.
These are people that read the Rolling Out magazine where Bobby Robinson is saying that Taran Rutherford and I created this name that we were college friends and we created this service model. This is something new. We are on edgewood. This is the place where you should be. Right. And so the defendants have caused immediate injury to Miss Rutherford's reputation, her goodwill, the brand control that cannot be easily quantified. What if there's bad food quality? What if there's bad service?
What if the the restaurant isn't clean?
What if the pricing is too high? What if the customer experience is not good?
that's associated with Miss Rutherford's brand. I tell you this, judge, um this weekend I'll be celebrating my 10-year um college reunion. I graduated from Morehouse in 2016. This is my 10 year um anniversary. And when I was a student at Morehouse, if you were to ask where I would be on a Friday night around 7 o'clock, I would be at Harold's Chicken and Nice Bar on Edgewood and I would be there with my friends, right? So, let's say >> you're going to go this weekend.
>> I won't cuz I have two hearings next week.
I will not, unfortunately. But what I will say is think about this weekend, your honor. It's been 10 years since I've been to Harold Stick and Ice Bar.
And I walk in, same sign on the door, same menu, same waitresses, same bartenders, same tables, same friers. We talked about friers last time, but everything is the same. But when I get there, the food doesn't taste the same.
The drinks doesn't taste the same.
Nothing is the same. And I say to myself, what in the world has happened here?
This is not the same place that I went to that I used to go to 10 years ago. So what would I do? I would go to Google review and I would put on Google review, I am highly disappointed in Tam Rutherford and Bobby Robinson. What happened to Harold's Chicken and Ice Bar? This is not the place that I used to go to. This is not the place that became my home. This is something different, RIGHT? SO THEN MILLIONS OF people would see this review and they will associate that to Terry Rutherford.
So what how is that different than if Mr. Py had bought Ms. Rutherford out and they clearly had a discussion about that and they were close to a buyout. So Miss Rutherford, there's actually a paper trail that she's out. You bought me out.
I'm done. I don't have anything to do with this building, this business. you have my share of Herald's Enterprise.
So, it's now Pim and Robinson. And fast forward to this weekend and you don't have two hearings next week. And so, for your 10th college reunion, you and the guys go there and it's a dud, but you had no idea because who follows that that Miss Rutherford sold her shares to Py and you go online and you say, "I am highly disappointed in Taran Rutherford." Well, you're misplaced in your disappointment. M. Rutherford might feel bad when she reads it, but what is her cause of action? And really, what's the harm to her? Um, but that same situation could come to pass. Well, I'll tell you this, your honor. The defendants robbed that opportunity to find a solution for Miss Rutherford because guess what? Had they not stole the the business from her and tried to steal the trademark from her, they could have entered into an agreement, right?
And what could have happened? They could have played damage control. They could have gone on social media with all three of them. Hey guys, I'm no longer with this company. Bobby Robinson and Cameron PMR together. They are the new owners.
They could have advertised this everywhere. They could have worked together, but they didn't want to do that. What do they want to do? They wanted to steal from Miss Rutherford.
And so you're talking about the harm.
Money can't cure this harm. Money can't cure harm to her reputation. Money can't cure harm to her goodwill. Money can't cure harm to uh her reputation. Like money can't cure any of that.
Every operational day increases customer confusion, advertising penetration, and that's what they're doing. So tell me what the customer confusion is.
>> The customer confusion is, as I said in my hypothetical, I walk in the store, right? I think Taran Rutherford is still an owner of this location.
>> Right. Right. But what does that have to do with I mean, if you end up having a great meal and you post online, Taran Rutherford is the bomb. She continues to run a great restaurant. She's getting free positive publicity. Should she be paying Py and Robinson for that? Dang, I didn't do anything. And you guys invested 3/4 of a million dollars to spiff this place up. And people are saying Rutherford, she's great.
>> But your honor, it's the threat of harm.
That's what we have to look at. We're not looking at the positive. We're looking at the threat of harm. And that's a part of >> Why do I assume that it's going to You're you're asking me to assume that it's a bad outcome. The threat of irreparable harm generally is they're going to cut that tree down. Well, once the tree is cut down, you can't put the tree back up. That is irre you cannot repair a cut down tree. And if they're allowed to go forward, we know the con we know the consequences. Tree is removed. Here you are saying what if there's a bad experience? What if there's a great experience? What if it's better? And people say HCIB 2.0 even better. I'm gonna reach out to Miss Rutherford and see if she'll help me start a business. And she gets spin-off business for something she she didn't even do.
>> Well, your honor, with as far as the customers, Miss Rutherford will lose control of the of her identity in the market, right? So, she owns the the trademark and when it comes down to Kamla trademark that the law is treated a little bit in my opinion, it's a little bit more sensitive, right?
because it's like you said the analogy, the horses are out the barn, right? And so we're trying to do all that we can to prevent the horses from going out of the barn. and and and that's and that's why we're seeking this temporary restraining order is because we are trying to preserve the status quo so that when we come to Tuesday there can be a final decision that's made that whether this restaurant is going to shut down for the duration of the trial or they're going to open and whatever the court so chooses we have to accept that but we want the opportunity to be able to have our day in court and the defendants tried to usurp that your honor and and think about it. They strategically did it. They did it days before the hearing.
As I said earlier, that is the epitome of bad faith. You do it days before the hearing so that they could come to court and say, "Your honor, we're open. We have lines down the road. We're doing great. We're on the radio. We're everywhere." They wanted the opportunity to do that, to cut our chances from even being able to present our case to you.
And this was strategically done.
And the law says that this is improper, that they cannot alter the status quo by infringing on a trademark that Miss Rutherford co-owns.
And for those reasons, we ask that you find in our favor that you see that the balance of equities fall in our favor.
any harm that Bobby Robinson, that Cameron Pim, that Harold's Icebar that they suffered was self-inflicted because they always knew that we had this hearing. They chose to open up before the preliminary junction hearing. They could have waited for May 20th to open.
So, only a few days they could have, but this was strategic and they wanted to make our case tougher. And we ask that you see the bad faith that the defendants have done that you grant our temporary restraining order and that you allow us to come back on Tuesday for the preliminary injunction.
>> What point me to it may have been something from our last hearing. It may be somewhere in the pleadings. Where do you anchor your claim that Miss Robinson dissolved Herald's Enterprise? MR. KELLER, HE ADMITTED IT. to where where that is and how would Miss Robinson have the ability to dissolve a >> She didn't she unilaterally did it. We didn't know anything about it. Your honor, we sent her a >> So, is it dissolved if she doesn't have the ability to do it?
>> She did it.
>> Well, but does that mean it's dissolved just because someone says they did something?
>> We we have a claim for declaratory judgment to have the court to say that this company is not dissolved. But we have hope. Your your view is that it's not dissolved. That an effort was made to dissolve it, but it was basically ineffectual because a half owner can't dissolve a corporation. Your honor, according to the secretary of state, it's dissolved. Certificate of certification. It's a public public record right here. And remember, at the hearing, YOU WERE YOU WERE SURPRISED BECAUSE YOU WERE SURPRISED that Mr. Kenner, I mean, he blatantly said it.
Oh, yeah. The company is dissolved. She dissolved it. She dissolved it. and and your honor, we also attached a shareholder inspection request. We requested all of this. They never she never gave us anything. We sent discovery. They never gave us discovery.
We've just been in the dark this whole time. So that's why we've had to amend our complaint so many times because they're not even working with us.
They've been operating in bad faith since the beginning.
So when she dissolved this company, the assets flowed to Miss Rutherford and flowed to Miss Robinson. So a termination is the same as dissolving.
This is a certificate of termination.
Your honor, I see termination as being dissolved.
>> Okay. I'm not >> And I have an email that's a part of the record where I'm emailing Miss Robinson before she um retained [clears throat] Mr. Kenner where I'm trying to get Bush and Records and she say, "Oh, the company is over. The company is dissolved. There's nothing we can do. Go [clears throat] to the accountant." We send the accountant uh uh third party request. We never got anything from him.
Mr. Steven Betts, >> it was one year ago yesterday.
>> Yes, sir. So, [clears throat] we've been we've been working diligently.
You know, everything that the court has required us to do, we've done it. And what do the defendants do? They try to pull the rug from under us.
Okay.
Thank you. Thank you. This exhibit has a number. That numbering would have been from the hearing before.
>> Yes, sir. We I didn't get a chance to use it.
>> We didn't get as far as Yes, sir.
>> everyone Yes, sir.
>> had hoped.
>> Okay. Mr. Kenner, your thoughts. Um and why don't you start with since we're on the topic um the termination or dissolution of Harold's enterprise um which your client has advocated for as in this is a fact it happened and if so that does shift a little bit of the way I have been thinking about it um in and something you had um wisely positioned yourself behind which is this is Harold's Enterprises claim I think Harold's enterprise has any claims to make given I'm going to just call it exhibit 18 but your client I should be clear Robinson um her termination of that corporate entity um wouldn't that result then in the assets of the corporation flowing to the members so then um we really do have a trademark co-holder in the form of Miss Rutherford saying I feel like my trademark is being misused it's certainly not being used with my permission.
>> No, no, no, your honor does not. And let me tell you why. The parties had a conversation back in 2024 when the >> And when you say parties, because we've got Mr. Py in the mix, too. Who are we talking about?
>> We're talking about um we're talking about Miss Robinson and Miss Rutherford, right? the relationship, if the court remembers, there was some testimony and I think I got it out through cross-examination that the relationship between Miss Rutherford and Miss Robinson um became very south. Um and it went south very quickly after an allegation that Miss uh Rutherford stole from the business. At that point, your honor, um the two these two individuals never had any verbal communication after that. they had um text messages between the two. Um during that time the relationship the professional relationship broke down. Uh and that's when they started about talked about you know resolving the case. I mean not resolving the the um uh the uh business.
They talked about um getting rid of the business because at that point they weren't making any money. There was an allegation that they weren't making any money. I think Miss Rutherford tried to say, "Oh, we were still making money."
Um, but at some point, and I think it's in the record, that uh Mr. Pim approached M. Rutherford to buy her share, her half. They they never got to that point to where they executed that deal because um there were some issues with the bank and all and I think the parties kind of their their communications broke down. Miss Rutherford made it very very clear. We have it in text messages. I think she admitted it in the text messages when she was on on the stand that she wanted no parts of the business. She wanted to be out. Um, and she understood that the business was going to close. She also understood that at some point the business was going to reopen under new management and ownership without her.
The new the new manager and ownership owner will be Mr. Py as well as Miss Robinson. She didn't pay anymore in terms of um the bills for the business.
Um she didn't pay the employees. There was an issue where she had taken money from the from the account that almost drained the account. That evidence came came into play at the last hearing as well.
>> Um so you want to I didn't I didn't interview you. I mean >> you need to I'm sorry.
>> Yeah.
>> I could you're welcome to write notes to your client but no commentary on what's being said. So, so Miss Miss Rutherford acquiesed in the business being basically uh dissolved. Now, what Miss Well, remind me what your recollection is of the So, Mr. Py was the E32 was the landlord.
>> Landlord. Correct.
>> Okay. And so, Mr. Py as the member of E32, he's the landlord. Correct.
>> That's his connection to this.
>> Correct. And were they not was there not some commitment? I don't know if it was in a lease or what it was this buildout where um Harold's Enterprise had committed to spending money including 439 >> Herald Enterprise. It was between It was between >> 349. It wasn't the business that >> Well, let me just say this. prior to the company dissolving and the partners basically um uh the relationship sing according to the lease and and I think it was amendment three Miss Robinson and Miss Rutherford were supposed to do a buildout.
>> Okay. Well, whether you you you stick it to Harold's Enterprise or the two of them, there was a commitment on the part of >> it was it was Harold's Enterprise.
>> Okay. Uh to to to improve the premises, >> correct? Not only are we paying rent, but we're also committing to I'm going to make it up. Add a HVAC unit, but they were going to do something to >> build out and it was going to cost about over 200 something,000 to do >> and and they either were behind on it or they said like how can we do this? We we're losing money as an enterprise.
Correct. And so we can't we don't have $200,000 to do this improvement.
>> Correct. So they never did it. And so what happened was Mr. him went through his sources uh resources and what he did was able to uh get a loan from his his financial resources of uh I believe it was about $500 something,000. It was a lot of money and he was going to give Har's Enterprise about $250,000 or so for the buildout. But the um House Enterprise, Bobby as well as Miss Rutherford, they never completed the deal. So they were in breach. Um at that point, your honor, Miss Rutherford decided that she doesn't want to be a part of this deal. She didn't want to be a part of Hal's Enterprise or not Enterprise, but Hal's Chicken and Ice Bar. She also she had her own Hal Chicken and Ice Bar as well as uh my client, Miss Miss Robinson. She had I think at the time she had three.
She I think she still has three. Um I think Miss Rutherford has at least two.
Incidentally, your honor, there's a Harold's Chicken and Ice Bar in Illinois right now that's operating. And so um at the at the point where Miss Miss Robinson decided that she was going to basically send something in to the secretary of state state saying this business is is over. It's terminated because she did not want people coming back trying to sue her trying to sue um the business or whatever. She said it was over and it was by her.
>> What I'm I'm not remembering the name of the franchiseor. Miss Pierce.
>> Yes. Miss Pierce >> who's deceased.
>> She's deceased. But do we know if the agreement between her entity and maybe it was just a personal agreement, but regardless between Miss Pierce and and she Chicago >> so Chicago and Atlanta was, hey, Miss Rutherford and Miss Robinson, I bless you using my name, not Pierce, but Harold's Chicken and Ice Bar. Correct.
And you you do what you want down there.
Or was it because the way Mr. Edge was describing it that Miss Pierce had this vision. Changing his words a little bit, but that 349 Edgewood in particular was that Yep. If you guys are going to open something, it's 349 Edgewood. I am authorizing you to have Harold's Chicken and Ice Bar at 349 Edgewood. That seems peculiar to me that she would say it has to be at this real estate, especially given what you just said, which is, hey, Miss Rutherford has other Harold's Chicken and Ice Bar just like Miss Robinson does, which says to me they are both able to operate Harold's Chicken and Ice Bar and it may be for Morehouse grads and alums and whatnot. The 349 Edgewood is a magical space, but they both seem to have the ability, Rutherford and Robinson, to open up others. And so I'm I'm I mean, this is going to be Mr. edge on rebuttal, but I'm not understanding what the trademark dilution or confusion is. Let me ask it this way. Is it your understanding from the franchising agreement that Ms. Robinson, your client, if she wanted to open up another Harold Chicken and Ice Bar, she could because she's basically been given the ability to use that name um to operate a business like it's not be a car dealership, but a restaurant where there's chicken and there's a hookah, etc. and she could open one in Fairburn if she wanted to. Or she could open one in Alpharetta. Or was it specifically that Miss Pierce said, "Those are your spots. You cannot have any more. You have to come back to me. I have to appro like McDonald's. We have to approve the real estate. We don't want you putting one on a back road.
It's got to be a good place with high traffic."
>> First of all, your honor, was never a written agreement.
>> Okay?
>> Never a written.
>> Of course not. Right.
>> So, there was never anything that was writing that said that the parties that Miss Rutherford and Miss Robinson had to open up a specific location. They could have they could have opened it up in in Buckhead. They could have opened it up in Riverdale. They could have opened up anywhere. The only thing that they were allowed to do was use the name. Um, and the the the owner never said that either one of them or that both had to use the name together. That was never said, >> which is why M. Robinson has some heralds that are just hers.
>> Correct.
>> And you're saying Miss Rutherford, I'm remembering this testimony that she has one in Polola Road. I think she had one in College Park. Also, also Riverdale.
And also, your honor, there was another Har's Chicken Shack that was in the same location as actually I believe it was in the same uh right next to her business, which is House Ice Bar. And so the the owner never said, "Okay, you have to have it at a a particular location." She just said, "Just pay me. You want to use it, just pay me."
>> Okay. Um, was the Edgewood address the only one that was Ms. Robinson and Ms. Rutherford together?
>> Correct. That was the only one.
>> And Harold's [clears throat] Enterprise was really the owner and operator of the Edgewood one. It was That's how they were doing it jointly is that they formed Harold's Enterprise.
>> Correct. So, your client may have an LLC for her other Heralds. She may not, but more importantly, they aren't a Rutherford Robinson partnership that has since fractured.
>> That is correct.
>> Okay. So, this is the one location where I'm going to call it a joint venture between the two Rs. Okay.
>> Correct. And another thing I want to point out, y'all, I don't I don't know if the if the court remembers this, but there was no operating agreeing agreement between Miss Rutherford and Miss Robinson as to who would own the trademark. Uh if they own the trademark, as a matter of fact, I believe at some point they tried to trademark it, but they couldn't trademark it. Um so I I disagree with this whole argument that there is a there's there's some type of o ownership in this trademark. Well, why why tell me why um the and I don't want to get hung up on common law trademark because I know we we don't have a trademark that we'd go to the trademark office for. Um but there's certainly goodwill that's associated with this. No one has come in here saying, "No, man. Let me tell you, the Polola Road, that's the Heralds. This Edgewood one is fine. I go there if Pola's closed or if I get a flat tire and I couldn't make it back to Polola Road. The vibe seems to be that the Edgewood one that's sort of the mothership of Atlanta area heralds.
Well, if it was a mother ship and it would had such a great uh reputation at some point, then it wouldn't have closed. And >> so that's a fair point, but um I what I haven't seen is evidence which people could have gathered where I mean because we've got an affidavit saying, "Let me tell you um you've already criticized it, but the affidavit that a little dated about um the significance of the Edgewood Heralds." Um, and I just I didn't hear during the testimony or from argument on either side that the other Heralds were there were sort of I'm g first among equals that the Edgewood Heralds um if if someone was coming in from out of town like man I want to go to that Herald's place I've heard about.
They probably weren't talking about Riverdale. It's not a knock on that one, but they were probably talking about the Edgewood one.
>> Well, we don't know because I >> I definitely don't know. Well, let me just say this and and I will give I will give Miss Miss Rutherford her kudos. She has a very beautiful establishment out on Polola Road. It is very very popular.
I mean, it is it is gorgeous. And so, she is doing very well on Pola Road.
Now, someone may come to come to to Atlanta and said, "I want to go to Hal's Chicken and Ice Bar." And hey, you need to go to one in Polola Road because it's it's it's uh up todate. It's it's really nice in there. Um the food is great. I haven't heard any complaints about the food and so I would not I would not commit to someone saying, "Oh, I've got to go to the one in Edgewood because that's the flagship or the mothership."
>> Um, so your point is when um Harold's enterprise dissolved, was terminated, um there wasn't a trademark that dropped into anyone's lap because both of [snorts] the partners had the ability to use this name.
>> Correct. And neither one of them and I would argue honor that neither one of them exclusively owned it. I don't believe that they own I don't no you know we were talking about earlier well do they own 50% of it. I would argue I would argue that the owner the original owner of chicken and night chicken uh chicken shack or whatever owns that name as well. It's not been trademarked.
Nobody's filed for it. So and anybody can use that name. As I said before, someone is using that name right now in Illinois and I think Miss Rutherford knows that as well. The other thing your honor is again house if anyone can make the argument of ownership it would be the company. Everything that uh the plaintiff is saying in her in her now fourth or or fifth amend a amended complaint is talking about house enterprise. How's enterprise owned this house enterprise started this. It's not Miss Rutherford. It is not Miss M Miss Robinson. I would I would argue that neither one of them has any type of interest or ownership in it. The other thing, your honor, is council talked about being surprised.
>> He did >> and and all of his shocking and his bad faith and and we went out and scured it and opened this thing. Well, first of all, they have known since the uh the location first closed down in December of 2024 that Mr. Py and Miss Robinson were going to reopen and that they had they had spent so much money, time, and effort to try to get this thing open. They knew that. So that what they did was they sat around and said, "Oh, you guys can pump all this money into it to rehab it." But all of a sudden now once it's open, there's a problem. Um council talked about the fact that he didn't know that it was open. Well, it's all over the internet that it opened two two or three weeks ago.
That's all over the internet. Uh, and I'm pretty sure Miss Rutherford because she has people spying. She has people, you know, looking to see what's going on, she knows, she knew that it was open about 2 or 3 weeks ago as well. And so it was not something that um, we planned this. They went through the process of getting all of the um, permits, which took a long time. And so this was the weekend that after they received the permits three or four weeks ago or so, they decided that they were going to open and do a grand opening. Um, as a matter of fact, today there was a ribbon cutting from with the city. And so, uh, Mr. Py and M. Robinson, >> like Mayor Dickens was there.
>> Well, he I don't believe he was there, but his office there was his office was there. I mean, now you're going to have a hard time getting me to believe that the other heralds are as important as this one if the mayor was there.
>> No, no, no. The mayor wasn't the mayor wasn't there. I don't know if Muer had a ribbon cutting when she opened her her establishment in um uh Polola Road. But the point is, your honor, that these that uh the defendants have spent a lot of money and effort and time trying to get this thing open. And the court hidden on the court never said you can't open. court never ended an order saying it don't open until we deal with this whole preliminary injunction.
One thing that the court said during the last hearing and that I agree with wholeheartedly is that the remedy is damages. So, so if if they if well I agreed with you at first but Mr. Edge raised the interesting theory of but what's the dollar amount you put on the reputational harm let's say I I hope things go well for the business at 349 if it's going to keep operating um I hope it goes well um because frankly the rising tide lifts all boats if um it's a smash success someone's going to say heralds who I'm going to Pol um and they'll go to the wrong one they'll have a great time because you said that's amazing so that's great but if this Heralds is a bomb Um then um and it's associated in people's minds half with your client, meaning Miss Robinson, but also with Miss Rutherford. Um I hadn't thought that through. I don't know how you hang a dollar amount on that.
>> Well, let me say this, your honor. These two individuals, M. Robinson uh and Miss Rutherford are on a reality show.
>> The two of them.
>> The two of them. They're on a reality show called I think it's called The Flavor, right? They are together on it now.
>> There's a reality show of I believe five or six black women owners of restaurants and >> that must be spicy. What what is very spicy and what was what was demonstrated on that show was Miss Robinson's as well as um Miss Rutherford's opinion of each other as well as the fact that Miss Rob Miss Rutherford has indicated on even on the show that she has nothing to do with the Edgewood lo Edgewood uh location. So, she has been telling other folks that I have nothing to do with the Edgewood location. That's all on uh Robinson. So, and I don't see where there could be any confusion at this point. It's a very popular >> for me since I don't watch that show. I might be confused, but I'm probably not the target audience for her. Well, I think I think most people understand, especially when Miss Robinson got on the internet uh Instagram and basically uh talked about how Miss Rutherford stole uh liquor uh and and was stealing from the company and that she was never dealing with her again. I think people understand now that there is a breakup that there's a breakup that they're no longer the employees know it. People in the community know that they're no longer together. And so I don't believe that there will be some type of harm to her reputation because people I believe they understand that they're no longer in partnership. Um and then also that's a big assumption that Mr. Edge is making that oh the you know he went into oh the chicken the food is >> No I understood I pressed him on that and he responded I I you are also making an assumption that people know that um Miss Rutherford is no way associated with the Edgewood address. I mean right now we have to deal in assumptions because we haven't reached the point where there is harm that uh oh it is irreparable should have done something or it is reparable meaning damages would make someone whole. Um and that's that's what I need to work through. So >> this is the thing if if it was such an immediate harm or such an an emergency then I believe Mr. Edge and his his client should have last year when we had the hearing asked the court for at least a temporary order to uh prevent Mr. Pim and M. Robinson from continuing to rehab the place. They allowed they knew that it it was being rehabbed and they understood at some point that it was going to be open. They may not have known that it was going to be open this weekend, but if it was so harmful and it's such an emergency, then why didn't they ask the court for an order back then? So, what they're trying to do now is say, "Oh, let's stop everything from happening this weekend," which absolutely makes no sense. And let's have a hearing on Tuesday because they will still make the assumption that the court is going to rule in their favor.
Let's let's assume after the the the hearing and after listening to our argument by councel and and and testimony that the court decides, well, I'm not going to grant it at this juncture. I don't find that it's irreputable harm. I don't find that you meet the the the statute. And so, the court would have just closed down this business for this weekend. You have employees that that still need to be paid. You have radio ads. You have vendors need to be paid. You have all these things going on this weekend and the court says, "Okay, well, all right.
I I I I find the favor of the defendants. I'm not going to close you guys down. Carry on." Well, that's irrepable harm at that point to the business.
>> But isn't it a pretty big gamble that Mr. Py and Ms. Robinson are making opening now on the eve of this hearing?
If the hearing doesn't go well for them, they will have spent all those things you just described.
>> Likely not to recoup it just through the business this weekend, but they think great big liftoff and in the coming months we'll make back all the money we spent on this grand opening when on May 19th or whatever day our hearing is. Um it could be screech. Nope. There's there will be no Harold's chicken and Ice Bar at 349 Edgewood. You can open up a Burger King, but not Harold's.
>> Well, let me say this, your honor. First of all, we just received I believe we received notice maybe about a week and a half ago about this hearing the 19th.
These individuals had already set in place to have a opening this weekend before we even got notice of the hearing for next week.
>> Exactly.
>> Okay.
>> You understand what I'm saying? So, they had all they had already set in motion because they have to they have to go radio. They have to do all these things.
>> They didn't wake up yesterday and say, "Let's do this." You don't just call the mayor's office and say, "Hey, can we do a ribbon cutting?"
>> Well, that's why he didn't show up, >> perhaps.
>> So, so the point is or because you know half chicken on Edgewood is not that important for him. But the point is, your honor, is that this is not something that was done, you know, behind closed doors. They had already prepared for this for this weekend. Um, my my argument is, your honor, is I still believe that the the court should deny their motion even on Tuesday. I honestly believe that we really don't need to go for it on on Tuesday because I think the court has enough information right now to make a decision on whether um the injunction should be granted or not. I think based on the last testimony of M Miss Rutherford uh I think the the argument that was made during the last hearing I think is enough that the court can make an an opinion about whether one should be granted. And I also believe Yonor that um if the jury buys their argument, they can award damages. I think it would be to her benefit if the restaurant stays open, remains open because if they're making all this money now, she can say, "Hey, you guys, if the jury believes her and and finding her favor, now she can collect from a business that's doing well and is profitable." Um and so your honor, I would argue that at this juncture at least that the court not grant this emergency u motion and allow the company to uh continue to to stay open through at least throughout the the weekend. Um I want to touch on just briefly on the I guess the fifth amended uh complaint because I am in the process of filing a motion to dismiss.
Well, I was in the process of filing a motion to dismiss the fourth. You did?
>> Did I? Okay. All right. Maybe I did.
Okay. I'm I've been trying to respond to so many.
>> Well, I guess I guess you filed one to the third and that's what the fourth responded to. I I I there have been so many iterations of things. You you sought to dismiss the third amended complaint and then I read Mr. Edg's response. Um and then also saw, oh, but you know what? We're going to amend the complaint anyway just so there's not a debate about some of these things.
>> Okay.
>> Okay. So, so, so I was I have prepared already um I just hadn't signed it, but I prepared a a motion to dismiss the fourth and then I learned that he filed um an a fifth amendment complaint, >> but we know the difference is just there's a verification. So, >> and so what I'm going to be asking I'm just giving the court a heads up. I'm going to be asking the court um to enter an order to uh limit the at least order the the plaintiff to file if it's going to file another a minute complaint then file that and that be it and then ask the leave if the planer feels as though they need to file another a minute complaint because what I'm doing is we're expending time and money chasing these these these complaints So it seems to me once the once the pliff realizes that oh I need to tweak it a little bit because I because of this argument then they they change it.
So I'm going to be asking the court to enter an order saying listen this is your last but if you need to do it again then you can ask for leave and then and then at that point um the court can either issue an order allowing it or not. And so, your honor, based on the argument and based on the fact that I don't I don't believe that um this rises to an emergency um in the sense that for for TTRO, I'm asking the court to do not before you sit down and I hear from Mr. Edge again. Um you said you've you've largely drafted your motion to dismiss >> fourth >> fourth, which is the fifth as well. It would apply to both. Um, what what do you add to that from because I read your brief to dismiss the third um and um I'm curious to know what would be new and and different in it.
>> It's it's essentially it's the same your honor, but I think there was one other argument and I can't recall exactly what I made but it's very it's very similar.
>> Okay.
>> Very similar. So, and I would argue, your honor, if the court wants to since there's only a tweak, well, well, yeah, since there was a tweak in terms of the u um not changing the facts or anything like that or allegations in the complaint, if the court wants to rule on my motion to dismiss uh the third, then I'm fine with that as well.
>> Okay. I'll let you know.
>> All right. Thank you, honor.
>> You're welcome. Um Mr. Edge, before I hear from you, um, are you custodian Smith?
>> All right. Is that what they call you?
Custodian?
>> Yeah.
>> All right.
>> And you're with Union City. Okay. Do you swear or affirm that the contents of your two affidavit seeking an order to um destroy or dispose of evidence in the custody of the Union City Police Department are true and correct to the best of your belief and knowledge? Okay, great.
Are you the one who actually disposes of it or you hire someone to do it or >> No. Um I'm [clears throat] dispos of it.
>> Does that mean you just put it like some of this stuff you can't just put in a dumpster? What do you do with it?
>> Um firearms would take you to the um the process of our chief units in Carterville. Um there's a there's a place in Carterville that u does instruction of firearms.
>> Okay. And what about all the ammunition?
>> Um we also practice with our chief uh team of >> All right.
Wow. Some of this goes back to 2015. Is this the first time you've ever cleaned out the evidence room?
>> Um, I just started back in August of so this is I think our third destruction order.
>> All right. Well, you're making progress.
You're you're getting closer to stuff that was seized this year. either.
>> All right. Well, good luck with it all.
>> You too, Mr. Edge.
>> Sir, >> couple questions for you and then you can respond um however else you want to the arguments Mr. Kenner made. Um timing. Let's put the shoe on the other foot. Why did we wait until just a few weeks ago as um Harold's Chicken and Ice Bar Edgewood was starting to reopen to say, "Gosh, judge, we need to get back in court for our preliminary injunction hearing."
It's been months and months and months.
>> We were waiting for the court to add Harold's Icebar, right? And then remember remember around the same time at our last hearing you said hey guys you all should mediate. I did we reached out to the defendants and say hey guys you know the costs are are becoming more and more let's try to resolve it. Mr. Kenner and his client said we're not mediating. We're not doing that. And we said well okay. I reach out to Monica uh Miss Monica Niles and I said, "Miss Monica Niles, can we um schedule uh schedule a new hearing?" And then I think she met with you. We got some dates. I tell her about the the dates that I'm available. I don't think Mr. Kenner responded immediately. I think it took him maybe a couple days, maybe a week or so to respond. And that's how we got here. So, your honor, we weren't just sitting on our hands. We were waiting for the necessary party. We couldn't move forward with our preliminary injunction uh hearing without Harold's Ice Bar.
>> So you moved in September, it looks like to add, if that's what this motion is, to add Harold's Icebar.
>> Yes, sir.
>> And it took a few months that for that to happen. Well, >> so that's on me. Sorry.
>> We we were waiting and then there were so many motions that were filed. Uh I mean, we were it was almost like a motion war with uh Knox Withers and Kelsey O'Neal. I'm not sure if Mr. Kieran filed as many motions, but we were responding to the motions. So, that's what took up all the time. So, again, like I said with the conversation that I had with Mr. Kenner, um we didn't know that they were um they were about to open this restaurant. We were responding to these frivolous motions.
So, THEN I I I find out on Tuesday as I'm about to get ready for bed, I I I see a flyer. I'm like, "OH MY GOSH." SO, I'M up until the morning preparing this emergency motion and then we filed it hours later. So, that's that's what happened. That's how we got here. We weren't sitting here sitting on our hands. Also, your honor, um, Mr. Ker pointed out that we've known all along that they were trying to open up this restaurant. He's right. That's why we filed this lawsuit. We're trying to stop them. We're trying to stop them from opening up this restaurant under the name Harold's Chicken and Ice Bar. And that leads to my next point, your honor.
Um, there are some things that Mr. Kenner said that I feel like were incorrect uh about some of the facts about the disagreement between uh Miss Robinson and Miss Rutherford, but I won't bore the court with that. Um, we we can address that at another time. But something in particular that I felt like is necessary um to speak about is about um how Harold's Chicken and Ice Bar on Edgewood came about. For months I had conversations with Miss Christine Diane Pierce and of course some of that is hearsay and I can't talk about the actual extent of the conversation but I have a good understanding of how this thing came to be. I'm not sure if Mr. Skinner had talked to Miss Miss uh Christian Pierce. She was going to be our star witness, but you know, for the unfortunate reason, she's no longer here. So, she can't tell her story, but she but she was up.
>> So, you get to tell her story.
>> Can't tell her story, but I can tell the story of Harold's Chicken and Ice Far.
So, there's a company Harold's Chicken Shack Incorporated. That's the parent company. And so, >> the parent [clears throat] of whom?
>> Of the franchises of Harold's Chicken.
So they are Harold's chicken shack, right? Um >> Miss Pierce's company.
>> Exactly. And so what happened is um Bobby Robinson went to Miss uh Miss Pierce and essentially um requested to to open a franchise and she told her that >> I'm going to it's in the affidavit. It's in the affidavit. Well, what's not in the affidavit is Miss Miss Pierce saying that she didn't allow Miss Miss Robinson to use a name.
>> Well, I'm going to ask I'm about to get to that with Mr. Edge. Um, so I'm going to let him keep going, but but I I >> and also I would like to apologize Mr. Kenner for interrupting earlier. It wasn't intentional outburst, but when I heard something, it was kind of shocking to the conscience and stuff, I was like, "Oh my gosh, I don't think that's correct." But nevertheless, I would like to apologize for poor corn on my part and I apologize for that. Okay. Um but what I would like to say is is that um the agreement was that they could open up a franchise in Atlanta. They had to pick a location. They had studies done.
They found >> your honor. Again, I'm going to That's not in the affidavit when he's testifying to >> What? Let me What What affidavit are we talking about?
>> No, it's not an affidavit. It's in an article that they posted.
>> It's so he but let's not go off of what's in an article >> and it was and it was attached to our amended supplemental brief before our make it >> but essentially say >> they picked the location. They told her where they were going to be.
>> She granted them the opportunity to open up at that location.
>> Okay. All right. Stop objecting. Here's my question. Um what is your understanding about Ms. Robinson's ability to open up a Harold's Chicken and Ice Bar at 347 Edgewood. If she wanted to open up tomorrow um a Harold's Chicken and Ice Bar at 347 Edgewood, does she have that ability because she was given the rights?
Apparently not in writing. There's not a franchise agreement. I talk about a franchise or but this was word of mouth handshake and and that's still okay way to do business. It just makes it tricky come litigation time. Um, what would prevent M. Robinson from opening Harold's Chicken and Ice Bar next door to this building? Your honor, I I think the thing is that they came up with the name the the commonal law trademark name Harold's Chicken and Ice Bar. Remember I say it's Harold Chicken Sack, right?
>> Bobby Robinson and Taran Rutherford.
It's the name, your honor. It's the name Harold's Chicken and Ice Bar. It was not here before them. They created that name at 349. So they took the permission from Miss Pierce.
They morphed the the the Harold's chicken registered mark to Harold's chicken and ice bar which become through trade and usage it became a mark of their own. So they used it for 349. So she owns that.
>> Okay. But now if she opens, like you said, she opens at 347, then that could potentially cause a problem. Maybe. I'm not sure. I'm just looking at the 349 of where we at right now.
>> Well, but so you seem more focused on real estate than name. I'm trying to understand cuz you don't trademark a piece of real estate. The trademark in so far as it exists relates to the name Harold's Chicken and Ice Bar and what that means and I'm wrestling with the fact that your client and Miss Robinson have other Harold Chicken and Ice Bar that the other has nothing to do with.
So, let me just finish. If Miss Robinson wanted to drive into the ground um one of hers that's somewhere else, um Ms. Rutherford couldn't say, "You need to spend more money on this one cuz it's harming the trade name. This place is ratty. People get sick here. You're hurting my business because your Heralds isn't being run well." The difference is, your honor, again, they created the name, right? It was birthed out of Edgewood. Edgewood was there for the longest. They had so much success and then it closed >> later on. I'm talking about maybe 13, 14 years.
>> But then it closed. It stopped being there.
>> But it closed for renovations. Your honor, that's the thing that they're they're muddy in the ground.
>> Cruise renovations.
The landlord, they were already planning to close the business for renovations.
It was going to be renovated. That's been the discussion from the beginning.
We're closing. Bobby Robinson, and it's shown in in our complaint, told Taran Rutherford, "We're closing because we're cash poor. We can't do anything." But they were closing anyway. the building was going to be closed regardless for renovations, right? But they had took out a loan and I think there were some loan requirements and they had to get the renovations done. Okay. So basically Bobby Robinson lied to Miss Rutherford and said we can't go on any longer. Not because the business wasn't viable and couldn't go forward. It's because she didn't want to work with Taran anymore.
She wanted to work with Cameron Pim. And that's the conspiracy. Remember Cameron Pim came to Taran Rutherford. Taran Rutherford didn't go to Cameron Pim.
Cameron Pim came to Taran Rutherford.
They had an LO out and then he revoked and then he said, "I'm not going to buy you out anymore." And then he went with Bobby Robinson and then they started working together and they essentially squeezed her out. So yes or no, M.
Robinson could open other Harold Chicken and Ice Bars without requiring M.
Rutherford to approve.
>> Y I'm going to say no because I'm going to look at the geography, right? We're on Edgewood. There's going to be confusion there. Right. Right. If I come back, as my example earlier, if I come back 10 years later, I see two Harold's ice bar right next to each other, I'm definitely confused. So, I think it's more of the proximate proximity, the the geography of the area. I think like in the case that I had earlier, but let me ask it a different way. Let's say um Ms. Robinson said, "We got to close it."
your client walked away at some point for a little while and I don't think that's in dispute. Okay. But she's out of it and then Robinson walks away from it and Pim says, "I'm not getting anything out of either of these folks.
I'm going to turn 3.49 into um a FedEx store." And then Robinson says, "You know what? Um I'm making some good money in my other places. I'm going to buy 347 Edgewood and I'm going to make that a Harold's Chicken and Ice Bar." Why couldn't she do that?
>> Well, your honor, um Bobby and Taran had a informal agreement where we're going to say where we're going to have our locations before each of them open up their locations. They had a conversation with each other. They just didn't just say, "Hey, boom, pop up one day. There's my location." They had conversations with one another so that they wouldn't um impede on each other uh footprint and >> so M Robinson wouldn't open one on Polola Road.
>> No sir, they they had an agreement.
>> Not her turf. Okay.
>> So that was their agreement. And and so and and and to your point earlier, right, everything was birthed out of Edgewood. They had their own agreement with Miss Pierce. They opened up in these other areas and they and they became successful. But the mothership, the flagship is Edgewood and we have articles to prove it. So your client could testify to this, so I'm okay you answering it. Did Ms. Rutherford need to get Miss Pierce's approval to open up Polola Road?
>> Yes. [snorts] >> Okay. And do you think that Ms. Robinson needed Miss Pierce's approval to open up wherever she opened them? to open up wherever she opened up. Yes. But not Edgewood. And it's in the affidavit.
>> Well, because Edgewood would have been where they opened first. So that's where Pierce would have said, "Here's where you're starting." But what you're telling me is each time they wanted to expand, they had to trop back to um Miss Pierce and say, "Hey, we're going to open another one. I know it's not Errol's Chicken Shack, but look, we're trading off the Herald's name. You got to start it on Edgewood. So, if I um Miss Rutherford, I'm going to open one on Polola Road or I Miss Robinson going to open one wherever one is. Um Miss Pierce had to give the green light.
>> Yes, sir. She gave the green light. And um in the affidavit, >> she's now deceased. So, where does Ms. Rutherford go if she wants to open up?
Let's say Ms. Robinson says, "I'm I'm done with it. This is this litigation is costing too much." Fine. Pim and I we're going somewhere else and we're going to do um a Harold's Chicken and Ice Bar because I have the same right you do to use a name, but I'm not doing 349. Um could Miss Rutherford say, "All right, I'm going to slide into 349 and I'm going to reopen Harold's Chicken and Ice Bar there." I think um to your hypothetical, if Miss Rutherford wanted to go into 349 and open up a new Harold Chicken Chicken and Iceberg, she would have to get one get permission from Miss Pierce.
>> Well, it can't happen anymore, can it?
>> Can't happen anymore. [clears throat] So, whoever is running the company should get permission from there and then because of the commonal law trademark, she would have to get permission from Bobby Robinson. That's what I said earlier. Neither one of them can go in and say, "I'm going to run this without the express consent of the other because the company was dissolved.
They each own a half of the trademark of the name Harold's Chicken and Nice cuz they are the authors of that name."
What what would you point to that would obligate either your client or Miss Robinson to consult with the successor and interest to Miss Pierce to open up another Harold's Chicken and Ice Bar? Cuz it sounds like it was an informal arrangement. What would Miss Pierce's successor and interest invoke to prevent either your client or Ms. Robinson from opening up another again, not Harold's Chicken Shack, but Harold's Chicken and Ice Bar. They decide to go north. Alpharetta, it needs one. So, um, Miss Robinson says, "I'm going to open one." I know you're not the lawyer for Miss Pierce's estate or whatever succeeded that. But what makes you think that they have to go back? I think because of the name Harold's Chicken, right, to use that Harold's Chicken, they would have to get permission. But the ice bar part of Harold Chicken Ice Bar belongs to Tan Rutherford and Bobby Robinson.
I mean, it belongs to them. They created it.
>> I'm not disagreeing with you. You're not I just I'm trying to understand what would the mechanism would be to open another one. Um, and um, why you think that Chicago would have to approve of it?
>> Because of the Harold's Chicken and it says it in the affidavit that Cameron Pam Bobby Robson did not get my approval to open at the open operate the franchise at the location.
>> This is Miss Pierce's affidavit.
>> Yes, sir. It's in the record.
>> Okay.
All right. Um, what else did you want to add?
Um, your honor, as as I said, the the the harm is clear, opening of this restaurant for the preliminary injunction hearing is the epitome of bad faith. It is harmful to Mr. Rutherford. It's harmful to her right to the use of the name at the Edgewood location. This has been um she has had this right since the beginning, since they started and the defendants are essentially trying to steal that away from her and damages can't resolve this harm. What can resolve this harm is that we enjoin the defendants from continuing to operate the business until Tuesday to stop advertising the opening of the the opening of the franchise until Tuesday. Um, and so that we can move forward with this preliminary injunction so that the court can hear testimony from the witnesses so that you can rule on the merits of our motion. And we're just asking, I mean, this is a narrow set of relief here, right? We're not asking for them to, you know, stop spending money to bring back the bring back the chairs, right? Like you said, that's that's monetary damages.
a trademark trade name. Money can't money can't cure that. Money can't cure loss of goodwill, reputation. Money can't cure that. So, we're asking that you prevent them from moving forward and that you give us the opportunity to move forward on Tuesday so that the court can make a ruling on the merits. What about the public's interest? That's one of the things I need to weigh. Yes, sir. If there is a lot of public excitement about getting back in that building and eating and drinking and smoking, um what how do you balance the public's interest? Well, you're going to be taking away from them a an entertainment opportunity over the next few days. Um and I don't know what you'd give them in return. Well, essentially it would be if we allow them to move forward, it will mislead patrons into believing that the defendant's business is affiliated with Miss Rutherford. Where's your You may consume more reality TV than I do. Um, >> I really don't.
>> Okay. Um, but I I don't either. Um, but I'm remembering a some more about our hearing from way back when. Um it sounds like um amongst some groups who would be excited about inclined to go back to Heralds um there's not a whole lot of confusion that there was an ugly messy throw it all down breakup and there hasn't been any making up since then. Um and we can't quantify any of this. I get it. But you're asking me to assume um that it goes poorly and so that has harm to your client and there would be harm to your client if number one um the 2.0 goes poorly um and people still associate your client with it. you may have a little more traction with number two because of your affidavit, but um it's also clear that there are a lot of people out there who know that Robinson and Rutherford do not like each other and they are not going to have a joint venture. Um so how how do you weave that in? I mean, you don't just ignore it.
>> Well, your honor, just because Mr. Kenner says that some people know, that doesn't mean everybody knows.
>> No, but that's not the stand. It doesn't need to be 100% penetration. Um, there may be five people out of a hundred who go in there and say, "Wait, this is I don't like this place. I'm so mad at Rutherford and she had it." And there may be 95 people who go in there if it's a bad experience and say, "I knew this wasn't going to be good cuz she kicked Rutherford out." Your honor, there's been tension between Miss Rutherford and Miss Robinson since the genesis of [laughter] I mean, that's how it is. And for most successful businesses, you see most successful teams, you know, there's friction, but somehow um success and achievement is birthed out of that. And and that's what happened here. But just because the world hears that >> or some of the world hear that Bobby and Taran had a disagreement, I mean, that doesn't cure the harm. that doesn't cure the harm because like I said for the people that don't watch reality TV the people that are not privy of their their relationship when they step foot at 349 and when they see the same sign they see the same menu they see the same everything the identical business they're going to be confused and then it opens the door for harm the horses will be out of the barn your honor and it's hard to be able to get them back in. And that's why we need this TTRO.
>> Is there not harm through the TTRO if this place is shuttered and people think, gosh, Rutherford can't figure out how to get it right. They opened it. It was open for a few years. It was amazing. And then it it got shut and then they reopened it for like 4 days.
What what's Rutherford's problem? She can't figure out how to run a business, right? So, it would be harm to both. It would be harmful to plain and it would be harmful to the business. But the problem is with the business that would be self-inflicted. No one told them to open this business days.
>> I got that. You told me that before. If if it ends up being that that um Herald's Ice Bar, Inc. stubs its toe because they did something they shouldn't. And we But I'm curious why you aren't um flagging well, you know, actually having it shut after the grand opening and there's media coverage. Um, you're saying that it's going to be real hard for people to disassociate your client from the 349 Edgewood address.
And if it has this false start and close, why is that not going to be a problem for your client? Your honor, because that is a harm that they created and that they create the harm if it open, stays open, and is a flop. 100% their creation. Bad news for your client. It's also a flop if I close it right now and say you can't go further. What did was it the inspectors? Was it mob money?
Why? Why? Why did it go nowhere? What's Rutherford up to this time? But your honor, essentially they would in a sense be forcing your hand to open because they rushed to open, right? Like that's what happened. They rushed to open and now it makes it difficult for you to make the decision because we have to think about the whatifs. But had they only waited until the 19th, we wouldn't have to have this conversation, we wouldn't have to deal with this hypothetical. Had they only waited, but they rushed to open, they tried to alter the status quo. Do you have any evidence? I know there's been no discovery, but I'm curious about your use of of the verb rush. Um, as Mr. Kenner pointed out, um, they didn't rehab and refurb this place um, over the last week. Of course, this hearing only got set a little while ago, not not today's hearing, next week's hearing.
Yeah, you pointed out been looking for this for a while. And so, the the notice of hearing um was April 17th um was when it was entered. So, before that date, I mean, you two may have learned about it because Miss Niles may have been asking you about your schedules. We're not always that polite. Um but at the the latest April 17th, um do you have any evidence that from April 17th to last week's soft opening, this weekend's hard opening that they're like, "Uhoh, we got to triple our like they're doing for the World Cup faster, build faster." Your honor, we sent them discovery. We would have had access to the information. They withheld the responses and the documents. It's like it's like we're being punished for them abusing the litigation and the discovery process.
>> Asked you if you had a basis to say Rush and and in your honor, we the the discovery we sent them was detailed. I mean, it was extensive. We asked all of the right all of the right questions to get what we needed and they withheld it.
Then they filed this motion to disay basically saying discovery is stayed because there is a pending preliminary injunction motion that the law does not support the law. I mean if there's a pending motion preliminary injunction motion that doesn't state discovery, right? And it said that it would cause harm because this was a part of their scheme and their plan. Your honor tried to force the court's hand and they tried to withhold documents from us so that we could prove our case.
Can I respond to some things? I know he gets the last word, but >> maybe um let me just talk about a couple other things and then if you feel like you need to um that's fine. So, Mr. Edge, one more question and then I want to talk a little bit about discovery and the motion to dismiss and then if if there's still something Mr. Kenner you want to share, you can let me know. Um, I feel like the first I heard about you not getting discovery was kind of today and I'm not remembering it may have been in in in your brief as well. Um, if if you felt like you were um not getting the traction you should be and you started to feel um uh a sense of urgency about it, um why didn't you reach out, your honor? So, Discovery was sent in March, right? 30 days. It's April.
>> Y >> All of this happened around the same time. We had a call with with Mr. Kenner.
>> You mentioned you call it sort of a 6.4 call.
>> Yeah. Yeah. But we we discussed discovery and we were saying that we expected discovery. Then there was this conversation about well is discovery state or not? Uh judge never rule on the motion to dismiss that was filed by uh Arnold Golden Gregory. And so is Discovery State. it was filed before the answer. Well, then there was the motion to add. Well, did that moot the moot the motion? And then then Mr. Kenner was like, well, I think Discovery of State because there was the motion for preliminary injunction. And so we were talking about it and trying to like hash it out. And so, but we our our position was that discovery was not stayed. And so, we told him that we expected to get the responses. And all of that fell around the same time.
>> Okay.
Um the motion to dismiss um if it's granted would be in part only. There are some counts that I believe very clearly survive the motion to dismiss which means discovery needs to start and it needs to start with some speed. Um and so my I said it was last question. Now it's really the last question for right now. Mr. edge. Sometimes you give good answers and it leads to more questions.
Um, do you want some discovery before we have next week's hearing? Do you think that you would have better traction with that hearing if you got >> Certainly, your honor. Certainly.
>> Um, I guess you should wait to answer that till I end up ultimately ruling on your emergency motion.
>> Yes, sir. Um, and you'll have to figure out how you want to strike the balance of if the emergency motion is denied.
Um, then do you want to hurry up and have the preliminary injunction or do you hearing >> [clears throat] >> um or do you want to I probably would require um some of the discovery to be produced in the less than 30-day window.
Um, I probably invite you to send me as well the discovery request so that I could say, "Hey, request for production 1, nine, and 14, you got 10 days for those." And you could push back. Like, that's insane, Judge. Um, but there's some things in particular like access to records and whatnot. I appreciate that's one of your counts. Um, but, um, there are certain things that one should be super easy to produce and two are undoubtedly just burning a hole in your litigation book. If I could just get these things, um it would be a whole lot easier um to um support the claims that I advance in my complaint. And I'm not pointing fingers at either of you. It has been a fluid docket. Um there's been churn because there have been a bunch of versions of the complaint. Um there was some confusion because a lawyer, a firm withdraws, we add parties, etc. Um but it is clear to me that um uh what won't be going away is the core dispute of um did Ms. Rutherford abandoned or was her stake taken? That's not going away. That has to be litigated. And so discovery needs to start flowing. Um some of the other things, they're more sophisticated than that. And so I need to think about them more. And obviously um you all will want to get some discovery to to push in that direction. Um and so what I want flowing out of today in part is um uh some thoughts from you all about how to um turbocharge discovery. Not in the sense that you haven't asked for it. Um but I I'm not taking sides on the was discovery stayed or not. I am acknowledging [clears throat] that the docket is a peculiar one because of the eb and flow of things and and again multiple versions of the complaint followed by multiple motions to dismiss. Um but it's time because there isn't a reason to dismiss I think that's been identified all the counts maybe some maybe none um but because some will clearly survive discovery really needs to get going. Yeah, your honor. And I mean, that's a tough question to answer, right? Do we allow them to remain open for >> Well, I'm not asking you to um decide.
I'll decide that part.
>> You're asking me?
>> No, no, no, no. I I I'm going to rule on your motion um uh about the um emergency equitable relief. Um, and you may want to wait to get that ruling before you say, "I don't want to move the preliminary injunction hearing." Or regardless of that, judge, um, I do want to move it because if you can ensure that I get some of this discovery in the next 15, 20 days, we could have a much more robust preliminary injunction hearing because it would move beyond the, well, my remembrance is this or that. And you'd be saying, well, but look at these records here. It may be that the records go more to the damages that would flow if a factfinder concluded that it was a theft of a stake in the business as opposed to an abandonment of it.
>> Um I I don't I'm not managing how you do all that. Um but I do want to we've been stuck for a while and I want to unstick the case because it isn't going to go away through a motion to dismiss. It may become a little more streamlined, but that core piece um is going to keep moving forward, >> right? Um, and I appreciate time is of the essence if in the end my ruling is the restaurant stays open. Um, because that only increases the risk if the restaurant is not a critical success to the kinds of damages you describe um that would flow towards Miss Rutherford.
>> Yes, sir. Um, so I guess whenever you rule on the motion, how soon should we give you a response about if we want to keep May 19th or if we want to push it back to uh >> Well, the tricky part is May 19th is 4 days from now. So um it would need to be before then. That's all I can tell you is that um I'll figure out I I need to do a little reading. Um and then um what will happen is I'll get Ms. Niles to send you all an email that says denied or granted the emergency TTRO. We'll get something in writing um ultimately in the docket. But there's some important planning that the defendants would need to do. If it's granted, um they have to tap the brakes. If it's denied, um then they don't tap the brakes. And maybe it's partially granted and you stop advertising on social media, but it's open and you're going to do what you do.
Either way, um I I'm going to let you digest it. Um but it would be at some point before we'd start. Um because I don't want to make you all come down here on the 19th to only tell me, "Yep, we'd like to have 20 days of discovery."
You could do that by email and then you don't have to be here. Um but you have as much time as you want. You could wait and say, "I need more time to think about it." and then just let Mr. Kenner know that the 19th isn't a hearing. It's a let's could we just talk about the mechanics of how discovery would flow?
You have a big chunk of my time on the 19th. And so if that's what you want to pivot to because you want to defer the preliminary injunction hearing, then it could be a a a discussion about, yep, those discovery requests are ones where I'm going to say you got 10 days to do it. and you'd be right here to say, "Let me tell you why that couldn't work cuz the accountant is in California or I've got to leave or whatever." And I say, "Okay, you have 11 days."
>> Well, in a minute. So, am I I'm not trying to be vague or confusing, but because I intend to um make discovery start going. Um, I I just wonder if that would um be the kind of thing you'd want some before you do the rest of the preliminary injunction here.
>> Understand, your honor. Um, >> you can think about You don't need to commit now. Yes, sir.
>> Be thinking about it.
>> Yes, sir.
>> All right, Mr. Kenner.
>> Yes, your honor. And I know we've been at it for a while now, but um >> I would like Discovery to start as well.
We set um the plank of some Discovery >> two-way street. If if discovery is going to be flowing from your clients and you've got requests, we've had the same dialogue. If it's going to be on an expedited basis, you need to identify which things um that you would be valuable to get if if the decision is to defer the preliminary injunction hearing. And I think that's a Mr. Edge decision, not yours. Um if he says, you know what, I want some time to do that.
If he says, "I want 60 days," then I don't need to get in the middle of discovery because whatever's been propounded, you got 30 days to respond.
Um, but if he says, you know, could we do it in 20 days cuz, you know, you you didn't close the business down. They're not allowed to advertise for it, but but the store is open. So, I don't want to push it too far out um because of the risks that he's described. That's why you're going to need to think about it.
You're going to need to talk with your client um about what makes the most sense. But um yes, discovery in both directions. But >> how extensive will discover be? Because will we be allowed to take depositions and things like >> that's what we need to talk about. And it may be that you say I got 14 depositions I I want to do and I say okay which is the most important one if it's going to be before again this is all if it's going to be before the hearing. If it's not going to be before the hearing then I'll see you on the 19th and we'll have the hearing. Um, but if if we're moving the hearing out some, then I think it would behoove us to have a discussion again, unless that's being moved so far out that you could do most of discovery. I had thought about depositions because that's not always just 30 days because people's schedules are complicated. We have successful business women here. They don't just like I'm free every day. They have things they're doing. Um so um we might need to um strategize on that one where um some of your desired depositions would be put in the category of that can wait and you're entitled to it.
Discovery lasts 6 months. Um but these are the ones that we put up at the front and and I might need to lean on a few people to say let's make this happen.
Right. And the other thing, your honor, as it relates to the inspection uh reports, things of that nature, business records, they have access to it because I believe that is Miss Ruther's accountant, she still uses that accountant to to this day for her own business as well as my client as well.
So, my client doesn't have access to these records because the accountant has access to the same records that they're trying to get.
>> Well, your honor, I've reached out to >> I'm assuming that's not accurate or we're going to keep seeing that. Your honor, I've sent requests to Mr. Betts named Steven Betts. We sent him third party requests when after Miss Bobby and >> what does he say? Um, you sent request.
What is his response?
>> Anything from him? No response.
>> All right. Well, now is the time to start invoking me. And so if we need to send an order to Mr. Betts so he comes to court with the records on a thumb drive, I am happy to do that. Um, it it you shouldn't have to knock on that door more than a couple times. So, you're both correct. It sounds like Mr. Betts has them, but he's not coughing them up.
Now, if he comes in here and says, "I didn't give them because Robinson said I better not or I'm in trouble." That's what I think.
>> Okay. But but he needs to say that. And if he says that, then M. Robinson has some things to explain. But right now, he just isn't getting back to you. And he needs to um and it maybe that's part of discovery, too, where he needs to explain why'd you ignore this stuff.
>> The accountant is still her accountant to this day. So why why would why would he allow Mr. Robinson to tell him don't get with the records that makes >> maybe she pays a higher hourly rate. I don't know. I'm not saying she did. Um Mr. Edge did, but um it's peculiar that he wouldn't hand the stuff over. Um and who knows what he was >> just want to get involved. I don't >> could be he's he doesn't have that freedom. The only thing the other thing I wanted to correct your honor is that council uh accused us of not wanting to mediate the issue was that I asked council well can you give us an offer to start the conversation give us an offer what are you asking for and he said well we want to do discovery first and I said well we don't really need to do discovery give us offer because that'll that will let me my client know whether they want to you know settle this case for that number or Well, I think mediation will be much more productive after some discovery so that um Ms. Rutherford and her lawyer could see what's been spent, what might be earned.
I mean, you start to get some data points um uh as to um what what the perceived value of this resource is, etc. So I I understand why um someone wouldn't want I mean you're sort of um uh betting against yourself like well I have no visibility right now because the accountant for whatever reason sharing stuff um into what's going on and so I'm going to bet blindly and I might leave a zero off where I could be going.
>> I just want to correct that.
>> We explained that to Mr. I just want to correct the the assertion that I said, well, we're not mediating at all cuz that's not how I >> You were just ready to go in a different posture than Mr. Edge was ready to go. I see both views. So, we don't need to have a back and forth about it. Okay. We don't need to bottom line is mediation didn't happen. Um, another reason to get discovery flowing because um I think that'll make it more likely that um it could happen.
>> Matt Matt asked. We had a so we had the we had emails about the mediation and then during our call we were talking about discovery. Mr. Ker said my clients are not your clients looking for money.
My clients aren't paying you anything.
He said that. He said that.
>> Okay. All right. Um I I I wasn't there and um you guys are doing a great job of preparing me for the family division which is where I'm heading regrettably and I am told that this is a lot of how it flows which is too bad. Um >> the last thing and I promise I'll be quiet the motion to dismiss like how because my whole position my position is without an order on motion to dismiss you know at least partially some of the counts. I think if we start discovery before we get the motion ordered on that, then we're just expending time unnecessarily trying to discover certain certain, you know, things that or certain evidence that we really don't need because that count may have been dismissed or or what. So, well, I I I this is not the formal order, but just to give you a flavor, um, counts one through five are alive and well. They are pled against Ms. Robinson and Miss Robinson only. And that's fine. That doesn't make them dismissible. If they're not, if count one isn't against E3 or Mr. Py because you've got all these as your clients, then they those two don't need to worry about it so much. But um you your motion says you need to dismiss some of these counts against these other people, but they're not dismissible against them.
They it is counts one through five are all against M. Robinson only. So um >> well I just the the only reason I said that in my in my in my motion is because I want to make sure that the court says okay you in other words so the plaintiff then come back and say oh well we also meant we inferred you know e you know E23 as well as Mr. appeal in one through fives.
>> Okay. And that may have been part of why um the fourth amendment amended complaint came around where it was I don't remember if the third one is a is was as explicit. But the fourth amended complaint it says count one Robinson only. I mean it's right there in technicolor so there's not confusion.
>> It well we've always designated what parties the the claims were being started against. So that didn't change >> because I we we couldn't have a claim for inspection of corporate records against >> Cameron P. He wasn't a party of the of the original agreement.
Um anyway, um I'll work through um the other parts of the motion to dismiss, but that was just an example that for example 1 through five um they're alive and well and and discovery that is focused on um the nature of the arrangements and negotiations and communications between Miss Robinson and E32 and PIM. That's all squarely within um claims that Miss Rutherford has just against Miss Robinson. Say nothing of conspiracy and py and E32. I get the sense that some of those will survive as well, but they'd be something that M.
Rutherford would be entitled to get just counts one through five. Um so I don't know. I I haven't looked at um any of the discovery requests, but um so much of it drives through counts one through five. I don't know that there'd be too many requests that Mr. Edge would have where you'd say that only relates to count 19 and this is the funky one and it's not clear third party doctrine. Um, so I don't know that there'd be too much wheel spinning on your part responding to discovery. But again, if we end up next week talking more about what's a way to get some discovery done real quickly, that's where you could say, well, really help me know if count 14 survives cuz if it doesn't, then 12 of his discovery requests I don't need to spend time on. I don't mean to do that to either side to make you produce discovery for something that's not going anywhere.
>> That was my own.
>> Okay, fair concern.
Mr. Edge, anything else on behalf of your client?
>> No, sir. How you doing, Miss Rutherford?
>> What are you going to do this weekend?
>> Breathe.
>> Breathe. Do a lot of that.
All right. Um, [clears throat] I think that's it. Um, M. Niles will get an email out to you all before the day is done, letting you know how this weekend's going to go. Um and um then um Mr. Edge, you can be thinking about what that means in terms of do we still meet on Tuesday? We could be a Zoom communication if it's just going to be how do we structure discovery or um do we use Tuesday as originally intended?
Does that work? Mr. Kenner, anything else?
>> Right.
>> All right. We have had um Ms. Kirkland dutifully taken all this down.
Um, you all will make sure she's compensated.
>> Yes.
>> Yes, sir.
>> Okay.
>> Yeah, we're going to share.
>> You're going to share in that? Okay.
Miss Kirkland, do you need anything else from us?
>> No, I don't, your honor. Thank you so much. I will have a Galla reach out to council.
>> Okay, sounds good. Um, I think that's it then. Appreciate everyone's time.
Thank you, honor.
>> Thank you, honor.
>> Thank you. Have a good weekend.
>> You, too. Well, >> do you need this to be on the record?
>> I'm sorry.
>> Are we on the record?
>> Yes, we are. I did have attorney fees. I didn't go into that.
>> Okay. You did. You preserve it.
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