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List Industries, Inc. v. Larry List

United States District Court, D. Nevada

August 30, 2017

LIST INDUSTRIES, INC., Plaintiffs,
v.
LARRY LIST, Defendants.

          ORDER

         Presently before the court is plaintiff List Industries Inc.’s ex parte motion for a temporary restraining order (TRO) (ECF No. 3) and ex parte motion for a preliminary injunction (ECF No. 4). Plaintiff requests this court to enjoin defendant Lawrence (Larry) List from “contacting, intimidating or otherwise interfering in any way with any employee, agent, representative, vendor, distributor, customer and potential vendor, distributor or customer of List Industries, and any of their subsidiaries, in any form or fashion, including, but not limited to, in person, by letter, e-mail, text, any social media and by telephone and/or fax, for any reason, pending the outcome of this action.” (ECF No. 3 at 1).

         I. Facts

         On August 11, 2017, plaintiff filed its complaint against defendant. (ECF No. 1).

         On August 15, 2017 plaintiff filed the instant motions for a TRO and motion for a preliminary injunction. (ECF Nos. 3, 4). On the same day, plaintiff filed affidavits in support of the motions. (ECF Nos. 5, 6).

         On August 23, 2017, plaintiff filed an affidavit of service indicating that plaintiff personally served defendant Lawrence (Larry) List the instant motions for a TRO and preliminary injunction on August 16, 2017. (ECF No. 9). Although defendant has notice of both motions, he has not been heard on them.

         The motions for a temporary restraining order and preliminary injunction (ECF Nos. 3, 4) allege the following facts. Defendant Larry List is one of the grandsons of the founder of List Industries and, at one point many years ago, owned shares in List Industries, but his interest was repurchased in full. (ECF No. 3 at 2). “Sadly, [Larry’s brother] and the representatives of List Industries are informed and believe that Larry has succumbed to a disease, most likely alcoholism, and become increasingly hostile, obscene and threatening toward [his brother JR, the president of List Industries], other representatives of List Industries and the vendors, distributors and customers of the Company. . . . Larry clearly seeks to defame his brother and those who manage and work for List Industries . . . .” Id. “List Industries has endured attacks from Larry since 2012, but even proceedings in a lower court have not stopped his behavior.” Id. at 3. Larry has left “threatening and obscene messages on List Industries’ counsel’s voicemail system, filled with threats, personal insults, and profanity. Id. “Larry’s messages became so vile and personal that eventually Florida counsel became concerned for the safety of his staff and implemented security precautions at this office.” Id. “After a brief respite, by 2015, Larry’s threats, via e-mail and voice mail, were arriving on the Company’s website and on its employees’ voice mails.” Id. List Industries, on behalf of JR List (Larry’s brother) personally, obtained a temporary protective order (TPO) from the Henderson Justice Court in Nevada, and notified the FBI. Id. “Despite the TPO, Larry’s harassing phone calls and messages continued, specifically accusing List Industries of selling defective lockers and performing substandard installations. . . . Larry went so far as leaving a threatening, profanity laced message with J R Lists’s golf club and another obscene and insulting message with a female representative of a Company client.” Id.

         The motions continue, alleging further threatening and defaming communications from defendant Larry List to, among other people, List Industries employees, customers, business partners, vendors, and distributors. Id. at 3–9. The motions allege that he even sent a false lead to a detective at Penn State University attempting to tie List Industries’ product to the Jerry Sandusky scandal. Id. Many of these communications allegedly contained threatening and profane language. Id.

         One of the allegations is that on or about December 21, 2016, “Larry sent an e-mail to a [List Industries] customer which alleged it could not legally sell List Industry products and threatened to hold that customer ‘responsible’ for doing so.” Id. at 4. Another specific allegation is that on May 25, 2017, “Larry sent an e-mail to fifteen (15) of List Industries’ business partners, demanding that Colin List ‘resign’ and alleging that Colin List is a ‘sexual pervert’, Colin ‘verbally sexually assaulted’ him, along with another List employee, J R List physically assaulted him, and he had been ‘violated, harassed and ripped off’ by List Industries.” Id. at 5.

         Plaintiff also cited various hyperlinks to audio files on the internet that plaintiff purports represent true and correct copies of voice mail messages from Larry List. (See, e.g., ECF No. 5 at 2). But plaintiff has not provided the court with a physical copy of these files, such as on a CD or other electronic information storage device. Therefore, they are not part of the record: “Neither a hyperlink nor any site to which it refers will be considered part of the official record. Hyperlinks are simply convenient mechanisms for accessing material cited in a filed document. If a party wishes to make any hyperlinked material part of the record, the party must attach the material as an exhibit.” LR IA 7-3(c)(2). Regardless, because this court denies the instant motions on other grounds, this court can assume for the purposes of these motions that the audio records contain threatening, profane, defamatory messages from Larry List as plaintiff alleges.

         II. Legal Standard

         a. The First Amendment: Prior Restraints, Overbreadth, and Vagueness

         “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. While it is true that no one “would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot,” Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 180 (1968) (quoting Cantwell v. Connecticut, 310 U.S. 296, 308 (1940))-or, perhaps as the plaintiff alleges here, the tortuous interference with contracts-it is equally true that “[a] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand,” Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 559 (1975). Indeed, the United States Supreme Court has declared that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976); see also Tory v. Cochran, 544 U.S. 734 (2005).

         “The term prior restraint is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communication are to occur.” Alexander v. United States, 509 U.S. 544, 550 (1993) (emphasis in original) (internal quotation marks omitted) (citation omitted). “Temporary restraining orders and permanent injunctions-i.e., court orders that actually forbid speech activities-are classic examples of prior restraints.” Id. A prior restraint bears a “heavy presumption against its constitutional validity.” See New York Times v. United States, 403 U.S. 713, 714 (1971) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)).

         The problem of prior restraints is multiplied when a court issues one before a proper trial on the merits. “[A] preliminary injunction poses a danger that permanent injunctive relief does not: that potentially protected speech will be enjoined prior to an adjudication on the merits of the speaker’s or publisher’s First Amendment claims.” DVD Copy Control Ass’n, Inc. v. Bunner, 75 P.3d 1, 21 (Cal. 2003), as modified (Oct. 15, 2003) (Moreno, J., concurring) (citing Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 390 (1973) (noting that an order did not “endanger arguably protected speech” because, in part, “no interim relief was granted, the order will not have gone into effect before our final determination that the actions of the Pittsburgh Press were unprotected”)).

         Another problem with preliminary injunctions and temporary restraining orders that restrict speech is that a person who violates a court order risks punishment even if the order itself is later deemed unconstitutional: “[A] court order must be obeyed until it is set aside, and . . . persons subject to the order who disobey it may not defend against the ensuring charge of criminal contempt on the ground that the order was erroneous or even unconstitutional.” Stephen Barnett, The Puzzle of Prior Restraint, 29 Stan. L. Rev. 539, 552 (1977) (citing United States v. Dickinson, 465 F.2d 496 (5th Cir. 1972)).

         Indeed, in Carroll v. President and Comm’rs of Princess Anne, the United States Supreme Court declared unconstitutional a 10-day restraining order “issued ex parte, without formal or informal notice to the petitioners or any effort to advise them of the proceeding.” 393 U.S. at 181. Likewise, in Quantity of Copies of Books v. State of Kansas, the supreme court held unconstitutional the seizure of allegedly profane books because the court did not first afford the seller of the books an adversary hearing. 378 U.S. 205, 211 (1964).

         Further, any restriction on speech must be narrowly tailored to achieve its lawful purpose; it must burden no more speech than necessary to accomplish its desired goals. Madsen v. Women’s Health Center, 512 U.S. 753, 765 (1994). That means an order restricting speech must be ‚Äúcouched in the narrowest terms that will accomplish the pin-pointed objective permitted ...


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