Free Motion to Consolidate Cases - District Court of Colorado - Colorado

Case 1:03-cv-00607-JLK

Document 132-3

Filed 07/14/2005

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 05-cv-1295 EWN-PAC DOMINION VIDEO SATELLITE, INC., Plaintiff, v. ECHOSTAR SATELLITE L.L.C., Defendant. ______________________________________________________________________________ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION IN AID OF ARBITRATION AND REQUEST FOR EMERGENCY HEARING ______________________________________________________________________________ Pursuant to Fed. R. Civ. P. 65, Plaintiff Dominion Video Satellite, Inc. ("Dominion"), respectfully asks that the Court issue a temporary restraining order and preliminary injunction to preserve the status quo while Dominion brings an arbitration to remedy Defendant EchoStar Satellite L.L.C.'s ("EchoStar's") breach of the parties' Agreement. As set forth in the supporting brief, because EchoStar is wrongfully threatening to terminate the parties' Agreement, which forms the basis of Dominion's enterprise, without an injunction in aid of arbitration, EchoStar's wrongful actions will put Dominion out of business while the arbitration proceeds, and deprive both the arbitration panel and this Court of the ability to provide meaningful relief. EchoStar has sent Dominion a termination notice under which EchoStar has taken the position that it may terminate the Agreement as early as this Friday, August 15, 2005. Because EchoStar would not agree to extend the termination date and its

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Case 1:03-cv-00607-JLK

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performance of the Agreement past this Friday, Dominion respectfully requests that the Court hold an emergency hearing before close of business that day to preserve Dominion's existence pending an arbitration as required by the parties' contract. This grave threat to Dominion's existence substantially outweighs any injury that might be suffered by EchoStar if preliminary injunctive relief is granted. The public interest will not be affected adversely through an order that maintains the status quo while the parties work through the agreed dispute resolution procedure. Finally, Dominion has raised substantial questions going to the merits of the dispute that justify preliminary injunctive relief while the issue is resolved in arbitration. WHEREFORE, Dominion respectfully asks that the Court grant this Motion. supporting brief and proposed injunctive order are attached. DATED: July 12, 2005 Respectfully submitted, s/ Thomas D. Leland, Esq. Thomas D. Leland, Esq. Hale Friesen, LLP 1430 Wynkoop Street, Suite 300 Denver, Colorado 80202 Telephone: (720) 904-6000 Fax: (720) 904-6006 Attorney for Plaintiff Dominion Video Satellite, Inc. and A

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Case 1:03-cv-00607-JLK

Document 132-3

Filed 07/14/2005

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Mark D. Colley, Esq. Cameron W. Fogle, Esq. Holland & Knight LLP 2099 Pennsylvania Avenue, N.W., Ste. 100 Washington, D.C. 20006 Telephone: (202) 955-3000 Fax: (202) 955-5564 Email: [email protected] Attorneys for Plaintiff Dominion Video Satellite, Inc.

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Case 1:03-cv-00607-JLK

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Filed 07/14/2005

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CERTIFICATE OF CONFERENCE Pursuant to D.C. Colo. LCivR 7.1A., the undersigned has conferred with opposing counsel in an attempt to resolve the matters that are the subject of this dispute before filing this Motion for a Temporary Restraining Order and Preliminary Injunction in Aid of Arbitration and Request for Emergency Hearing. Specifically, on July 6, 2005, counsel for Dominion met with David Moskowitz, General Counsel for Defendant. Counsel discussed the matters that are the subject of this motion, and specifically sought EchoStar's agreement that, pending arbitration, it would continue performance under the Agreement. Further, in an e-mail exchange dated July 12, 2005, Dominion's counsel requested that EchoStar stay its termination of the Agreement and its threat to end Dominion's broadcasts except upon a further written notice and a 90 day opportunity to cure, that EchoStar continue performance under the Agreement pending completion of arbitration proceedings, and that EchoStar stop taking actions that interfere with Dominion's programming by blocking current electronic programming guide information on the Sky Angel channels. EchoStar's counsel would not agree to these requests, and thus this motion became necessary. DATED: July 12, 2005 Respectfully submitted, s/ Thomas D. Leland, Esq. Thomas D. Leland, Esq. Hale Friesen, LLP 1430 Wynkoop Street, Suite 300 Denver, Colorado 80202 Telephone: (720) 904-6000 Fax: (720) 904-6006

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Case 1:03-cv-00607-JLK

Document 132-3

Filed 07/14/2005

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and Mark D. Colley, Esq. Cameron W. Fogle, Esq. Holland & Knight LLP 2099 Pennsylvania Avenue, N.W., Ste. 100 Washington, D.C. 20006 Telephone: (202) 955-3000 Fax: (202) 955-5564 Email: [email protected] Attorneys for Plaintiff Dominion Video Satellite, Inc.

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Case 1:03-cv-00607-JLK

Document 132-3

Filed 07/14/2005

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CERTIFICATE OF SERVICE I certify that on July12, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: T. Wade Welch: [email protected] Ross W. Wooten: [email protected] And I hereby certify that I have mailed or served the foregoing to the following nonCM/ECF participants in the manner indicated by the non-participant's name: David K. Moskowitz, Esq. General Counsel and Senior Vice President EchoStar Satellite LLC 9601 S. Meridian Blvd. Englewood, Colorado 80112 Todd A. Jansen Cockrell, Quinn 7 Creighton 1700 Broadway, Suite 1516 Denver, Colorado 80290

s/Thomas D. Leland Thomas D. Leland Attorney for Plaintiff Dominion Video Satellite, Inc. HALE FRIESEN LLP 1430 Wynkoop Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6026 Fax: (720) 904-6006 Email: [email protected]

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