1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 ZAYO GROUP, LLC, Case No. 5:25-cv-03483-BLF

8 Plaintiff,

ORDER GRANTING EX PARTE

9 v. MOTION FOR TEMPORARY

RESTRAINING ORDER; AND

10 CVIN, LLC, SETTING SHOW CAUSE HEARING 11 Defendant. [Re: Dkt. No. 7]

12 13 Plaintiff Zayo Group, LLC seeks to enjoin Defendant CVIN, LLC d/b/a Vast Networks 14 from commencing a fiber optic cable replacement project scheduled to begin on April 23, 2025. 15 Before the Court is Plaintiff’s Ex Parte Motion for Temporary Restraining Order and Order to 16 Show Cause Why a Preliminary Injunction Should Not Issue. Dkt. No. 7. 17 For the following reasons, the Court GRANTS the motion for temporary restraining order 18 and ORDERS Defendant to show cause why a preliminary injunction restraining Defendant from 19 initiating the project for 75 days should not issue. The Court SETS a show cause hearing for 9:00 20 a.m. on April 24, 2025 at Courtroom 1 of the Robert F. Peckham Federal Building & United States 21 Courthouse, located at 280 South 1st Street, San Jose, CA 95113. 22 I. BACKGROUND 23 This case concerns a Dark Fiber Indefeasible Right of Use (“IRU”) Agreement between 24 Plaintiff and Defendant. Plaintiff is a provider of communication infrastructure services that uses 25 fiber optic cable to provide its services. Dkt. No. 7-2, Declaration of Aaron Werley in Support of 26 Plaintiff’s Ex Parte Motion for Temporary Restraining Order and Order to Show Cause (“Werley 27 Decl.”) ¶ 4. Fiber optic cable transmits data as light and is used by service providers like Plaintiff 1 The contract at issue in this lawsuit dates to April 5, 2016, when a company called Integra 2 Telecom Holdings, Inc. (“Integra”) entered into a Master Dark Fiber IRU Agreement with 3 Defendant, which enabled Integra to lease “dark fiber”—meaning excess fiber optic cable 4 capacity—from Defendant. Id. ¶¶ 6, 9. Later that month, Integra and Defendant entered into a 5 Dark Fiber Service Order (“Service Order 1”), thereby leasing two dark fiber routes in California 6 to Integra. Id. ¶¶ 11–12. Integra was later acquired by Plaintiff Zayo Group, LLC, id. ¶ 10, and 7 in December 2017, Plaintiff and Defendant entered into a second Dark Fiber Service Order 8 (“Service Order 2”) that leased a second dark fiber route running from San Jose to Los Angeles, 9 id. ¶¶ 13–14. Since then, Plaintiff has used the dark fiber optic cable leased from Defendant via 10 the Agreement and the Service Orders to provide Internet access, telecommunications, and other 11 fiber optic-related services to its customers, which include “some of the largest Silicon Valley- 12 based tech companies in the world, as well as network carriers (both fixed and mobile), Cloud/AI 13 providers, educational institutions, governmental agencies, and so forth throughout California and 14 neighboring states.” Id. ¶ 16. 15 On March 13, 2025, Defendant sent a letter to Plaintiff informing Plaintiff that Defendant 16 planned to replace fiber optic cable along Plaintiff’s leased routes, and that the replacement project 17 could result in data outages “ranging from several days to several weeks or more over the course 18 of the next 3–6 months.” Id. ¶¶ 17–19. Plaintiff had not received other notice of the project, and 19 its approval was not sought or received. Dkt. No. 7-3, Declaration of Nadine Heinen in Support of 20 Plaintiff’s Ex Parte Motion for Temporary Restraining Order and Order to Show Cause (“Heinen 21 Decl.”) ¶ 5. Various of Plaintiff’s executives had a call with various of Defendant’s executives on 22 April 14, 2025, at which point Plaintiff’s executives learned that Defendant planned to initiate the 23 fiber replacement project on April 23, 2025. Id. ¶¶ 6–7. During a second call on April 21, 2025, 24 Plaintiff’s executives requested a sixty-day extension of the start date for the project so that 25 Plaintiff could migrate its customers to a replacement network. Id. ¶ 8. Defendant did not accede 26 to the request, id., so Plaintiff filed the present suit and motion for temporary restraining order. 27 II. LEGAL STANDARD 1 issuing a preliminary injunction. See Washington v. Trump, 847 F.3d 1151, 1159 n.3 (9th Cir. 2 2017) (“[T]he legal standards applicable to TROs and preliminary injunctions are substantially 3 identical.” (internal quotation marks and citation omitted)). An injunction is a matter of equitable 4 discretion and is “an extraordinary remedy that may only be awarded upon a clear showing that 5 the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council, Inc., 555 6 U.S. 7, 22 (2008). And “a TRO ‘should be restricted to . . . preserving the status quo and 7 preventing irreparable harm just so long as is necessary to hold a [preliminary injunction] hearing 8 and no longer.’” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018) 9 (quoting Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 10 70, 415 U.S. 423, 439 (1974)). 11 A plaintiff seeking preliminary injunctive relief must establish “[1] that he is likely to 12 succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary 13 relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public 14 interest.” Winter, 555 U.S. at 20. “[I]f a plaintiff can only show that there are serious questions 15 going to the merits—a lesser showing than likelihood of success on the merits—then a preliminary 16 injunction may still issue if the balance of hardships tips sharply in the plaintiff’s favor, and the 17 other two Winter factors are satisfied.” Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 18 (9th Cir. 2014) (internal quotation marks and citations omitted). 19 III. DISCUSSION 20 A. Analysis 21 Plaintiff filed the present lawsuit and motion for temporary restraining order on April 21, 22 2025, serving Defendant on that same date. Dkt. Nos. 1, 7, 7-5. Defendant has not filed an 23 opposition to the motion. 24 The Court finds that Plaintiff has demonstrated a likelihood of success on the merits or at 25 least serious questions going to the merits on its breach of contract claim. “To prevail on a cause 26 of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s 27 performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the 1 “[I]f a party to a contract expressly or by implication repudiates the contract before the time for his 2 or her performance has arrived, an anticipatory breach is said to have occurred.” Hewlett-Packard 3 Co. v. Oracle Corp., 65 Cal. App. 5th 506, 550 (2021) (quoting Romano v. Rockwell Internat., 4 Inc., 14 Cal.4th 479, 489 (1996)). Here, Plaintiff has submitted evidence supporting the existence 5 of the contract and plaintiff’s performance under it. Dkt. No. 1-1 (“Dark Fiber IRU Agreement” 6 or “Agreement”); Dkt. No. 1-2 (“Service Order 1”); Dkt. No. 1-3 (“Service Order 2”); Werley 7 Decl. ¶ 15. Plaintiff has also shown a likelihood of success in establishing that cutting the fiber 8 optic lines would breach the Agreement and that it will be damaged by a breach by Defendant, 9 since Plaintiff’s declarant attests that “[a]ll of Zayo’s customers that rely on the fiber encompassed 10 by the two Service Orders would be affected by the data outages caused by the fiber 11 replacement/repair effort” and those outages would ham those customers and put Zayo in breach 12 of its agreements with them. Werley Decl. ¶¶ 22–24. The Court finds that Plaintiff has shown a 13 likelihood of establishing a breach of the relevant contract by pointing to various contract terms 14 granting Plaintiff “the exclusive and indefeasible right to use” the fiber optic cables covered by the 15 service orders, see Agreement § 3.1, and entitling Plaintiff to “pre-approve[]” any changes to the 16 fiber optic routes, Service Order 2 at 1. Moreover, Plaintiff points out that other contract 17 provisions require Defendant to give Plaintiff sixty days’ notice of “relocation” of relevant fiber 18 optic cables, Agreement § 11.2, and to enter into a separate agreement with Plaintiff prior to 19 undertaking qualifying “Construction Services,” id. § 9. 20 The Court also finds that Plaintiff has shown that it is likely to suffer irreparable harm in 21 the absence of preliminary relief. “Evidence of threatened loss of prospective customers or 22 goodwill certainly supports a finding of the possibility of irreparable harm,” Stuhlbarg Int’l Sales 23 Co. v. John D. Brush & Co., 240 F.3d 832, 841 (9th Cir. 2001) (citation omitted), and the Court 24 credits Plaintiff’s assertion that Plaintiff’s reputation may be seriously and irreparably damaged if 25 Plaintiff fails to provide the network connectivity and communications services that it has 26 contracted to provide to its customers, which may in turn suffer economic damages “in the tens or 27 hundreds of millions of dollars” due to Defendant’s planned data outages, Werley Decl. ¶¶ 16, 22– 1 insofar as it requires Defendant to provide 24/7 maintenance services. Agreement at 39. 2 The balance of equities also tips in Plaintiff’s favor. The requested temporary restraining 3 order will merely prevent Defendant from initiating a cable replacement project for a few days, 4 thus maintaining the status quo in terms of maintenance requirements for a brief period. 5 Defendant will then have an opportunity to show cause why a preliminary injunction should not 6 issue, at which point the Court can consider whether it is appropriate continue enjoining 7 Defendant from embarking on the cable replacement project for 75 days in order to permit 8 Plaintiff time to migrate its customers to a replacement network for the duration of the cable 9 replacement project. Without the temporary restraining order, however, Plaintiff is likely to be put 10 in breach of its contracts with customers in such a significant way as to potentially impose 11 irreparable reputational harm, and those customers are likely to experience significant and harmful 12 telecommunications and data outages. Relatedly, the injunction serves the public interest because 13 such data and communications outages may have far-reaching disruptive effects on both private 14 and public services—including potentially preventing individuals from placing 911 telephone 15 calls. Werley Decl. ¶ 25. 16 For the foregoing reasons, the Court GRANTS Plaintiff’s motion for temporary restraining 17 order. 18 B. Security 19 Federal Rule of Civil Procedure 65(c) provides that “[t]he court may issue a preliminary 20 injunction or a temporary restraining order only if the movant gives security in an amount that the 21 court considers proper to pay the costs and damages sustained by any party found to have been 22 wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The Ninth Circuit has “recognized that 23 Rule 65(c) invests the district court with discretion as to the amount of security required, if any.” 24 Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003) (internal quotation marks and citation 25 omitted) (italics in original). In this case, the Parties’ contract states that any “threatened breach of 26 the representations, warranties or covenants of [the] Agreement [that] would cause irreparable 27 injury” entitles the affected party to seek equitable relief “without the requirement of posting of 1 C. Date of Show Cause Hearing 2 The Court SETS a show cause hearing for 9:00 a.m. on April 24, 2025 at Courtroom 1 of 3 the Robert F. Peckham Federal Building & United States Courthouse, located at 280 South Ist 4 Street, San Jose, CA 95113. Any opposition brief filed by Defendant SHALL be received by the 5 Court by 1:00 p.m. on April 23, 2025. No reply is allowed. 6 || IV. ORDER 7 For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs motion for 8 || temporary restraining order is GRANTED. Defendant CVIN, LLC is enjoined from engaging in 9 || the replacement of its fiber optic cable networks located at its California-based fiber routes 10 || ranging from Soledad to Priest Valley and Wheeler Ridge to Castaic. 11 Defendant is ORDERED to appear before the Honorable Beth Labson Freeman on April 12 24, 2025 at 9:00 a.m. in Courtroom | of this Court, located at 280 South Ist Street, San Jose, CA 5 13 95113, to show cause why a preliminary injunction should not be ordered enjoining Defendant or 14 || its employees or agents, or any other persons acting with Defendant or on Defendant’s behalf, 3 15 from engaging in the replacement of the fiber optic cable networks located at Defendant’s a 16 || California-based fiber routes ranging from Soledad to Priest Valley and Wheeler Ridge to Castaic 3 17 for a period of 75 days. 18 Counsel for Plaintiff shall serve this Order to Show Cause and Temporary Restraining 19 Order, a copy of the Complaint, and a copy of the Ex Parte Motion for Temporary Restraining 20 Order and Order to Show Cause and its supporting papers upon Defendant CVIN, LLC d/b/a Vast 21 Networks by 6:00 p.m. on April 22, 2025. Defendant’s opposition papers shall be due by 1:00 22 || p.m. on April 23, 2025. 23 IT IS SO ORDERED. 24 25 || Dated: April 22, 2025

TH LABSON FREEMAN

27 United States District Judge 28