Marshall v. Alabama College of Osteopathic Medicine

Filing 3

ORDER: Before the court is Plaintiff's James D. Marshall's Petition for Emergency Injunctive Relief, which the court construes as a motion for a temporary restraining order. (Doc. # 1 .) Accordingly, it is ORDERED that Mr. Marshall' ;s motion for a temporary restraining order is DENIED. It is further ORDERED that the above-styled action is REASSIGNED to Magistrate Judge David A. Baker and REFERRED to the Magistrate Judge pursuant to 28 U.S.C. 636 for further proceedings and determination or recommendation as may be appropriate. Signed by Chief Judge William Keith Watkins on 7/9/2018. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES D. MARSHALL,
Plaintiff,
v.
ALABAMA COLLEGE OF
OSTEOPATHIC MEDICINE,
Defendant.

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CASE NO. 1:18-CV-631-WKW
[WO]

ORDER
Before the court is Plaintiff’s James D. Marshall’s Petition for Emergency
Injunctive Relief, which the court construes as a motion for a temporary restraining
order. (Doc. # 1.) That motion is due to be denied because it does not meet the
requirements of Rule 65(b) of the Federal Rules of Civil Procedure. The court also
construes the filing as a motion for a preliminary injunction, and the court will enter
a briefing order on that motion once Defendant Alabama College of Osteopathic
Medicine has been served and makes an appearance in this action.
Federal Rule of Civil Procedure 65(b) governs requests for temporary
restraining orders. A temporary restraining order may be issued without notice only
if “specific facts in an affidavit or a verified complaint clearly show that immediate
and irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition” and the movant “certifies in writing any efforts

made to give notice and the reasons why it should not be required.” Fed. R. Civ. P.
65(b)(1)(A)–(B).
Mr. Marshall has failed to meet the prerequisites for the exceptional remedy
of a temporary restraining order. Admittedly, the motion could be construed as a
verified complaint: It includes a section under the heading “Plaintiff’s Verification”
in which Mr. Marshall “verifies as true and accurate to the best of his knowledge
this petition for injunctive relief as submitted to this honorable court with the
additional exhibits” attached (Doc. # 1, at 21), which would seem to meet 28 U.S.C.
§ 1746’s requirement that he “declare (or certify, verify, or state) under penalty of
perjury” that the allegations in his motion are “true and correct.” But even if it is a
verified complaint for the purposes of Rule 65(b), the facts alleged in it do not
“clearly show that immediate and irreparable injury, loss, or damage will result to”
Mr. Marshall before Defendant has a chance to respond. Moreover, Mr. Marshall
has not submitted the certification required by Rule 65(b)(1)(B).
Accordingly, it is ORDERED that Mr. Marshall’s motion for a temporary
restraining order is DENIED.
It is further ORDERED that the above-styled action is REASSIGNED to
Magistrate Judge David A. Baker and REFERRED to the Magistrate Judge pursuant
to 28 U.S.C. § 636 for further proceedings and determination or recommendation as
may be appropriate.
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DONE this 9th day of July, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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