Gene Martin Auto Sales, Inc. v. Davis et al

Filing 8

MEMORANDUM OPINION AND ORDER as follows: (1) The request contained in the Complaint for a temporary restraining order is DENIED; and (2) To the extent that Plaintiff intends to seek a preliminary injunction as stated in theComplaint, Plaintiff shall, after providing notice to all defendants named in the Complaint of both the existence of the Complaint and its intent to seek preliminary injunctive relief, file a proper motion for preliminary injunction as further set out. Signed by Judge Mark E. Fuller on 10/24/2007. (Attachments: # 1 Civil Appeals Checklist)(cb, )

Gene Martin Auto Sales, Inc. v. Davis et al

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Case 2:07-cv-00937-MEF-SRW

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION G E N E MARTIN AUTO SALES, INC., P L A IN T IF F , v. K E V IN DAVIS, et al., DEFEN DANTS. ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-cv-937-MEF

M E M O R A N D U M OPINION AND ORDER O n October 19, 2007, Plaintiff Gene Martin Auto Sales Inc. ("Plaintiff") initiated this la w s u it by filing a "Complaint" (Doc. # 1). In its Complaint, Plaintiff alleges that it is a an A la b a m a corporation that operates a business which sells farming equipment, used cars and a u to parts and which services vehicles and repairs vehicle bodies. Plaintiff further alleges th a t it is suing the Sheriff of Chilton County, Kevin Davis ("Davis") and six deputy sheriffs fo r Chilton County for actions they took with respect to a search and seizure of Plaintiff's b u s in e ss premises under color of law. Plaintiff alleges that the defendants took possession o f his place of business, closed it down, and seized certain items of Plaintiff's property. Plaintiff alleges that the search and the seizure of its property was not supported by probable c a u se or legal authority. Plaintiff's Complaint is supported by an affidavit from Gene Martin a s President of Gene Martin Auto Sales, Inc. Plaintiff seeks $10,000,000 in damages. It also a sk s the Court to issue a temporary injunction and a permanent injunction enjoining d e f en d a n ts from "further interfering with the operation of Plaintiff's business and requiring

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th e defendants to return to Plaintiff possession of its real estate, all checkbooks, records, and o th e r `personal property.'" Compl. at p. 2. S in c e the filing of the suit, the Court has had two telephone status conferences with P lain tiff 's counsel and with an attorney representing Davis, but apparently not the other six d e f e n d a n ts. The parties have represented that the business itself has been returned to

P la in t if f , but the Plaintiff contends that it cannot operate the business because its computers, w h ic h were seized have not been returned. Davis has filed a copy of a search warrant dated O c to b e r 15, 2007 authorizing the search of Plaintiff's computers and the affidavit of a c o m p u te r expert for the Alabama Department of Revenue indicating that it will take until the m o rn in g of October 25, 2007 to copy the information needed off of the computers due to the n u m b e r of computers and the size of the hard drives. Plaintiff contends that the morning of O ctob er 25, 2007 is too late and demands that the Court order the return of the computers t o d a y. Davis, who has appeared through counsel despite the fact that he has not yet been s e rv e d . Has filed a motion to dismiss the claims against him on various grounds including v a rio u s immunities. This Court now addresses only Plaintiff's request for a temporary restraining order. " O n e inherent characteristic of a temporary restraining order is that it has the effect of merely p re se rv in g the status quo rather than granting most or all of the substantive relief requested in the complaint." Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982). The Court

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n o te s that rather than preserving the status quo, Plaintiff seeks to change it. By the motion f o r temporary restraining order, it asks the Court to grant most of the substantive relief req u ested in its Complaint, namely, the return of its property. Of course, Plaintiff's

re m a in in g demand for monetary damages would remain to be litigated, but as the Court will e x p la in below this very demand undercuts the need for the issuance of the relief requested in the motion for temporary restraining order contained in the Complaint. Federal Rule of Civil Procedure 65 sets forth the applicable restrictions on this Court's a b ility to grant a temporary restraining order. For example, it is clear from the text of Rule 6 5 ( b ) that a temporary restraining order may not be granted unless (1) it clearly appears from specific facts shown by affidavit or b y the verified complaint that immediate and irreparable injury, lo ss , or damage will result to the applicant before the adverse p a rty or that a party's attorney can be heard in opposition, and (2 ) the applicant's attorney certifies to the court in writing the e ffo r ts , if any, which have been made to give the notice and the r e a so n s supporting the claim that notice should not be required. F e d . R. Civ. P. 65(b) (emphasis added). The Court finds that Plaintiff has failed to satisfy th e requirements of Federal Rule of Civil Procedure 65. Nowhere in Plaintiff's submissions to this Court does Plaintiff certify in writing the efforts, if any, which have been made to give w ritte n or oral notice of this lawsuit or of this application for a temporary restraining order to the all seven adverse parties or their attorneys. Moreover, Plaintiff does not explicitly c la im that such notice should not be required; nor does it provide any reasons why such n o tice should not be required. Additionally, the Court finds the factual and legal predicate

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f o r the request for temporary restraining order insufficient. The injury Plaintiff claims is d a m a g e to its business. As is evident for the damage for ten million dollars in damages in th e Complaint, even Plaintiff contends that this is the kind of harm which monetary damages c o u ld repair. Therefore, Plaintiff has not show that immediate and irreparable injury, loss, o r damage will result absent entry of the requested temporary restraining order. See, e.g., C u n n in g h a m v. Adams, 808 F.2d 815, 821 (11th Cir. 1987) (An injury is irreparable only if it cannot be undone through monetary remedies). Accordingly, because Plaintiff has failed to satisfy the necessary prerequisites to the issuance of a temporary restraining order, the P la in tif f 's request for a temporary restraining order in the Complaint (Doc. # 1) is due to be D E N IE D . F o r the foregoing reasons it is hereby ORDERED as follows: 1 . The request contained in the Complaint (Doc. # 1) for a temporary restraining order is DENIED. 2 . To the extent that Plaintiff intends to seek a preliminary injunction as stated in the C o m p la in t, Plaintiff shall, after providing notice to all defendants named in the Complaint o f both the existence of the Complaint and its intent to seek preliminary injunctive relief, file a proper motion for preliminary injunction. Said motion shall be supported by appropriate f a ctu a l documentation and a brief containing citations to specific legal authority for all legal a rg u m e n ts and setting forth Plaintiff's contentions regarding its legal entitlement to the relief so u g h t. A copy of all materials relating to any such motion for preliminary injunction shall

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b e served on each defendant or his counsel. After such a motion is filed, the Court will set a briefing schedule for the motion and a hearing on the motion. D O N E this the 24th day of October, 2007.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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