Guarantee Company of North America USA v. W.D. Wainwright & Sons, Inc. et al

Filing 3

ORDER that the request for Temporary Restraining Order is DENIED; that the petition for Preliminary Injunction is REFERRED to Magistrate Judge Terry F. Moorer so that he may expeditiously set a hearing on the request for preliminary injunction and provide a report and recommendation on the merits of that request. Signed by Hon. Chief Judge Mark E. Fuller on 10/30/2009. (cc, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION G U A R A N T E E COMPANY OF ) N O R T H AMERICA USA, a corporation, ) ) P la in tif f , ) ) v. ) ) W .D . WAINWRIGHT & SONS, INC., ) a corporation, et al., ) ) D e f e n d a n ts. )

C A S E NO. 2:09-cv-1003-MEF

(W O )

ORDER T h is cause is before the court on the application for temporary restraining order and p e t itio n for preliminary injunction, both of which are contained in the Verified Complaint f o r Exoneration of Surety (Doc. # 1) filed by the plaintiff Guarantee Company of North A m e ric a USA ("Plaintiff") on October 30, 2009. The Court has carefully considered the p l a i n t if f 's submissions and the applicable law and finds that the request for a temporary re s tra in in g order is due to be DENIED. 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 s s , 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 f f o rts , if any, which have been made to give the notice and the

reasons 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. Accordingly, it is hereby ORDERED that the request for a temporary restraining order (Doc. # 1) is DENIED. It is further ORDERED that the petition for preliminary injunction is REFERRED to M a g is tra te Judge Terry F. Moorer so that he may expeditiously set a hearing on the request f o r preliminary injunction and provide a report and recommendation on the merits of that re q u e s t. The court would require the parties to consider consenting to the reassignment of th e entire case to Magistrate Judge Moorer, but because of the limits of time in relation to the r e q u e s t for a temporary restraining order and a preliminary injunction, hearing on the p re lim in a ry hearing is referred to Magistrate Moorer. D O N E this 30th day of October, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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