Lake Martin, Inc. et al v. Kroger Limited Partnership I et al

Filing 8

MEMORANDUM OPINION AND ORDER directing as follows: (1) the request contained in the Complaint 1 for a temporary restraining order is DENIED; (2) to the extent that plfs intend to seek a preliminary injunction as stated in the complaint, plfs 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 in order. Signed by Hon. Chief Judge Mark E. Fuller on 10/22/09. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION L A K E MARTIN, INC., et al., P L A IN T IF F S , v. K R O G E R LIMITED PARTNERSHIP I, et al., DEFEN DANTS. ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:09-cv-985-MEF

(W O - Do Not Publish)

M E M O R A N D U M OPINION AND ORDER O n October 22, 2009, Plaintiffs a "Verified Complaint Seeking Temporary, P r e lim in a ry and Permanent Injunctive Relief" (Doc. # 1). In its Complaint, Plaintiffs allege th a t defendants have repeatedly violated the Alabama Motor Fuel Marketing Act, Alabama C o d e § 8-22-1, et seq., by selling fuel below permissible rates. Plaintiffs seek injunctive re lie f and attorneys' fees and invoke this Court's subject matter jurisdiction pursuant to 28 U .S .C . § 1332 by alleging that the value of the relief sought exceeds the applicable amount in controversy for diversity jurisdiction. Upon assignment of the case, the Court convened a telephone status conference with Plaintiffs' counsel to discuss the request for a temporary re s tra in in g order. This Court now addresses only Plaintiffs' 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

n o te s that rather than preserving the status quo, Plaintiffs seek to alter it. By the motion for te m p o r a ry restraining order, it asks the Court to grant most of the substantive relief requested in its 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 Plaintiffs' submissions to this Court do Plaintiffs 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 five adverse parties or their attorneys. Moreover, Plaintiffs do not explicitly claim th a t such notice should not be required; nor does it provide any reasons why such notice s h o u ld not be required. Additionally, the Court finds the factual and legal predicate for the re q u e st for temporary restraining order insufficient. The injury Plaintiffs claim is damage to their businesses' profits. This is the kind of harm which monetary damages could repair. T h e re f o re , Plaintiffs have not show that immediate and irreparable injury, loss, or damage

2

w ill result absent entry of the requested temporary restraining order. See, e.g., Cunningham v . Adams, 808 F.2d 815, 821 (11th Cir. 1987) (An injury is irreparable only if it cannot be u n d o n e through monetary remedies). Accordingly, because Plaintiffs have failed to satisfy th e necessary prerequisites to the issuance of a temporary restraining order, the Plaintiffs' re q u e s t for a temporary restraining order in the Complaint (Doc. # 1) is due to be DENIED. 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 Plaintiffs intend to seek a preliminary injunction as stated in the C o m p la in t, Plaintiffs 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 Plaintiffs' 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 b e served on each defendant or his counsel. After such a motion is filed, the Court will set a status conference to discuss a briefing schedule for the motion and a date for the hearing o n the motion for preliminary injunction. D O N E this the 22nd day of October, 2009.

3

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

4