Homes & Loans, Inc. et al v. Wimberly et al

Filing 10

ORDER signed by Judge Morrison C. England Jr. on 6/7/05 ORDERING Plaintiffs' Ex Parte Application/Motion for Temporary Restraining Order to Show Cause re Preliminary Injunction 2 DENIED without prejudice. Plaintiffs may resubmit their Application after rectifying the deficiencies. (Krueger, M)

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Homes & Loans, Inc. et al v. Wimberly et al Doc. 10 Case 2:05-cv-01117-MCE-PAN Document 10 Filed 06/07/2005 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 ----oo0oo---11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. THOMAS ANTHONY WIMBERLY, an individual; RON JONES dba NORTHERN CALIFORNIA HOMES & LOANS, an individual, and DOES 1 through 25, inclusive, Defendants. ----oo0oo---On June 6, 2005, Plaintiffs filed a complaint in this matter alleging trade name infringement in violation of 15 U.S.C. 1125 (a). Ten additional pendent state claims have also been Concurrently with the filing of their complaint, HOMES & LOANS, INC., a California corporation; and LINDA PRICE, an individual, NO. CIV. S 05-1117 MCE PAN Plaintiffs, ORDER UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA asserted. Plaintiffs also submitted an Ex Parte Application for Temporary Restraining Order. application. /// 1 The Court has read and considered that Dockets.Justia.com Case 2:05-cv-01117-MCE-PAN Document 10 Filed 06/07/2005 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs' Ex Parte Application is DENIED, without prejudice. Counsel are directed to the provisions of Local Rule 65-231, which governs the issuance of a temporary restraining order. Subsection (a) states clearly that "[e]xcept in the most extraordinary of circumstance, no temporary restraining order shall be granted in the absence of actual notice to the affected party and/or counsel, by telephone or other means, or a sufficient showing of efforts made to provide notice." Rule 65-231(a) provides further that the requisite notice must include, inter alia, "the nature of the relief to be requested." Moreover, subdivision (c) of the Rule goes on to provide that certain documents must be provided to not only the court but also to the parties, including both the complaint, the Motion for temporary restraining order, and the supporting brief and affidavits. Here, counsel for Plaintiffs have attached a letter sent to counsel for Defendant Wimberly and to Defendant Jones dated June 3, 2005. (Decl. Of James P. Chandler, Ex. 2). While that letter sets forth Plaintiffs' intent to seek a temporary restraining order, it does not otherwise elucidate the precise nature of the relief to be requested, as required by Local Rule 65-231(a). In addition, the letter states plainly that "Plaintiffs' complaint and moving papers will be provided at the time of the hearing." Counsel have not demonstrated any good cause (not to mention "extraordinary circumstances") why these documents were not provided to Defendants in accordance with Rule 65-231(c). /// 2 Case 2:05-cv-01117-MCE-PAN Document 10 Filed 06/07/2005 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In addition, Counsel for Plaintiffs have further failed to provide (1) a proposed temporary restraining order with a provision for a bond; and (2) a proposed order with blanks for fixing the time and date for hearing a motion for preliminary injunction, the date for the filing of responsive papers, the amount of the bond if any, and the date and hour of issuance. See Local Rule 65-231(c)(6) and (7). Plaintiffs may resubmit their Application after rectifying these deficiencies. IT IS SO ORDERED. DATED: June 7, 2005 ___________________________________ MORRISON C. ENGLAND, JR UNITED STATES DISTRICT JUDGE 3

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