Applied Underwriters, Inc. v. Lichtenegger

Filing 7

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER signed by Judge Garland E. Burrell, Jr on 11/30/15 ORDERING for the stated reasons, Plaintiff's motion for a TRO, (ECF No. 5), is DENIED. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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APPLIED UNDERWRITERS, INC.
a Nebraska Corporation,

v.

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ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER

Plaintiff,

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No. 2:15-cv-02445-GEB-CKD

LARRY J. LICHTENEGGER; J.
DALE DEBBER; PROVIDENCE
PUBLICATIONS, LLC,
a California Limited
Liability Company,
Defendants.

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On

November 25,

2015,

Plaintiff

filed

a

motion

for

a

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temporary restraining order (“TRO”). (Pl.’s Notice of Mot. & Mot.

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for

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Plaintiff has provided oral or written notice to Defendants. (TRO

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Checklist 1, ECF No. 5-10.) Specifically, Plaintiff asserts in

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the TRO Checklist, which is attached to its November 25, 2015

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filing: “Notice has not yet been given, because the parties have

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not been served, and we await a hearing date on the TRO from the

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judge. Immediately upon receipt of that time and date, we will

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notify the parties via hand service.” (Id.)

TRO,

ECF

No.

5.)

Nothing

in

that

filing

evinced

that

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However, on November 27, 2015, the day after Thanksgiving

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and when the courthouse was closed, Plaintiff noticed its motion

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for hearing at 9:00 AM on November 30, 2015. (Pl.’s Am. Notice of

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Mot., ECF No. 6.) That notice is vacated since it has not been

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shown

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opportunity to respond to the motion.

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sufficient

provide

Defendants

with

a

meaningful

Federal Rule of Civil Procedure (“Rule”) 65(b)(1) concerns
the issuance of TROs without notice. It states:

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The court may issue a temporary restraining
order without written or oral notice to the
adverse party or its attorney only if:

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(A) 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

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(B) the movant’s attorney certifies in
writing any efforts made to give notice and
the reasons why it should not be required.

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to

Fed. R. Civ. P. 65(b)(1).

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Further, Local Rule 231 prescribes, inter alia: “Except in

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the most extraordinary of circumstances, no temporary restraining

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order shall be granted in the absence of actual notice to the

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affected party . . . or a sufficient showing of efforts made to

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provide notice.” E.D. Cal. R. 231(a) (citing Fed. R. Civ. P.

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65(b)). Local Rule 231(c) further prescribes that “[n]o hearing

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on a temporary restraining order will normally be set unless”

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certain documents are provided to the Court and to the affected

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parties, including: “an affidavit detailing the notice or efforts

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to effect notice to the affected parties or counsel or showing

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good cause why notice should not be given.” E.D. Cal. R. 231(c).

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Here,

Plaintiff

has

neither

shown

that

it

has

provided

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appropriate notice to Defendants of its intention to file a TRO,

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nor the required good cause averment in an affidavit explaining

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“why notice should not be given.” E.D. Cal. R. 231(c).
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Nor has Plaintiff shown facts justifying the use of the

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expedited TRO proceeding it seeks. It should be understood that

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absent

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proceeding should be used.

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such

a

factual

showing

a

preliminary

injunction

order

For the stated reasons, Plaintiff’s motion for a TRO, (ECF

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No. 5), is DENIED.

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Dated:

November 30, 2015

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