Rose Bud Catering et al v. Street Eats Limited et al
ORDER. The Plaintiffs, Rose Bud Catering and Rosalie Asebedo, Motion for Temporary Restraining Order and Injunction Pursuant to C.R.C.P. Rule 65 8 filed 7/25/2011, is DENIED. By Judge Robert E. Blackburn on 2/13/2012.(sah, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-01798-REB-BNB
(Consolidated with Civil Action No. 11-cv-01925-REB-BNB)
ROSE BUD CATERING, and
STREET EATS LIMITED,
BEST VENDORS MANAGEMENT, INC.,
HOME DEPOT U.S.A., INC., and
VICKI TURCOTTE, Individually and agent for
STREET EATS LIMITED, BEST VENDORS MANAGEMENT, INC., and HOME
DEPOT, U.S.A., INC.
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
This matter is before me on the Plaintiffs’, Rose Bud Catering and Rosalie
Asebedo, Motion for Temporary Restraining Order and Injunction Pursuant to
C.R.C.P. Rule 65 [#8]1 filed July 25, 2011. A response to the motion does not appear
on the docket. However, it is clear that the defendants oppose the relief sought in the
plaintiffs’ motion. I deny the motion.
I. JURISDICTION & CONTROLLING LAW
I have subject matter jurisdiction under 28 U.S.C. § 1332 (diversity). The
plaintiffs assert claims under the law of the State of Colorado. Colorado law controls
“[#8]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
the resolution of the substantive issues in this diversity case. Erie Railroad Co. v.
Tompkins, 304 U.S. 64, 78 (1938); Royal Maccabees Life Insurance Co. v. Choren,
393 F.3d 1175, 1180 (10th Cir. 2005). Federal law controls procedural issues. See,
e.g., Sims v. Great American Life Ins. Co., 469 F.3d 870, 877 (10th Cir. 2006).
II. STANDARD OF REVIEW
A temporary restraining order constitutes extraordinary relief. A party seeking a
temporary restraining order or a preliminary injunction must show (1) that the movant
has a substantial likelihood that the movant will eventually prevail on the merits; (2) that
the movant will suffer irreparable injury unless the injunction issues; (3) that the
threatened injury to the movant outweighs whatever damage the proposed injunction
may cause the opposing party; and (4) that the injunction, if issued, would not be
adverse to the public interest. Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980). In
addition to the foregoing factors, a party seeking a temporary restraining order also
must demonstrate clearly, with specific factual allegations, that immediate and
irreparable injury will result absent a temporary restraining order. FED.R.CIV.P. 65(b).2
Concurrently with this order, I entered an order granting the Defendants Motion
To Dismiss Amended Complaint [#63] filed October 13, 2011, as to most of the
plaintiffs’ claims in this case. The remaining claims are the plaintiffs’ claim for
defamation against defendants, Street Eats Limited and Vicki Turcotte, and the
associated claims for declaratory and injunctive relief. The plaintiffs’ motion for a
Originally, this case was filed in state court and then removed to this court. The fact that this
case originated in state court likely explains the plaintiffs’ reliance on Colorado Rule of Civil Procedure 65.
Now that this case is in federal court, federal law controls procedure in this case, including FED. R. CIV. P.
temporary restraining order must be evaluated in terms of the claims remaining in this
case. The plaintiffs’ complaint concerns the termination of two contracts under which
the plaintiffs operated food stands in front of two different Home Depot Stores. The
plaintiffs allege that the two contracts were terminated improperly. They seek an
injunction requiring defendant, Street Eats Limited, to permit the plaintiffs to continue to
operate their food stands.
Judged in relationship to the claims remaining in this case, I conclude that the
motion for temporary restraining order must be denied. First, the plaintiffs have not
established a substantial likelihood that they will succeed on the merits of their
defamation claim. This claim presents significant and disputed questions of fact
concerning the alleged falsity of the statements in question and whether those
statements caused any harm to the plaintiffs. Given these disputes, I cannot conclude
that the plaintiffs have shown a substantial likelihood that they eventually will prevail on
the merits of this claim.
Similarly, the plaintiffs’ claim for declaratory relief is tenuous. The plaintiffs seek
a declaration of their rights and status under the contracts that are the subject of the
complaint. As discussed in my order addressing the motion to dismiss, the allegations
in the complaint show that defendant, Street Eats Limited, validly terminated its
contracts with the plaintiff. If so, a declaratory judgment would not entitle the plaintiffs to
any relief beyond a declaration that the contracts were terminated validly. The plaintiffs
have not shown a substantial likelihood that they will prevail eventually on the merits of
their declaratory judgment claim.
In addition, I find and conclude that the plaintiffs have not shown that they will
suffer irreparable injury if an injunction does not issue. An irreparable injury is an injury
to the plaintiff that cannot be compensated after the fact by monetary damages. See,
e.g., Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1258 (10th Cir. 2003).
In their motion the plaintiffs argue that they will suffer irreparable injury absent an
injunction because “monetary damages are not an adequate remedy to correct the harm
or the overall chilling effect on all Food Service Operators connected with Home Depot
Stores.” Motion [#8], filed July 25, 2011, p. 5. Nothing in the plaintiffs’ motion or
complaint indicates that any damages caused by the plaintiffs inability to operate the
two food stands cannot be compensated adequately with monetary damages. The
plaintiffs do not have standing to assert the interests of “all Food Service Operators
connected with Home Depot Stores.”
IV. CONCLUSION & ORDER
Having considered the plaintiffs’ complaint [#65], the plaintiffs’ motion for
temporary restraining order [#8], and the record in this case, I find and conclude that the
plaintiffs have not shown either a substantial likelihood that they will eventually prevail
on the merits of their claims or that they will suffer irreparable injury unless an injunction
issues. Therefore, the plaintiffs’ motion must be denied.
THEREFORE, IT IS ORDERED that the Plaintiffs’, Rose Bud Catering and
Rosalie Asebedo, Motion for Temporary Restraining Order and Injunction
Pursuant to C.R.C.P. Rule 65 [#8] filed July 25, 2011, is DENIED.
Dated February 13, 2012, at Denver, Colorado.
BY THE COURT:
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