Frontier Mechanical Inc v. McGowan et al

Filing 18

SCHEDULING ORDER re: 16 Plaintiff's Verified Emergency Motion for Ex Parte Temporary Restraining Order and Request to Set Hearing for a Preliminary Injunction with Notice to the Parties Pursuant to F.R.C.P. 65. Responses due by 1/28/2015 at 5:00 PM. Replies due by 1/30/2015. Motion Hearing set for 2/3/2015 at 10:00 AM in Courtroom A1001 before Judge Robert E. Blackburn. By Judge Robert E. Blackburn on 1/23/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 15-cv-00122-REB
FRONTIER MECHANICAL, INC., a Colorado corporation,
Plaintiff,
v.
NICK MCGOWAN and
INNOVATIVE MECHANICAL SYSTEMS, INC., a foreign corporation,
Defendants.

SCHEDULING ORDER
Blackburn, J.
The matter before me is the Plaintiff’s Verified Emergency Motion for Ex
Parte Temporary Restraining Order and Request to Set Hearing for a Preliminary
Injunction with Notice to the Parties Pursuant to F.R.C.P. 65 [#16]1 filed January 22,
2015. A scheduling order should be entered to arrange, schedule, and coordinate the
briefing and hearing, if any, necessary to resolve the request for a temporary restraining
order.
The defendants have been served with a summons and complaint in this case.
Return of service [#5, #6]. An affidavit of personal service [#16-4] attached to the
present motion shows that a motion for temporary restraining order and preliminary
injunction was served on defendant Nick McGowan on January 7, 2015. The present

1

“[#16]” 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.

motion is dated January 22, 2015, and it is not clear if the present motion is identical to
the motion served on Mr. McGowan or not. Therefore, I require the plaintiff to serve a
copy of the Plaintiff’s Verified Emergency Motion for ex Parte Temporary
Restraining Order and Request to Set Hearing for a Preliminary Injunction with
Notice to the Parties Pursuant to F.R.C.P. 65 [#16] on each of the defendants as
soon as practicable. In the alternative, counsel for the defendants may waive service
and accept service for the defendants.
This case originated with the filing of the complaint of the plaintiffs in the District
Court of Arapahoe County, Colorado, in case 2014CV33176. See complaint [#3]. The
defendants filed a Notice of Removal which created Civil Action No. 15-cv-00048-MSK.
In that case, Chief United States District Judge Marcia S. Krieger entered an order
remanding the newly created federal case to the state court. Subsequently, the
defendants filed their present Notice of Removal [#1] – their second notice of removal.
This unorthodox procedure generates questions about the propriety of such a second
notice of removal and, thus, the jurisdiction of this court. Accordingly, I require the
parties to brief these issues.
THEREFORE, IT IS ORDERED as follows:
1. That as soon as practicable, the plaintiff shall serve on the defendants (a) a
copy of the Plaintiff’s Verified Emergency Motion for Ex Parte Temporary
Restraining Order and Request to Set Hearing for a Preliminary Injunction with
Notice to the Parties Pursuant to F.R.C.P. 65 [#16]; and (b) this order;
2. That the response, reply, and hearing addressed in this order shall be limited
to the issue of the jurisdiction of this court and the request for a temporary restraining

-2-

order, as stated in the Plaintiff’s Verified Emergency Motion for ex Parte Temporary
Restraining Order and Request to Set Hearing for a Preliminary Injunction with
Notice to the Parties Pursuant to F.R.C.P. 65 [#16];
3. That as soon as practicable, the plaintiff shall file with the court a return of
service, or its legal and functional equivalent, demonstrating that the motion for
temporary restraining order [#16] has been served on the defendants;
4. That by Wednesday, January 28, 2015, at 5:00 p.m. mountain standard
time, the defendants shall file a response2 to the Plaintiff’s Verified Emergency
Motion for ex Parte Temporary Restraining Order and Request to Set Hearing for
a Preliminary Injunction with Notice to the Parties Pursuant to F.R.C.P. 65 [#16];
5. That by Friday, January 30, 2015, the plaintiff shall file a reply3 to the
response of the defendants;
6. That the response and reply shall address the request for a temporary
restraining order, the propriety of the filing by the defendant of a second notice of
removal in the same case, and, in view of these circumstances, the validity of the
contention of the defendants that this court has jurisdiction over this case; and
7. That absent a demonstrated need for a more immediate hearing, the court
shall hear the Plaintiff’s Verified Emergency Motion for Ex Parte Temporary
Restraining Order and Request to Set Hearing for a Preliminary Injunction with
Notice to the Parties Pursuant to F.R.C.P. 65 [#16], on Tuesday, February 3, 2015,

2

The response is subject to REB Civ. Practice Standard IV.B.1., which limits the number of
pages to 15.
3

The reply is subject to REB Civ. Practice Standard IV.B.1., which limits the number of pages to

10.

-3-

commencing at 10:00 a.m.
Dated January 23, 2015, at Denver, Colorado.
BY THE COURT:

-4-