Aurelio et al v. Correctional Corporation of America et al
ORDER. ORDERED that plaintiffs Emergency Motion for a Perliminary [sic] Injunction and Temporary Restraining Order [Docket No. 1] is DENIED without prejudice. Signed by Judge Philip A. Brimmer on 06/15/17. (jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 17-cv-01073-PAB
NICHOLAS J. AURELIO and
ALLEN DE ATLEY,
CORRECTIONS CORPORATION OF AMERICA,
CORE CIVIC, INC.,
MS. WALTER, and
DAVID M. ZUPAN,
This matter is before the Court on plaintiffs’ Emergency Motion for a Perliminary
[sic] Injunction and Temporary Restraining Order [Docket No. 1].
Plaintiffs filed the motion pro se on May 1, 2017, Docket No. 1, but are now
represented by counsel. Docket No. 3. On May 4, 2017, Magistrate Judge Gordon P.
Gallagher ordered plaintiffs to cure deficiencies with their filing, which deficiencies
included not filing a complaint. Docket No. 4; see also Fed. R. Civ. P. 3 (“A civil action
is commenced by filing a complaint with the court.”). On June 2, 2017, plaintiffs filed
their complaint. Docket No. 6. The case was reassigned to this Court on June 12,
2017. Docket No. 9.
The Court will deny plaintiff’s motion without prejudice as having been
superseded by the filing of plaintiffs’ complaint. Plaintiffs’ complaint names different
parties than their motion. Compare Docket No. 1 with Docket No. 6. Further, while
plaintiffs’ complaint seeks injunctive relief and includes as exhibits the affidavits plaintiffs
filed in support of their motion, plaintiffs’ complaint does not request a temporary
restraining order or a preliminary injunction. Docket No. 6 at 6, ¶ 25; Docket No. 6-1;
Docket No. 6-2.
The Court notes that the motion also fails to comply with the Local Rules. Under
D.C.COLO.LCivR 65.1(a), a motion for a temporary restraining order:
shall be accompanied by a certificate of counsel or an unrepresented
(1) that actual notice of the time of filing the motion, and copies of all
pleadings and documents filed in the action to date or to be presented to
the court at the hearing, have been provided to opposing counsel and any
unrepresented adverse party; or
(2) the efforts made by the moving party to provide the required notice and
documents. Except as provided by Fed. R. Civ. P. 65(b)(1), the court shall
not consider an ex parte motion for temporary restraining order.
Additionally, D.C.COLO.LCivR 65.1(b) requires the submission of a “proposed
temporary restraining order” with a motion for such relief. Defendants have not been
served and plaintiffs’ motion contains neither a certification that actual notice has been
provided to defendants nor a certification that efforts have been made to provide such
notice. Docket No. 1. Likewise, the motion does not contain a proposed temporary
restraining order or a certification compliant with Fed. R. Civ. P. 65(b)(1)(B). Id.
Accordingly, it is
ORDERED that plaintiffs’ Emergency Motion for a Perliminary [sic] Injunction and
Temporary Restraining Order [Docket No. 1] is DENIED without prejudice.
DATED June 15, 2017.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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